Jayaratna v. Jayaratne and Another
v.JAYARATNE AND ANOTHER
COURT OF APPEALAMARATUNGA, J. ANDBALAPATABENDI, J.
CALA NO. 362/2001 (LG)
DC MT. LAVINIA NO. 2808/2000 DOCTOBER 22, 2002
Divorce – Trial fixed – Amendment of answer sought – Cause of action basedon adultery arose after answer was filed – Is it permissible?
(1) The cause of action based on adultery has arisen after the defendant hasfiled his answer. It is a different and independent cause of action. Rights ofparties are determined as at the date of plaint.
APPLICATION for leave to appeal with leave granted.
Sunil F. A. Cooray with G. Rodrigo and Chithrartanda Uyanage for defendant-petitioner.
Geoffrey Alagaratnam with N. Adamally for respondent.
Cases referred to :
Bednarz v. Bednarz – (2002) 1 Sri LR 99 (Distinguished).
Annachalan v. Mohamadu – (1914) 17 NLR 251 (Dintinguished).
Cur. adv. vult.
Sri Lanka Law Reports
 3 Sri L.R.
November 28, 2002GAMINI AMARATUNGA, J.
On 22. 10. 2002, we have heard the learned counsel for the petitioner 01and the learned counsel for the respondent to decide whether thequestion of law raised in this application for leave to appeal is aquestion of law to be considered by this Court after granting leaveto appeal. After we heard the submissions of both counsel we thenand there granted leave to appeal. At that stage both parties informedus that they had filed written submissions relevant to the matter tobe decided in the appeal and invited us to give our decision havingconsidered the order of the learned District Judge (which is thesubject-matter of this appeal) and the submissions made by both 10learned counsel and also the written submissions filed by both parties.
On 05. 01. 2000 the plaintiff-respondent (the plaintiff) instituted thisaction against the defendant-petitioner (the defendant) for divorceon the ground of malicious desertion. After summons were issuedand served on the defendant husband his answer had been fifedon 20. 09. 2000. After some calling dates the trial was fixedfor 22. 06. 2001. On the day fixed for trial, the counsel for thedefendant was not available due to illness and the trial was re-fixedfor 27. 09. 2001.
On 25. 09. 2001, the draft of an amended answer was filed along 20with a motion seeking permission to amend the answer. The amendedanswer alleged that the plaintiff-respondent has committed adulteryon or about 02. 06. 2001 with the co-respondent sought to be added.The date of alleged adultery is a date subsequent to the date onwhich the defendant filed his answer.
The learned Judge after hearing both parties refused to permit thedefendant to file amended answer. The cause of action based onadultery has arisen after the defendant had filed his answer. It is adifferent and independent cause of action. Rights of the parties aredetermined as at the date of the plaint. The appellant in his written 30submissions has cited the case of Bednarz v. Bednain support
Jayaratna v. Jayaratne and Another(Gamini Amaratunga, J.)
of his appeal. But, on the facts of that case it appears that the causeof action based on adultery has accrued even before the plaint wasfiled and the question decided in that case was the manner in whichthe co-respondent is to be added. The appellant has also cited thecase of Arunachalam v. Mohamadd2) in support of the proposition thata defendant is entitled to claim in reconvention even on a cause ofaction which arose after the action was instituted. In that case theappellant sought to make a claim in reconvention on a cause of actionwhich arose after the institution of the action. The learned DistrictJudge disallowed the issues raised relating to the claim in recon-vention holding that ‘a claim in reconvention can only be allowed onthe relative position of the parties as they were at the time of theinstitution of the action and not on any cause of action arising since.The claim in reconvention in that case was set up in view of thewrongful manner in which the plaintiff obtained a warrant of arrestagainst the appellant in the same case. The Supreme Court in appealreversed the order of the learned District Judge holding that a claimin reconvention may be made in respect of a cause of action thataccrued at anytime before the filing of the answer.
It appears that this decision has been based on the facts peculiarto that case and does not lay down a rule which operates as anexception to the general rule that the rights of the parties are to bedetermined as at the date of the plaint. On the other hand even ifit is held that the decision in that case is not limited to the particularcircumstances of that case but is applicable as a general rule, stillit is not applicable to the present case as the cause of action basedon adultery has arisen after the answer was filed.
For these reasons the order of the learned District Judge refusingto permit the defendant to file amended answer is affirmed and theappeal is dismissed without costs.
BALAPATABENDI, J. – I agree.