014-SLLR-SLLR-2010-V-1-KANAGARAJ-vs.-ALANKARA.pdf
CA
Kanagaraj us. Alankara
185
KANAGARAJ VS. ALANKARACOURT OF APPEALERIC BASNAYAKE J.
CHITRASIRI J.
CALA 33/2007DC COLOMBO 20660/LSEPTEMBER 14, 2007APRIL 23, 2007
Civil Procedure Code amended by Acts Nos 79 of 1988, 9 of 1991 -Section 93 of Pleadings – Law after the 1991 amendment to Section 93- Rei vindicatio – action – Burden of proof? – Date first fixed for trial?
The trial Judge refused to accept the amended answer of the 1*defendant.
In the rei vindicatio action filed against the 1st, 2nd and 3rd defendants,the plaintiff pleaded that his predecessors in title became the owner ofthe larger land and he purchased a portion of the property. The plaintiffcontended that, the 2nd defendant had begun to use a portion of theproperty.
The Is' and 2nd defendants filed separate answers – the 1“ defendantstates that he purchased the land from a third party and that he hadleased the land to the 2nd defendant. After the trial was postponed,and before the case was taken up for trial, the defendant sought toamend the answer. By the amendment, the 1" defendant sought todispute the corpus admitted previously and describe the title of the 1“defendant. This was rejected by the trial Judge on the ground that the1** defendant has admitted the corpus, and that it is not necessary forthe 1“ defendant to describe in detail his title.
On leave being sought,
Held:
The Law had undergone tremendous changes Section 93 of theCode was amended by Act 79 of 1988 and later by Act 9 of 1991 –
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the wide discretion enjoyed by Court has been restricted. Thediscretion is allowed to be exercised only to applications madebefore the day fixed for trial.
Amendments on or after the first date of trial can now be allowedonly in very limited circumstances – namely when the Court issatisfied that grave and irremediable injustice will be caused if theamendment is not permitted and the party is not guilty of laches.
Held further:
In a Rei Vindicatio action it is the duty of the plaintiff to provehis title. If the plaintiff fails to prove his title, action will bedismissed. If the defendant has a title he could plead it and pray for adeclaration. The 1st defendant only seeks a dismissal of theaction in the answer and in the proposed amended answer – thus bydisallowing the amendment the defendant would lose nothing. Atthe time of filing the answer, the 1“ defendant was well aware ofwhat the 1“ defendant now wants in the amendment. No explanationis offered for his failure not to mention them in the answer. Whatis contemplated by Section 93 (2) are those necessitated due tounforeseen circumstances.
Per Eric Basnayake, J.
“The fact that the trial did not commence has no bearing. What isimportant is the date first fixed for trial”.
APPLICATION for leave to appeal from an order of the District Court of
Colombo.
Cases referred to:-
Abeywardane vs. Euginhamy 1984 – 2 Sri LR 231 (distinguished)
Seneviratne vs. Chadappa – 20 NLR 60 (distinguished)
Colombo Shipping Co. Ltd vs. Chiraya Clothing (pvt.) Ltd. – 1995 – 2Sri LR 97
Silva vs. Goonetilake – 32 NLR 217
Hamine vs. Appuhamy – 52 NLR at 49-50
Muthusamy vs. Senaviratne – 31 CLW 91
Myaka vs. Haveman – 1948 – 3 SA 457
CA
Kanagamj vs. Alankara
(Eric Basnayake J.)
18 7
Jeena vs. Minister of Lands – 1955 – 2 SA 380
Avdiappa vs. Indian Oversees Bank – 1995 – 2 Sri LR 13
Kuruppu Arachchi vs. Andreas – 1996 – 2 Sri LR 11
Ceylon Insurance Co. Ltd vs. Nanayakkara – 1999 – 3 Sri LR 50
Ikram Mohamed PC with M. S. A Wadood for 1“ defendant – petitioner.J. P. Gamage with K. H. D. Priyadharshani for plaintiff-respondent.
Cur.adv.vult.
May 05th 2010ERIC BASNAYAKE J.
The 1** defendant-petitioner (l8t defendant) is seekingto have the order dated 23.1.2007 of the learned AdditionalDistrict Judge of Colombo set aside. By this order the learnedJudge had refused to accept the amended answer of the 1*‘defendant.
This is a rei vindicatio action filed on 10.3. 2005 againstthe 1st, 2nd and 3rd defendants praying inter alia to have theplaintiff-respondent (plaintiff) declared the owner of theproperty described in the schedule to the plaint and to ejectthe 1st and 2nd defendants. The plaintiff claimed that hispredecessor in title was one H. P. G. S. Abeysiriwardene whobecome the owner of a larger land by deed No. 2166 of
The plaintiff purchased, by deed No. 2208 of
a portion of this property which is described inthe schedule to the plaint. The plaintiff states that the 2nddefendant began to use a portion of the property owned bythe plaintiff about two months prior to 16.1.2005 and on
the 2nd defendant commenced constructing awall.
The 1st defendant filed answer on 16.6.2005. In theanswer the 1st defendant admits the corpus stating that he
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purchased the land referred to in the plaint on 15.10.2003from the Central Finance Company Ltd. The 1st defendantalso stated that this land was given on a lease by him to the2nd defendant. The 2nd defendant filed a separate answer. Inthat the 2nd defendant too referred to the land mentioned inthe plaint as the subject matter. He said that this propertyhad been leased to the 2nd defendant by the 1st defendant on1.1.2005. After filing the answers the case was fixed for trialfor 21.10.2005. However the trial was postponed for anotherdate. Before the case was taken up for trial the 1st defendantmade an application on 8.3.2006 to amend the answer.
By this amendment the 1st defendant wished to disputethe corpus admitted previously. The 1st defendant had filedthree new schedules to the proposed amended answer. Heclaimed that he is in possession of the land described in the3rd schedule. The 1st defendant also replaced paragraph 8 ofthe answer with 13 sub paragraphs to describe the title of the1st defendant. The 2nd defendant did not move to amend hisanswer.
The learned Judge had observed that the 1st defendanthad admitted the land in question in the answer. The 1stdefendant while denying the plaintiff’s title to this land, hadclaimed title to it in the body of the answer. However in theprayer the 1st defendant had prayed for a dismissal of theplaintiffs action and not sought a declaration of title. For thisreason the learned Judge found that it is not necessary forthe 1st defendant to describe in detail his title and found thatin the event the amended answer is refused the 1st defendantwould suffer no loss.
The learned counsel for the 1st defendant submitted in thewritten submissions tendered to court that the amendmentwas only to describe the devolution of title. It was submitted
CA
Kanagamj vs. Akmkara
(Eric Basnayake J.)
189
that the defendant had challenged the plaintiffs title andpleaded the title of the 1st defendant in the answer. The learnedcounsel submitted that the trial has not commenced yet.The learned counsel relied on the judgment of Abeywardenevs. EuginahamtfV in support of his submission.
In Euginahamy’s case (supra) the plaintiff moved to amendthe plaint when it was taken up for trial. This move was dueto the submission of the counsel for the defendants that theparticulars of the plaintiffs title to the land had not beenspecified. The amendment was refused by the trial Judge.The Court of Appeal however had allowed the amendment forthe reason that the amendment was to give full particularsof their title. L. H. De Alwis J Held that (at 233) “all that theysought to do by the amendment was to give full particularsof their title to the land in dispute. . . the lateness of theapplication for amendment is not a ground for refusing theapplication. The learned Judge relied on the judgmentof Seneviratne vs. Candappa{2) where Shaw J said “howevernegligent or careless may have been the first omission andhowever late the proposed amendment, the amendmentshould be allowed if it can be made without injustice to theother side”.
Since the date of pronouncing these judgments thelaw has undergone tremendous changes due to which theprinciple on which the amendments were allowed by thesedecisions cannot be considered as good law. The sectionrelating to amendments of pleadings is found in section 93 ofthe CPC. At the time of pronouncing Euginahamy’s case in1984, the section stood as follows:-
At any hearing of the action or »im«> in the
presence of or after reasonable notice to the parties to
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the action before final judgment, the court shall have fullpower of amending in its discretion … all proceedings.
This section was amended by Act No. 79 of 1988 byrestricting amendments to cases where there are exceptionalcircumstances. The section is as follows:-
“The court may, in exceptional circumstances. ♦ .at any hearing … or at anv time. . . before finaljudgment, amend all pleadings”
The application of the above section was drasticallyreduced by a further amendment by Act No. 9 of 1991 whichstands without an amendment up to now. The relevantportion is as follows
93 (1) Upon application made to it before the dav firstfixed for trial of the action… the court shall have fullpower of amending in its discretion, all pleadings. . .
Thus the wide discretion enjoyed by court all this timehas been restricted. This discretion is allowed to be exercisedonly to applications made before the day first fixed for trial.Section 93 (2) is as follows
93 (2) On or after the day first fixed for the trial andbefore the final judgment, no application for theamendment of pleadings shall be alowed unless thecourt is satisfied for reasons to be recorded by the courtthat grave and irremediable injustice will be causedif such amendment is not permitted and on no otheraround and that the party so applying has not beenguilty of laches (emphasis added). (3) & (4) are notreproduced.
CA
Kanagarqj vs. Alankara
(Eric Basnayake J.)
191
Amendments on and after the first date of trial can nowbe allowed only in very limited circumstances, namely, whenthe court is satisfied that grave and irremediable injusticewill be caused if the amendment is not permitted and theparty is not guilty of laches (Colombo Shipping Co. Ltd. vs.Chiraya Clothing (pvt.) Ltd (3)
The learned counsel for the 1st defendant failed toaddress court with regard to the above requirements in thewritten submission tendered. This being a rei vindicatioaction it is the duty of the plaintiff to prove his title. Thesignificance of this requirement is that, where the plaintifffails to prove title in himself, judgment in the vindicatoryaction will be given in favour of the defendant, even thoughthe letter has not been able to establish title. “There isabundant authority that a party claiming a declaration oftitle must have title himself. The authorities unite in holdingthat the plaintiff must show title to the corpus in disputeand that, if he cannot, the action will not lie” (Macdonell
J. in De Silva vs. GoonetiUek&A) Dias S. P. J. in AbeykoonHamine vs. Appuhamt/5) stated that “this being an action reivindicatio, and the defendant being in possession, theinitial burden of proof was on the plaintiff to prove that hehad dominium to the land in dispute”. “It is an elementaryrule that in an action for declaration of title, it is for theplaintiff to establish title to the land he claims and not for thedefendant to show that the plaintiff has no title to it” (SoertszS. P. J. in Muthusamy vs. Seneviratnef61
“Prima facie, proof that the appellant is owner and thatthe respondent is in possession entitles the appellant to anorder giving him possession, i.e. to an order for ejectment.This prima facie right of the owner could be met by therespondent by proof that he had been given the right ofpossession either by the appellant or by some other person
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who was entitled to grant such right and that the right wasstill current. In such a case the onus would be on the plaintiffto prove his ownership and the defendant’s possession; oncehe discharged this onus, the onus would be on thedefendant to prove the grant of the right of possession to him”(Myaka vs. Havemann,7> (Jeena vs. Minister of Landst® (Thelaw and the cases cited by G. L. Peiris, The Law of Property inSri Lanka Vol. 1 pg 348, 9)
If the plaintiff fails to prove title, the action will bedismissed. If the defendant has a better title he could pleadit and pray for a declaration. The 1st defendant only seeksa dismissal of the plaintiffs action in the answer and theproposed amended answer. Thus by disallowing theamendment the defendant would lose nothing.
At the time of filing the answer the 1st defendant waswell aware of what the l81 defendant now wants in theamendment. The 1st defendant does not offer any explanationfor his failure not to mention them in the answer. Theamendments contemplated by section 93 (2) are those thatare necessitated due to unforeseen circumstances. (Avdiappavs. Indian Overseas BankP Kuruppuarachchi vs. Andreas<10)Ceylon Insurance Co. Ltd. vs. Nanayakkara{U).
The fact that the trial did not commence has no bearing.What is important is the date first fixed for trial. Therefore thesubmission with regard to that fails.
For the foregoing reason I am not inclined to interferewith the order of the learned Judge. Therefore leave is refusedwith costs.
CHITRASIRI J. – I agree.
Application dismissed.