021-SLLR-SLLR-2007-V-1-KARUNARATNE-v.-ALWIS.pdf
214
Sri Lanka Law Reports
[2007] 1 Sri L.R
KARUNARATNE
v
ALWIS
COURT OF APPEALWIMALACHANDRA, J.BASNAYAKE, J.
CALA 7/2002DC NEGOMBO 4787/LDECEMBER 13, 15, 2007MARCH 15, 2007
Civil Procedure Code – Section 93(1) – Section 93(2) -Amendment of pleadings- What is the day first fixed for trial? Is it the day the trial actually begun?
Held:
The day first fixed for trial could mean the day the trial actually began. Anyamendment made prior to the date the trial was begun comes under S93(1)empowering the Judge granting wide discretion in allowing amendments.
“It is clear that the date of trial is not necessarily the first date on which the caseis fixed for trial, but would also include any date to which the trial ispostponed".
APPLICATION for leave to appeal from an order of the District Court ofNegombo.
160
CA
Karunaratne v Alwis
(Eric Basnayake, J.)
215
Cases referred to:
Ceylon Insurance Company v Nanayakkara and another – 1999- 3 Sri LR50 at 52.
Siripura Hewavasam Pushpa v Leelawathie Bandaranayake and three others- 2004 – 3 Sri LR 162 (SC)
Padmasiri Nanayakkara with IndikadeAhms for defendant-petitioner.
Dr. S.F.A. Cooray with DM Siriwardane for plaintiff-respondent.
June 15,2007
ERIC BASNAYAKE, J.
The defendant-petitioner (defendant) filed this application 01seeking to have the order of the learned District Judge dated31.12.2001 set aside. By this order the learned District Judge hadallowed the amended plaint.
This case was filed on 11.10.1993. The answer was filed inMarch 1994. A replication was filed on 4.10.1994. On 26.2.2001 thedefendant filed an amended answer to which the plaintiff filedobjections on 5.4.2001. However, on 10.5.2001 the plaintiffwithdrew the objections due to which the amended answer wasaccepted. On 26.6.2001 the plaintiff filed an amended plaint 10together with a motion giving separately the amendments. This wasobjected to by the defendant. The learned District Judge afterinquiry accepted the amended plaint by his order dated 31.12.2001marked "J".
Order dated 31.12.2001
The learned Judge stated in the order that the plaintiff movedto amend the plaint to include the deed number and to describe i ndetail the last will proved in Court. The schedule had beenamended to give a detailed description. The trial had not yet begun.
The answer had been amended prior to this. Therefore the learned 20Judge had concluded that no prejudice would be caused to thedefendant.
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Sri Lanka Law Reports
[2007] 1 Sri L.R
The petitioner averred that the learned Judge had failed toconsider section 93 of the Civil Procedure Code and also to satisfythat grave and irremediable injustice would be caused to thedefendant if the amendment is not allowed. The petitioner furthercomplained that the leaned Judge had failed to consider thenegligence and the long delay.
The learned Counsel for the defendant complained that theimpugned order could not be considered as one valid in law. He 30further submitted that the learned Judge has not considered the lawthat is applicable to the amendments of pleadings contained insection 93 of the Civil Procedure Code. The learned Counselmentioned the case of Ceylon Insurance Company v Nanayakkaraand another) at 52 where Weerasuriya, J. held that "as set out insection 93 (2) the amendment of pleadings on or after the first dateof trial can now be allowed only in limited circumstances. It prohibitsCourt from allowing an application for amendment (a) unless it issatisfied that grave and irremediable injustice be caused if theamendment is not allowed and (b) the party applying has not been 40guilty of laches. Further the Court is required to record reasons forconcluding that both conditions referred to above have beensatisfied".
The learned Counsel submitted that the learned Judge hasfailed to consider both aspects namely whether grave andirremediable injustice would be caused to the plaintiff if theamendment is not allowed and whether the plaintiff is guilty oflaches.
Section 93 of the Civil Procedure Code is as follows:
93 (1) Upon application made to it before the day first fixed so
for trial of the actionthe court shall have full power of
amending in its discretion, all pleadings in the action, by wayof addition or alteration or of omission. 2
(2)On or after the day first fixed for the trial of the action andbefore the final judgment, no application for the amendmentof any pleadings shall be allowed unless the court issatisfied, for reasons to be recorded by the Court that graveand irremediable injustice will be caused if such amendment
Karunaratne v AMs
(Eric Basnayake, J.)
217
CA
is not permitted, and on no other ground and that the party soapplying has not been guilty of laches.60
Not reproduced.
Not reproduced.
In Siripura Hewawasam Pushpa v Leelawathie Bandaranayakeand three others<2>. S.N. Silva C.J. referring to the day first fixed fortrial said thus: "it is clear that the date of trial is not necessarilythe first date on which the case is fixed for trial, but would alsoinclude any date to which the trial is postponed" (emphasisadded).
Therefore the day first fixed for trial could mean the day the trialactually began. Any amendment made prior to the date the trial was 7obegun therefore comes under section 93 (1) empowering the Judgegranting wide discretion in allowing amendments. While consideringthe impugned order, it appears that the learned Judge hadconsidered the fact that the trial had not yet begun. He also seemsto be conscious of the fact that the defendant too was allowed toamend the answer a few days before. He had also considered thefact that the amendment gives a detailed description of the plaintiff'stitle. The order of the learned Judge contains only 12 lines as referredto by the learned Counsel for the defendant. However those 12 linescontain all that is required.80
Therefore I do not find any reason to interfere with the order ofthe learned District Judge. The defendant's application is dismissedwith costs fixed at Rs. 10,000/-.
WIMALACHANDRA, J.
Application dismissed.
gree.