Lanka Orient Leasing Company Ltd. v. Ali and Another
LANKA ORIENT LEASING COMPANY LTD.
ALI AND ANOTHER
COURT OF APPEALDE SILVA, J„
C.A. NO. 840/97.
DC REV. NO. 3918/M.
MARCH 18, 1999.
JULY 6 AND 26, 1999.
Civil Procedure Code – S. 146 (2) – Amendment of Answer to reject – Plaintin limine – As Court has no jurisdiction in view of Arbitration Clause – Necessaryamendment.
The arbitration agreement was part and parcel of the plaint.
The amendment is a necessary amendment on which the right decisionof the case appears to depend.
APPLICATION in Revision from the order of the Additional District Judge ofColombo.
Romesh de Silva, PC with L. B. J. Peiris for the plaintiff-petitioner.
S. A. Parathalingam, PC with M. F. Musthapa for defendant-respondents.
Cur. adv. vult.
September 03, 1999.
This is an application to revise the order dated 06.10.1997 of thelearned Additional District Judge of Colombo allowing to amend theanswer of the defendant.
Sri Lanka Law Reports
 3 Sri L.R.
The plaintiff-petitioner instituted this action on 13.05.1988 againstthe defendant-respondent jointly and severally for the recovery ofRs. 700,269 with interest thereon and also for the recovery of theproperty described in the schedule to the plaint.
When the matter came up for trial on 12.11.1996 it was submittedon behalf of the 1 st defendant-respondent that the documents annexedto the plaint marked A and B had not been served on him and that,therefore, it was necessary for him to amend the answer. The petitionerrefuted the same but without prejudice to his rights agreed to handover copies of same to the 1 st defendant-respondent and accordinglythey were served on the registered Attorneys to the 1st defendantby registered post. The petitioner also reserved his rights to objectto the amended answer after it was tendered. Thereafter, on 10.12.1996amended answer was tendered on behalf of the 1st defendant-respondent and the petitioner filed objections thereto and when thismatter came up for inquiry on 05.05.1997 it was submitted on behalfof the 1st defendant-respondent that in view of the conditionscontained in the document "A" the matter had to be referred toarbitration and that the District Court had no jurisdiction to hearthis matter.
On 06.10.1997 the Additional District Judge made his order allowingthe amended answer on the basis that according to the procedureof 12.11.1996 when the 1st defendant-respondent sought permissionto amend the answer the petitioner had not objected to the amendedanswer and therefore the petitioner cannot now object to the amend-ment of the answer.
The learned Additional District Judge in his order dated 06.10.1997has stated as follows:
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Lanka Orient Leasing Company Ltd. v. Ali and Another
It is abundantly clear that the plaintiff has not objected only tothe granting of a date for the amendment of the answer to be tenderedto Court but subject to his objections, if any. Although the reasoningof the learned Additional District Judge allowing the amendment iserroneous, we are unable to agree with the contention that thedecision to allow the amendment is also erroneous.
According to the amended answer dated 10.12.1996 the onlyamendment that the defendant sought to make was that ". . . theplaint should be rejected in limine as this Court has no jurisdictionto entertain this plaint and/or hear and determine this action in viewof the arbitration clause in the agreement marked A annexed to theplaint". This action is based on the agreement marked A which isannexed to the plaint. By Article 24 of the agreement marked PIAwhich is part and parcel of the plaint which is the arbitration clausereferred to above, the parties have agreed to “refer all disputes,differences and questions whatsoever which may, from time to time,or at any time hereafter arise or occur between the parties toarbitration". This agreement being part and parcel of the plaint evenwithout an amendment of the answer an issue could have been raisedat the trial under section 146 (2) of the Civil Procedure Code,according to which "where parties are not agreed as to questionsof fact or of law to be decided between them, the Court shall uponthe allegation made in the plaint, or in answer to interrogatoriesdelivered in the action, or upon the contents of documents producedby either party . . . proceed to record the issues on which theright decision of the case appears to the Court to depend".
On a perusal of the proceedings dated 12.11.1996 we find thatthe above statement of the learned Additional District Judge iserroneous. The proceedings of 12.11.1996 relevant to this applicationis as follows:
Sri Lanka. Law Reports
 3 Sri L ft
It is to be noted that according to the proceedings dated 05.05.1997this matter has been raised before the learned District Judge.Accordingly, the 1st defendant pointed out that in view of the agree-ment marked "A" the Court has no jurisdiction to hear this matter asit has to be referred to arbitration. On that date the learned AdditionalDistrict Judge made order that the question whether this matter shouldgo before an arbitrator or not be decided on written submissionstendered by the parties and a date was given to tender writtensubmissions. On written submissions being tendered the learnedAdditional District Judge without making an order on that matter, on17.07.1997 ordered that as the matter fixed for inquiry on 05.05.1997was regarding the objections raised by the petitioner to the applicationmade by the 1st defendant-respondent to amend the answer, the 1stdefendant-respondent to tender written submissions on the same.Although the learned Additional District Judge decided on 05.05.1997to make order regarding the question of arbitration on writtensubmissions tendered by the parties without making such an orderhe directed the parties again to make written submissions regardingthe question of amendment of the answer.
In considering all the above facts and specially the arbitration clausereferred to above in the agreement marked A which is part and parcelof the plaint we are of the view that the amendment sought to bemade by the defendant is in accordance with the pleadings of thiscase. In view of the submissions made before us; the direction ofthe learned District Judge dated 05.05.1997 and the contents of Article24 of the agreement marked A' we are of the view that this amendmentis a necessary amendment "on which the right decision of the caseappears to depend". The amendment sought to be made by thedefendant is solely based on the document marked "A" which is partand parcel of the plaint. In view of the above reasons we are of theview that there are no valid reasons to interfere with the order madeby the learned Additional District Judge allowing the amended answerdated 06.10.1997. Hence, this application for revision is dismissed withRs. 2,500 as costs to be paid by the plaintiff-petitioner to thedefendant-respondent.
DE SILVA, J. – I agree.