NADARAJAH v. DANIEL

029-SLLR-SLLR-1999-V-1-NADARAJAH-v.-DANIEL.pdf


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NADARAJAH
v.DANIEL
COURT OF APPEALDE SILVA, J.,
WEERASURIYA, J.
CALA NO. 274/95
D.C. COLOMBO NO. 5593/L
AUGUST 24, 1998.
Civil Procedure Code – S. 75 (3) claim in Reconvention – Failure to file replicationon the claim in reconvention – raising of issues – Is the plaintiff precluded fromraising issues on prescription/waiver in the absence of a replication.
The plaintiff-petitioner instituted action seeking a declaration of title to the landin question and ejectment therefrom and damages. The defendant-respondentprayed for a dismissal of the action and for a declaration that a certain deedbe declared null and void on the ground of laesio enormis. After issues wereaccepted, trial de-novo commenced before another Judge. The same issues werethen raised. The learned District Judge refused three issues which had earlierbeen accepted by her predecessor. It was contended that court had erred byholding that a claim in reconvention had been made and that court has misdirecteditself by holding that the failure to file replication debarred the plaintiff-petitionerfrom raising any issue on matters arising from pleadings.
Held:
A claim in reconvention need not arise out of or even be closely connectedwith the original claim. It should in its nature be capable of being set offagainst or adjusted with the plaintiffs claim.
Per Weerasuriya, J.
"It is settled law that Civil Procedure Code does not restrict the issues• to the pleadings. The trial Judge is vested with the duty to ascertain whatthe parties have intended by the pleadings and frame issues."
A party is not debarred from raising an issue on any matter arising froma claim in reconvention even in the absence of a replication.
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Cases referred to:
Nandias Silva v. Unambuwa – 76 CLW 25.
Brampy Appuhamy v. Gunasekera – 50 NLR 235.
Babapulle v. Rajaratnam – 5 NLR 41.
Fernando v. Fernando – 23 NLR 266.
Silva v. Perera – 17 NLR 206.
Weerawago v. Bank of Madras – 2 CLR 11.
Lokuhamy v. Sirimal – 2 CLR 125.
Appuhamy v. Kirihamiya – 2 NLR 155.
Bank of Ceylon, Jaffna v. Chelliah Pillai – 64 NLR 25.
Liyanage and others v. Seneviratna – 1986 (1) CALR 308.
APPLICATION in Revision from the order of the District Court of Colombo.S. Mahenthiran for plaintiff-petitioner.
Pubudu Alwis for substituted defendant-respondent.
Cur. adv. vult.
September 30, 1998.
WEERASURIYA, J.
By this application, plaintiff-petitioner is seeking to set aside the orderof the District Judge dated 20.11.1995, rejecting issues Nos. 13, 14and 15 raised by him at the trial.
The facts as set out by learned counsel for the plaintiff-petitionerare briefly as follows. The plaintiff-petitioner instituted action by plaintdated 25.09.1987, against the defendant-respondent for a declarationof title to the land morefully described in the schedule to the plaint,ejectment of the defendant-respondent therefrom and damages. Thedefendant-respondent by his answer dated 04.01.1989, prayed for adismissal of the action and for a declaration that deed No. 264 bedeclared null and void on the ground of laesio enormis. The caseproceeded to trial on 10.01.1991 on the amended answer dated02.03.1990. Thereafter, the case was taken up for further trial on15.03.1991 and 14.08.1992 where an application was made to amend
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the answer. This application was resisted by the plaintiff-petitioner andthe learned District Judge after an inquiry, by her order dated12. 03. 1992, rejected the said amended answer.
On 12.10.1994, trial commenced de novo before a new AdditionalDistrict Judge and the plaintiff-petitioner raised issues Nos. 1 – 8 andthe defendant-respondent raised issues Nos. 9-12. Since the plaintiff-petitioner objected to issue No. 12 of the defendant-respondent, theDistrict Judge after hearing Counsel by her order dated 30.03.1995,accepted the said issue. However, on 29.08.1995, plaintiff-petitionerraised issues Nos. 13-15 and upon the objections raised by thedefendant-petitioner, after hearing the parties the trial Judge by herorder dated 30.11.1995, rejected the said three issues. The presentapplication has been filed against the aforesaid order.
At the hearing of this application, learned Counsel for the plaintiff-petitioner submitted the following matters:
that the learned District Judge had erred by holding that thedefendant-respondent had made a claim in reconvention;
that the learned District Judge had misdirected herself byholding that failure to file a replication debarred the plaintiff-petitioner from raising any issue on matters arising frompleadings.
Learned counsel for the defendant-respondent submitted:
that the plaintiff-petitioner had failed to file a replication onthe claim in reconvention of the defendant-respondent basedon laesio enormis;
that issues Nos. 13 and 14 being special pleas of waiverand prescription respectively, plaintiff-petitioner is precludedfrom raising such issues in the absence of a replication.
He cited the cases of Nandias Silva v. Unambuwaf" and BrampyAppuhamy v. Gunasekerd21 in support of his submission.
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Section 75 (3) of the Civil Procedure Code provides for a claimin reconvention which will have the same effect as a plaint in a crossaction so as to enable court to pronounce a final judgment in thesame action both on the original and on the cross claim. This provisionaffords an opportunity for a defendant to have the whole of his counterclaim adjudicated upon in the same action.
A claim in reconvention need not arise out of or even be closelyconnected with the original claim, (vide Babapulle v. Rajaratnarrf3)).For instance, in an action based on house rent, it is open to thedefendant to claim title to the premises and compensation forimprovements.
Further, it was held in Fernando v. FernanddA) that where a plaintiffsues on a deed in which there is a mistake of which the plaintiffis aware, the defendant is entitled to claim in reconvention, rectificationof the deed.
In Silva v. Pererat51 where the law relating to claim in reconventionwas discussed it was laid down as follows:
"A claim in reconvention should be of such a nature that therespective claims of the plaintiff and the defendant may be mutuallyadjusted and a final decree entered in favour of one party or theother. The claim in reconvention need not be based on, or con-nected with the transaction or matter out of which the plaintiffscause of action arises, but it should in its nature be capable ofbeing set off against or adjusted with the plaintiff's claim."
In the instant case, in the amended answer dated 02. 03. 1990,the defendant-respondent prayed that deed No. 264 dated28. 05. 1981, attested by S. Selvanayagam be declared null and voidon the ground of laesio normis.
Upon an examination of all the material, I am of the view that thelearned District Judge had rightly come to a conclusion that therewas a claim in reconvention in the amended answer.
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The question which remains to be considered is, whether or nota plaintiff has the legal right to frame issues on matters raised inthe answer by way of a claim in reconvention in the absence of areplication which deny such averments.
It was observed by Clarence, J. in Weerawago v. The Bank ofMadras as follows:
“Although under the Civil Procedure Code, pleadings are notto go beyond answer except by special leave, yet if a defendant'sanswer contains averments requiring to be met, it is none the lessincumbent upon plaintiff to meet them, either by obtaining leaveto reply or by asking the court under section 146 of the Code,to frame an issue upon defendant's' averments."
In Lokuhamy v. SirimaF1 it was held that under the Civil ProcedureCode there is no necessity for a replication to any new matter in theanswer, but such new matter will be taken as denied or if the plaintiffdesires to question its sufficiency as an answer to the declaration,he may at the trial have an issue settled by the court on the point.
Where a defendant makes an averment in his answer, and noreplication has been filed to meet it, it is open to the plaintiff if hedenies the averment, to have an issue raised on it, and thus put thedefendant to the proof of the facts averred, (vide Appuhamy v.Kirihamiyafe)).
It is settled law that Civil Procedure Code does not restrict theissues to the pleadings. The trial Judge is vested with the duty toascertain what the parties have intended by the pleadings and frameissues. This proposition of law was reiterated in the case of Bankof Ceylon, Jaffna v. Chelliah Pillai191.
Learned counsel for the defendant-respondent cited the case ofG. P. Nandias Silva v. T. P. Unambuwa (supra) and Brampy Appuhamyv. Gunasekera (supra) in support of the proposition that waiver andprescription being special pleas, a plaintiff is precluded from raisingsuch issues in the absence of a replication to meet them. It is to
CANadarajah v. Daniel (Weerasuriya, J.)245
be noted that in the case of G. P. Nandias Sitva v. T. P. Unambuwa(supra) it was held that –
"where the plea of estoppel has not been taken in the pleadingsno issue may be raised thereon."
At page 27 Wijayatilaka, J. stated as follows:
"Learned counsel for the appellant has drawn my attention tothe fact that estoppel has not been pleaded and therefore Com-missioner was well within his right in rejecting his issue. I aminclined to agree with him."
It is to be observed, with respect that Wijayatilaka, J. had notindulged in a discussion of relevant provisions of law nor has hereferred to any previous decisions on this point. This case hadbeen discussed in the case of Liyanage and Others v. Seneviratnaf'°>at page 308 as follows:
“The learned Judge in that case has expressed an opinion whichis purely obiter. There has been no discussion of or reference toany relevant decisions. I am therefore of the view the case is notan authority for the proposition that an issue relating to estoppelcannot be raised in the absence of specific pleadings."
In the case of Brampy Appuhamy v. Gunasekera (supra) it washeld that where the effect of the Prescription Ordinance is merely tolimit the time within which an action may be brought, the court willnot take the statute into account unless it is expressly pleaded byway of defence. Basnayake, J. (as his Lordship then was) at p. 255stated as follows:
“An attempt was made to argue that the defendant's claim wasbarred by Prescription Ordinance (Cap. 55). That plea is not takenin the plaintiff’s replication. There is no issue on the point nor isthere any evidence touching it."
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It is to be observed that in the instant case when an attempt wasmade to raise an issue on that point objection was taken that theplaintiff-petitioner had no legal right to raise an issue, in the absenceof a replication.
In the circumstances, it seems to me that a party is not barredfrom raising an issue on any matter arising from a claim inreconvention even in the absence of a replication.
The District Judge by his order dated 01.01.1991, had acceptedall the issues raised by the parties (1 – 13) as evidenced from theproceedings of that day. However, trial commenced de novo beforea new District Judge on 12.10.1994 and learned counsel for thedefendant-respondent on 12.10.1994, objected to issues Nos. 13-15and the trial Judge by her order dated 03.11.1992, refused the saidissues. It is thus an accepted fact that the trial Judge before whomtrial de novo commenced by her order dated 30.11.1995 rejected theidentical issues which had been accepted by her predecessor.
The District Judge had taken the view that all issues mustnecessarily arise from pleadings and the plaintiff-petitioner havingfailed to file a replication is not entitled to raise such issues. Uponan examination of the case law, the conclusion is inescapable thatthe District Judge had erred by refusing the issues which had earlierbeen accepted by her predecessor.
Therefore, I set aside the order of the District Judge dated 20.11.1995and allow this application with costs. The District Judge is directedto accept issues Nos. 13, 14 and 15 raised by the plaintiff-petitionerand proceed with the trial and conclude it expeditiously.
DE SILVA, J. – I agree.
Application allowed.