051-SLLR-SLLR-2005-V-3-NIMALRAJ-vs.-THARMARAJAH-AND-OTHERS.pdf
CA
Nimalraj Vs.
Tharmarajah and Others (Andrew Somawansa, J.)
309
NIMALRAJVS.THARMARAJAH AND OTHERSCOURT OF APPEAL.
SOMAWANSA, J. (P/CA)
WIMALACHANDRA, J.
CA LA 23 1200/20C4.
DC MT. LAVINIA 1061/98/L.
JUNE 29th, 2005.
Civil Procedure Code – amended by Act,section 9 of 1991-section18, section 21, section 93 (2)-Addition of a party – Opting to file replication
No steps taken to comply with section 21-Application to amend plaint
Laches.
The Plaintiff-respondents instituted action against the 1strespondent and 2nd defendant-respondents seeking a declaration oftitle to the property in question. The 3rd defendant was added as aparty subsequently. No steps were taken by the plaintiffs under section21, and without filing an amended plaint proceeded to file a replication.After 3 days of trial, the plaintiffs-respondents moved to amend theplaint, the trial Judge permitted the amendment. The defendant-petitioner contended that the older was erroneous in the face of themandatory provisions contained in section 93 (2) and section 21.
HELD:
The application to amend the plaint was clearly a belatedapplication made after three trial dates – section 93 (2) wouldbecome operative and applicable.
There are two limbs in section 93 (2) and the two ingredientsare separate and distinct requirements and a party seeking toamer,-J t.'->? Dleadhg? after the first date of trial shouldestablish the existence of both ingredients.
In the instant action the plaintiff-respondents are clearly guiltyof laches. The proposed amended plaint was filed nearly 2years after the 3rd defendant-petitioner was added as a party.
Per Somawansa. J. (P/CA) :
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(2005) 3 Sri L. R.
"Where a defendant is added in terms of section 18, depending onthe facts and circumstances of each case the provisions of section 21only or provisions of section 21 read with section 93 of the Code wouldapply-in the instant case, certainly in view of the facts andcircumstances the provisions of section 93 (2) could also apply".
APPLICATION for leave to appeal from an order of the District Court ofMt. Lavinia.
.Cases referred to :
Atalugamage Herath Prasanna Silva vs John Arul Rajah – CALA41/2001 -DC Colombo 17771/L-CA M 27.06.2002.
Arudiappam vs The Indian Overseas Bank – 1995 2 SRI LR 131
Paramalingam vs Sirisena and Another – 2001 2 SRI LR 239
Ceylon Insurance Co. Ltd vs Nanayakkara – 1993 3 SRI LR 50 •
Ranjan Suwandaratne with Ranjan Perera for 3rd defendant – petitionerJ. D. Kahawithana for plaintiff-respondent.
Cur. adv. vult.
November 25, 2005.
ANDREW SOMAWANSA, J. (P/CA)
This is an application seeking leave to appeal from an order madeby the Additional District Judge of Mt. Lavinia dated 14.01.2004over-ruling the objection taken by the 3rd defendant-petitioner tothe acceptance of an amended plaint and accepting the same andif leave is granted to set aside the aforesaid order impugned by the3rd defendant-petitioner and to refuse the plaintiffs-respondents’belated application to amend the plaint.
CA
Nimalraj Vs.
Tharmarajah and Others (Andrew Somawansa, J.)
311
As per minute dated 31.08.2004 leave to appeal has been grantedon the following question of law :
“When a defendant is added in terms of section 18 ofthe Civil Procedure Code what is the provision of the Codewhich is applicable to the amendment of the plaint? Insuch a situation is the plaintiff required to satisfy Courtof the existence of the conditions laid down in section93(2) of the Code before he is allowed to amend the plaintor can the plaintiff, without satisfying the conditions laiddown in section 93(2), amend the plaint by virtue of theright conferred on him by section 21 of the Code ?
When the appeal was taken up for argument both parties agreedto resolve the matter by way of written submissions and both partieshave tendered their written submission. However prior to theconsideration of the aforesaid questions of law it would be pertinentto ascertain the relevant facts which culminated in the learnedAdditional District Judge making the impugned order.
The plaintiffs-respondents instituted the instant action againstthe 1st defendant-respondent and the deceased 2nd defendantseeking a declaration of title to the subject matter of this actionand ejeptment of the defendants and those holding under them andfor recovery of damages. The defendants in their answer pleadedthat their son-in-law Nimalarajah who was subsequently added asthe 3rd defendant-petitioner is the lawful tenant of the premises insuit since 1991 and that the 1st defendant-respondent and thedeceased 2nd defendant who is the wife of the 1st defendant-respondent are holding under the tenant the 3rd defendant-petitioneras his agent or licensees in the said premises, that in the year1994 the son-in-law and the daughter left to the United Kingdom
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and are resident there and that the 1st defendant-respondent hasbeen duly appointed as the power of Aftorney holder of the aforesaidNimalraj. They further pleaded that the 1st Plaintiff-respondent hasagreed with the said Nimalraj to sell the premises in suit as peragreement marked X and the said Agreement and the 1 st plaintiff-respondent in violation of the said agreement failed and neglectedto transfer the premises in suit and in the premise prayed for adismissal of the action and also moved to add the aforesaid Nimalrajas a party defendant to the instant action on the basis that he is anecessary party for the full and final adjudication of the dispute.
However Nimalraj was not added as a party and after thecommencement of the trial and the recording of issues on anapplication of thd1 aforesaid Nimalraj he was added as the 3rddefendant to the instant action as per order dated 15.06.2001. Itappears that although Nimalraj was added as 3rd defendant theplaintiffs-respondents totally failed to take steps in terms ofmandatory provisions contained in section 21 of the Civil ProcedureCode. Be that as it may, after the 3rd defendant-petitioner wasadded as a party he filed answer disclosing matters pertaining tohis tenancy and the agreement to sell the property in suit andmoved for a dismissal of the plaintiffs-respondents' action and alsoclaimed in reconvention for a declaration that the 3rd defendant-petitioner is the lawful tenant of the premises in suit and is entitledto remain in occupation of the premises in suit and for an orderdirecting the plaintiffs-respondents to pay a sum of Rs. 3.5 milliontogether with legal interests from the year 1995 to the 3rd defendant-petitioner and also claimed the right to retain possession until thepayment of the aforesaid amount. Thereafter the plaintiffs-resppndents without filing an amended plaint in terms of Section21 of the Civil Procedure Code proceeded to file a replication on1 st February 2002 and the case was fixed for trial for the first time
CA
Nimalraj Vs.
Tharmarajah and Others (Andrew Somawansa, J.)
313
thereafter for 4th June, 2002. After three postponements of trialwhen the case was taken up for trial on the March 2003 certainobjections were raised by the counsel for the 3rd defendant-petitioner and counsel for the plaintiffs-respondents obtained a dateto consider whether the plaint should be amended. Thereafter onor about 02.04.2004 plaintiffs-respondents sought to amend theplaint. The 3rd defendant-petitioner objected to the application madeon behalf of the plaintiffs-respondents to amend the plaint and afterthe conclusion of the inquiry into these objections taken by the3rd defendant-petitioner the learned Additional District Judgepermitted the amendment of the plaint and it is from this order thatthe 3rd defendant-petitioner has prefarred this appeal.
It is contended by counsel for.the 3rd defendant-petitioner thatthe order dated 14.01.2004 made by the learned Additional DistrictJudge of Mt. Lavinia is completely erroneous on the face of tl^emandatory provisions contained in Section 93(2) and Section 21 ofthe Civil Procedure Code and the order should necessarily be setaside. Further it is argued by counsel for the 3rd defendant-petitioner that the plaintiffs-respondents are guilty of laches andshould suffer the consequences of their laches and negligence inprosecuting the instant action and there is no basis to condonesuch a blatant and apparent laches and to permit the aforesaidextremely belated amended plaint. I would say I am impressedwith these matters raised by counsel for the 3rd defendant-petitionerfor there is blatant and apparent laches on the part of the plaintiff-respondent in applying to amend the plaint.
At this point, it would be useful to refer to the sections of theCivil Procedure Code which are relevant to the issue at hand.
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Section 18(1) “The court may on or before the hearing, upon theapplication of either party, and on such terms as the court thinksjust, orderthat the name of any party, whether as plaintiff or asdefendant improperly joined, be struck out; and the court may atany time, either upon or without such application, and on suchterms as the court thinks just, order that any plaintiff be made adefendant, or that any defendant be made a plaintiff, and that thename or any person who ought to have been joined, whether asplaintiff or defendant, or whose presence before the court may benecessary in order to enable the court effectually and completelyto adjudicate upon and settle all the questions involved in thataction, be added.
(2) Every order for such amendment or for alteration of partiesshall state the facts and reasons which together form the groundon which the order is made. And in the case of a party being addedthe added party or parties shall be named, with the designation“added party” in all pleadings or processes or papers entitled inthe action and made after the date of the order”.
Section 21 “Where a defendant is added, the plaint shall, unlessthe court directs otherwise, be amended in such manner as maybe necessary, and a copy of the amended plaint shall be served onthe new defendant and on the original defendants”.
93(2) “On or after the day first fixed for the trial of the action andbefore final judgment, no application for the amendment of anypleadings shall be allowed unless the Courtis satisfied, for reasonsto be recorded by the court, that grave and irremediable injusticewill be caused if such amendment is not permitted, and on no otherground, and that the party so applying has not been guilty of laches”.
CANimalraj Vs.315
Tharmarajah and Others (Andrew Somawansa, J.)
It is contended by counsel for the plaintiffs-respondents thatSections 18 and 21 are time tested provisions of the Civil ProcedureCode on which there is a plentitude of judgments and judicial dictawhich have become an important part of our law. What is moreimportant is that Section 21 is a special provision of law, dealingwith a particular situation, that is an amendment consequent uponan order for addition under section 18. In every sense, it is a specialand particular legislative provision.
Section 93(2) of the Civil Procedure Code, covers amendment topleadings in general and is clearly a general, enactment. Theamending Act No. 9 of 1991 which brought in Section 93(2) doesnot expressly amend either Section 21, which stands as it stoodall these years. It cannot be contended that Section 21 has beenby implication varied or restricted by the general enactment of 93(2).Thus, he submits that the special provision in Section 21 read withSection 18 cannot be affected or varied or restricted by a generalenactment as authoritative statements of the rule generaliaspecialibus non derogant.
In.this respect counsel has made reference to quotations fromHalsbury 4th Edition Vol. 44 paragraph 875. Caries on Statute Law7th Edition page 222 also 5th Edition page 349. Maxwell on theInterpretation of Statutes 12th Edition page 196. However in viewof the facts and circumstances of this case, I am unable to agreethat the aforesaid rules of interpretation would be applicable to theissue at hand for the simple reason that after the 3rd defendant-petitioner was added as a party the plaintiffs-respondents forreasons best known to them without complying with the mandatoryrequirements in. section 21 has opted to file a replication andthereafter proceed to trial.
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(2005) 3 Sri L. R.
Counsel for the plaintiffs-respondents further submits that the3rd defendantrpetitioner having secured his addition as a party,ostensibly to enable Court to effectually and completely adjudicateupon and settle all the questions involved in the action, and havingmade a very substantial counter claim, the 3rd defendant-petitioneris now seeking to undermine the letter and the spirit of Section 18of the Civil Procedure Code by opposing the amendment of theplaint.
He further submits that if the plaint is not amended the plaintiffs-respondents will not be able to get a binding judgment against the3rd defendant-petitioner or seek the ejectment of the 3rd defendant-petitioner and recover damages from him. This is exactly what theamendment in the plaint of the plaintiffs-respondents marked “G1"accepted by the original Court has sought to achieve. This reliefwas particularly important because the other defendants in theiranswer claim to occupy under the 3rd defendant-petitioner.
However if the amended plaint is not accepted and in the evento,f the plaintiffs-respondents being successful in the District Courtaction, they will have to file another action to seek the said relieffrom the 3rd defendant-petitioner, thereby leading to multiplicity ofactions and defeating the very objective of Section 18.
In this respect he refers to the decision of an unreported case ofAtalugamge Herath Prasanna Silva vs. John Arul Rajah^ whereinNanayakkara J. held :
“Having granted permission to the plaintiff to add thenew owner of the property in suit, as a party, can thecourt prevent the plaintiff from taking the next logical
CA
Nimalraj Vs.
Tharmarajah and Others (Andrew Somawansa, J.)
317
step of amending the plaint? Once a party is added nextinevitable and logical step would be an amended plaint.
Therefore all the argument advanced on the basis ofsection 93(2) of. the Civil Procedure Code would berendered futile in the circumstances when the facts andcircumstances ofthe case are also examined it become*evident that the addition of a new owner ofthe pio^rtyin suit as a party and also an amendment to the plaintresulting from such addition would be vital to the properand complete effectual determination of the issue involvedin this case.”
However the Judge according to the photo copy of that judgmentannexed to the written submissions of the plaintiffs-respondentsthe order for the adding a new party had been made on 18.02.2001while the order for rejecting the amended plaint is dated 23.01.2001.Facts in that case appears to be misleading.
Be that as it may, in the instant action the facts andcircumstances does not warrant the application of any of the rulesof interpretations or decisions referred to by counsel for the plaintiffs-respondents for the simple reason that the plaintiffs-respondentshad purposely not complied with the mandatory provisions of Section21 of the Civil Procedure Code but had opted instead to file areplication and proceed to trial. I might also say that the facts andcircumstances in the instant action clearly warrants the applicationof provisions contained in section 93(2) for as already stated byorder dated 15.06.2001 the 3rd defendant-petitioner was added asa party defendant. However the plaintiffs-respondents for reasonsbest known to them did not take steps to comply with the mandatoryprovisions of Section 21 ofthe Civil Procedure Code. In November
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2001 the 3rd defendant-petitioner filed his answer with a counterclaim and on or about 1 st February 2002 the plaintiffs-respondentsfiled replication but did not seek to comply with the provisions ofSection 21 of the Civil Procedure Code. Thereafter the trial wasfixed for 10.07.2002 and was postponed for 06.11.2002 and againpostponed to 05.03.2003. On 05.03.2003 the 3rd defendant-petitioner objected to any issue being raised against him claimingany relief from him. Thereafter counsel for the plaintiffs-respondentshad obtained a date to consider whether the plaint should beamended and on 02.04.2003 a proposed amended plaint was filednearly 2 years after the 3rd defendant-petitioner was added as aparty.
On a-consideration of facts and circumstances of this case theaforesaid application to amend the plaint was clearly a belatedapplication made after three trial dates and thus provisions ofSection 93(2) would become operative and applicable. Undoubtedlythe plaintiffs-respondents are guilty of laches in prosecuting thisaction and the said laches cannot be condoned or excused by anymeans.
It is to be seen that there are two limbs in Section 93(2) thatneeds consideration.
The party seeking the amendment should satisfy Court forthe reason to be recorded by the Court that a grave andirremediable injustice will be caused if such amendment isnot permitted.
The party seeking to amend the pleadings should not beguilty of laches.
CA
Nimalraj Vs.
Tharmarajah and Others (Andrew Somawansa, J.)
319
These two ingredients are separate and distinct requirementsand a party seeking to amend the pleadings after the day firstfixed for trial should establish the existence of both theseingredients. Thus in the instant action the plaintiffs-respondentsare clearly guilty of laches in prosecuting this action and theplaintiffs-respondents have not up to date given any explanationfor the belatedness of this application and there is nothing toindicate that they^occurred beyond the control of the plaintiffs-respondents.
For the foregoing reasons, I would hold that the order of thelearned Additional District Judge is erroneous and shouldnecessarily be set aside. The plaintiffs-respondents who apparentlyare guilty of laches should suffer the consequences of these lachesand negligence in prosecuting the instant action and there is nobasis to condone such blatant and apparent laches and permit theextremely belated amended plaint.
In the case of Arudiappan vs. Indian Overseas Bank(2)
“The amendments contemplated by Section 93(2) arethose that are necessitated, due to unforeseencircumstances. Laches does not mean deliberate delay,it means delay which cannot be reasonably explained.
The plaint was filed in July 1988, the amendment wassought in September 1994. No explanation wasforthcoming from the respondent for the delay. Such adelay in seeking amendment of pleadings of the 5th dayof trial cannot be countenanced”.
In the case of Paramalingam vs. Sirisena and Another
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(2005) 3 Sri L. R.
Per Wigneswaran, J (P/CA)
“Indeed in this case injustice may be caused to theplaintiff respondent by the non-allowing of the newamended plaint in that a plea of res judicata might beraised in a subsequent action since the added defendanthad been named in this case though relief not claimed -but to allow amendments which are necessitated by thecarelessness and negligence of the plaintiff-respondenthimself or his lawyers would be to perpetrate andperpetuate such careless and negligent behaviour bylitigants and their lawyers despite the amendment broughtto section 93.
Laches means negligence of unreasonable delay inasserting or enforcing a right. There are two equitableprinciples which come into play when a statute refers toa party being guilty of laches. The first doctrine is delaydefeats equities. The second is that equity aids thevigilant and not the indolent.
P was known to claim title to the subject matter, whenthis case was first filed-not against P but against another-original defendant, despite an amendment no reliefs wereclaimed against P. Thereafter there had been undue delayin applying for amendment which was done only afterissues were framed, and on the second date of trial'”
Ceylon Insurance Co. Ltd., vs. Nanayakkara (4)
“The plaintiff-respondent instituted action against thedefendant-petitioner claiming a certain sum due on acontract of insurance. The defendant disclaimed liability.
CA
Nimalraj Vs.
Tharmarajah and Others (Andrew Somawansa, J.)
321
Trial commenced on 28.07.1995 after recording issues,it was postponed for 16.10.1995. On this date certainobjections were taken and when the trial resumed again'on 9.1.97 a trial de novo was ordered on 13.05.97. On7.5.97 the plaintiff sought to amend his pleadings, whichwas allowed by Court.
Weerasuriya, J held that,
Section 93(2) prohibits Court from allowing an applicationfor amendment, unless it is satisfied that grave andirremediable injustice will be caused if the amendment isnot permitted and the party applying has not been guilty oflaches.
The Court required to record reasons for concluding that bothconditions referred to have been satisfied.
The application to amend by pleading mistake orinadvertence can in no sense be regarded as necessitated'by unforeseen circumstances. The plaintiffs’ conduct pointto one conclusion, viz that they have acted without duediligence, this error could have been discovered withreasonable diligence; the need for the amendment did notarise unexpectedly.
The plaintiffs had failed to adduce reasons for the delay ofover 3 years for making an application to amend the plainton the basis of a purported mistake by the defendant. 4
4.Section 80 of the Civil Procedure Code provides for fixingthe date of trial, and such date constitutes the day firstfixed for trial. The discretion vested in the Judge either to
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continue with t he trial or to commence proceedings afreshdoes not affect the nature of the order made under section80 of the Civil Procedure Code relating to the fixing of thefirst trial date. The order made fixing the date of trial interms of section 80 becomes the day first fixed for trialwithin the meaning of section 93(2) of the Civil ProcedureCode.”
For the foregoing reasons, I would answer the questions of lawformulated for determination in the following manner:
“Q. When a defendant is added in terms of Section 18of the Civil Procedure Code what is the provision of theCivil Procedure Code which is applicable to theamendment of the plaint? Depending on the facts andcircumstances of each case provisions of Section 21 onlyor provisions of Section 21 read with Section 93 of theCivil Procedure Code would apply.”
In the instant action certainly in view of the aforesaid facts andcircumstances provisions of Section 93(2) would also apply. In thecircumstances in considering the aforesaid mandatory provisionsof law and the authorities cited above the impugned order of thelearned Additional District Judge is per se erroneous in law.
For the foregoing reasons, I would allow the appeal and set asidethe order of the learned additional District Judge canvassed in theseproceedings and direct the Additional District Judge to proceed totrial on the original plaint filed by the plaintiffs-respondents. The3rd defendant-petitioner will be entitled to costs of theseproceedings fixed at Rs. 10,000/-
WIMALACHANDRA, J. -1 agree.
Appeal allowed.