v.SIRISENA AND ANOTHER
COURT OF APPEALWIGNESWARAN J. (P/CA)
D.C. TRINCOMALEE 734/97SEPTEMBER 27, 2000NOVEMBER 14, 2000
Civil Procedure Code – S.93(l) (2) S.207, Act. 79 ojl 988 -S.18 46- Justertii – Amendment of Pleadings – Addition of a party – Laches.
The Plaintiff Respondent filed plaint on 23.9.97, against the DefendantRespondent praying for a declaration of title to the land and ejectment.Averments In the plaint Indicated that, the Defendant had denied the righttitle and interest of the Plaintiff and claimed that he was occupying thepremises with leave and licence of one ‘P’.
On 25.5.98 four days before the answer due date, an application wasmade under S. 18 to add R This was allowed on 29.5.1998. AmendedPlaint was filed on 16.6.98 with no changes except to include the name ofthe added Defendant Petitioner, as an added Defendant – E No relief wasclaimed against E P filed answer, exparte trial against the original Defendantand inter partes trial against P was fixed for 24.2.99 and thereafter on14.5.99 issues were framed and thereafter an application was made toamend the Plaint again. New Plaint was filed on 28.5.99. In this amendedPlaint a declaration of title and ejectment were sought against the addedDefendant – E The District Court allowed the amendment.
(i) Per Wigneswaran J (P/CA)
“Indeed in this case injustice may be caused to the PlaintiffRespondent by the non-allowing of the new amended Plaint in that aplea of Res Judicata might be raised in a subsequent action since theadded Defendant had been named in this case though relief not claimed- but to allow amendments which are necessitated by the carelessnessand negligence of the Plaintiff Respondent himself or his lawyerswould be to perpetrate and perpetuate such careless and negligentbehaviour by litigants and their lawyers despite the amendmentbrought to S.93.”
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Laches means negligence or unreasonable delay in asserting orenforcing a right. There are two equitable principles which comeinto play when a statute refers to a party being guilty of laches. Thefirst doctrine is delay defeats equities. The second is that equityaids the vigilant and not the indolent.
P was known to claim title to the subject matter, when this case wasfirst filed – not against P but against another – original Defendant,despite an amendment no reliefs were claimed against R Thereafterthere had been undue delay in applying for amendment which wasdone only after issues were framed, and on the second date of trial.
Leave to Appeal from the Order of the District Court of Trincomalee.
Cases referred to :
Mackinnon Mackenzie & Co vs. Grindlays Bank Ltd., 1986 2 SLR272.
Gunasekera and another vs. Abdul Latiff- 1995 2 SLR 225, 232.
S. Mahenthiran for added Defendant Petitioner.
K.S. Balakrishnan for Plaintiff Respondent.
Cur. adv. vult.
February 15, 2001WIGNESWARAN, J. (P/CA)
This application relates to an order made by the DistrictJudge of Trincomalee on 14.05.1999 allowing amendment tothe amended plaint, after tried had started. The learned Counselfor the added Defendant Petitioner has objected to suchamendment in terms of the provisions of the amended Section93(1) and (2) of the Civil Procedure Code.
The Plaintiff-Respondent filed plaint dated 23.09.1997against the Defendant-Respondent praying for declaration oftitle to the land and premises described in Schedule “C” thereto,ejectment of the Defendant-Respondent and others holdingunder her, damages and costs. Paragraphs 13 and 14 of theplaint read as follows:-
Paramalingam v. Sirisena and Another
u13. The Defendant by her reply dated 8th December,1996 denied the right and title of the Plaintiff tothe said hut premises occupied by her and claimedto occupy with leave and license of certainParamalingam who had no right or title or authorityto give leave and licence to the Defendant.
14. A cause of action has therefore accrued to thePlaintiff to sue the Defendant for a declaration oftitle to the land described in Schedule “C” heretoand to eject the Defendant from the hut situated inthe North-Eastern portion of the said land and fordamages.”
Thus the Plaintiff-Respondent knew that the Defendant-Respondent was seeking to set up jus tertii as her defence whenhe filed his original plaint. Yet he was content in filing this actionfor declaration of title against the Defendant-Respondent only,seeking the ejectment of the Defendant and others holding underher. No attempt was made to add Paramalingam to this case atthat stage.
After summons was served, the Defendant-Respondentappeared in Court and obtained a date for Proxy and Answerfor 29.05.1998. On 25.05.1998, four days before the Answerdue date, an application was made under Section 18 of theCivil Procedure Code to amend the plaint including the saidParamalingam as an added Defendant. This application wasallowed on 29.05.1998 presumably without notice to theDefendant-Respondent and without adequately considering thecontents of the affidavit dated 25.05.1998 filed by the Plaintiff-Respondent. Amended plaint dated 16.06.1998 was thereafterfiled with no visible changes except to include the name of theAdded Defendant-Petitioner (before this Court) as an AddedDefendant. No reliefs were claimed against the Added Defendant.Summons was thereafter issued and the Added Defendant madeappearance and filed Answer on 11.12.1998. Since the originalDefendant was absent ex-parte trial against her and inter partes
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trial against the Added Defendant were fixed for 24.02.1999and thereafter for 14.05.1999. On 14.05.1999 issues wereframed and thereafter an application was made to amend theplaint again. Application to amend the amended plaint wasallowed and in fact the new amended plaint was filed on
The only difference in the new amended plaint seems to bethe inclusion of the Added Defendant in paragraph 14 abovesaid(in addition to the Defendant) as a party against whomdeclaration of title and ejectment were sought thereby includingthe Added Defendant in prayers (b) and (c) to the new amendedplaint.
In fact an error or mistake made by the Attorney-at-Law forthe Plaintiff in not including the Added Defendant’s name inparagraph 14 and prayers (b) and (c) of the amended plaintdated 16.06.1998 was sought to be corrected by the sameAttorney-at-Law for the Plaintiff by applying to have a furtheramended plaint filed. Despite the Answer of the Added Defendantthat no relief had been sought in the amended plaint dated
against the Added Defendant, the Counsel for thePlaintiff had consented to start the trial on 14.05.1999 byframing issues.
There is no doubt that the Attorneys-at-Law for the Plaintiffhad acted most irrationally and irresponsibly in this case. Infact there is per se lack of vigilance perceivable in the manner inwhich they had acted. If only the Attorney-at-Law for the Plaintiffhad read the amended plaint dated 16.06.1998 before filing itwith the mere addition of the Added Defendant’s name in thecaption (but without making the necessary corrections in thebody of the amended plaint), she would have realised theshortcoming in the amended plaint filed. She did not do so.
The Counsel for the Plaintiff at least could have read theamended plaint before the first trial date (24.02.1999) or at
Paramallngam v. Sirisena and Another
least before the trial started on 14.05.1999. He too had notdone so.
The Added Defendant had quite rightly stated in his Answerthat no relief had been claimed against him in the first AmendedPlaint. At least the Answer of the Added Defendant should havebeen read by the Counsel for the Plaintiff before coming readyfor trial on 14.05.1999. Even that he seems to have not done.
All this carelessness and lethargy on the part of the Lawyershad put the parties to this case into a mess. Unfortunately thesins of Lawyers vest on their clients who seek redress fromCourts.
The learned District Judge had merely come to hisconclusion that the new amended plaint must be allowed to befiled since no undue delay had ensued, overlooking the fact ofutter carelessness and lack of reasonable diligence in theconduct of the Lawyers appearing for the Plaintiff-Respondent.He had not even granted costs to be paid to the Added Defendantwho was not to be blamed for the crass irresponsibility on thepart of the Lawyers appearing for the Plaintiff-Respondent. Hehad found that refusal to permit the amendment to the AmendedPlaint would result in grave and irremediable injustice.
We have been directed to an unreported case of this CourtCALA 55/2000 (D.C. Colombo Case No. 8975/RE) decided on08.09.2000 by the learned Counsel for the Added Defendant-Petitioner wherein it was held by the then President of the Courtof Appeal, Justice Edussuriya, that negligence and lack ofvigilance on the part of the Lawyers for a party, would not becovered by the provisions of Section 93(2) of the Civil ProcedureCode.
Indeed in this case injustice may be caused to the Plaintiff-Respondent by the non-allowing of the new Amended Plaint inthat a plea of Res Judicata might be raised in a subsequentaction since the Added Defendant had been named in this case
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though reliefs not claimed. (Vide Explanation to Sec. 207 of theCivil Procedure Code). But to allow amendments (even with thepayment of stiff costs) which are necessitated by the carelessnessand negligence of the Plaintiff-Respondent himself or hisLawyers, would be to perpetrate and perpetuate such carelessand negligent behaviour by litigants and their Lawyers despitethe amendment brought to Sec. 93 of the Civil Procedure Code.
It is most unfortunate that the Plaintiff-Respondent has tosuffer in this case due to the lack of vigilance on the part of hisLawyers. But when interpreting the present Section 93(2) ofthe Civil Procedure Code we must be conscious of the reasonswhich necessitated amendments to the old Section 93.
The old Section 93 read as follows:-
"93. At any hearing of the action, or any time inthe presence of, or after reasonable notice to, allthe parties to the action before final judgment,the court shall have full power of amending in itsdiscretion, and upon such terms as to costs andpostponement of day for filing answer orreplication or for hearing of cause, or otherwise,as it may think fit, all pleadings and processes inthe action, by way of addition, or of alteration, orof omission. And the amendments or additionsshall be clearly written on the face of the pleadingor process affected by the order; or if this cannotconveniently be done, a fair drqft of the documentas altered shall be appended to the documentintended to b$ amended, and every suchamendment or alteration shall be initialled by theJudge.”
Chief Justice Sharvananda had stated around 14.05.1986in interpreting the abovesaid old Section 93 in MackinnonMackenzie & Co. Vs. Grindlay’s Bank Ltd.ll) as follows at 279.
"Provisions for the amendment of pleadings areintended for promoting the ends of justice and
Paramalingam v. Slrisena and Another
not for defeating them. The object of rules ofprocedure is to decide the rights of the partiesand not to punish them for their mistakes orshortcomings. A party cannot be refusedjust reliefmerely because of some mistake, negligence orinadvertence. However negligent or careless mayhave been the first omission, and however latethe proposed amendment, the amendment maybe allowed if it can be made without injustice tothe other side.”
Thereafter came the Amending Act No. 79 of 1988 whereSection 93 was amended to read as follows
93.(1) The court may, in exceptional
circumstances and for reasons to be recorded, atany hearing of the action, or at any time in thepresence of, or after reasonable notice to all theparties to the actions, before final judgment,amend all pleadings and processes in the actionby way of addition, or of alteration or of omission.
. Every order for amendment made under thissection shall be upon such terms as to costs andpostponement of the date fixed for the filing ofanswer, or replication, or for the hearing of thecase or otherwise, as the court may think fit.
The amendments or additions made inpursuance of an order under this section shall beclearly written on the pleadings or processesaffected by the order; or if it cannot beconveniently so done, a fair draft of the documentas altered shall be appended to the documentintended to be amended, and every suchamendment or alteration shall be initialled by thejudge. ”
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Thus the earlier section which gave Court considerablediscretion in deciding on amendment of pleadings was changed.The phrase “the Court may in exceptional circumstances andfor reasons to be recorded” replaced the earlier phrase “the Courtshall have full power of amending in its discretion.”
Then came Amending Act No. 9 of 1991 which changed theearlier amended Section 93 to read as follows:-
“93. (1) Upon application made to it before theday first fixed for trial of the action, in thepresence of, or after reasonable notice to all theparties to the action, the court shall have full powerof amending in its discretion, all pleadings in theaction, by way of addition, or alteration, or ofomission.
On or after the day first fixed for the trial ofthe action and before final judgment, noapplication for the amendment of any pleadingsshall be allowed unless the Court is satisfied, forreasons to be recorded by the Court, that graveand irremediable injustice will be caused if suchamendment is not permitted, and on no otherground, and that the party so applying has notbeen guilty of laches.
Any application for amendment of pleadingswhich may be allowed by the Court undersubsection (1) or (2) shall be upon such terms asto costs and postponement or otherwise as theCourt may think fit.
The additions or alterations or omissions shallbe clearly made on theface of the pleading affectedby the Order; or if this ctmnot conveniently bedone, a fair copy of the pleading as altered shallbe appended in the record of the action to the
Paramalingam v. Strisena and Another
pleading amended. Every such addition oralteration or omission shall be signed by theJudge."
Thus a distinction was between "before the day first fixedfor trial” and “on or after the day first fixed for the trial.” TheCourt’s discretion was unfettered with regard to amendmentsbefore the first date of trial subject to an application having tobe made to do it with notice to all other parties. But its powerson or after the first date of trial were severely curtailed. Thepresent Section 93 has come through many vicissitudes. It isunder subsections (1) and (2) of the present Section 93 thatthe learned Counsel for the Added Defendant-Petitioner objectedto the amendment.
Justice Ranaraja in Gunasekera and another Vs. AbdulLatijf2) at 232 stated as follows:-
“The amendments to pleadings on or after the firstdate of trial can now be allowed only in very limitedcircumstances. It prohibits court from allowing anapplication for amendment at this stage unless (1)it is satisfied that grave and irremediable injusticewill be caused if the amendment is not permitted,and (2) the party applying has not been guilty oflaches. On no other ground can court allow anapplication for an amendment of pleadings.Furthermore, court is obliged to record reasons forconcluding that the two conditions referred to havebeen satisfied.”
Laches means negligence or unreasonable delay in assertingor enforcing a right. There are two equitable principles whichcome into play when a statute refers to a parly being guilty oflaches. The first doctrine is delay defeats equities. The secondis that equity aids the vigilant and not the indolent. LordCamden said “Nothing can call forth this Court into activity butconscience, good faith and reasonable diligence; when these
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are wanting the Court is passive and does nothing.”
The learned District Judge in this instance has come to theconclusion that there had been no undue delay in applying foramendment since on the first date of trial the case had to be re-fixed for trial owing to the alms-giving relating to the deceasedson of the Plaintiff falling on that date. But the delay shouldhave been considered from an anterior date. As stated earlierthe Plain tiff knew of a third party’s interest in the subject matterof this case (Vide para 13 of Plaint dated 23.09.1997). ThePlaintiff had already amended the plaint and added such thirdparty to this case but had failed to ask for any relief againsthim. There were two dates of trial and it was only on the seconddate of trial, after issues had been framed, did the Plaintiff moveto amend the plaint to include reliefs against the AddedDefendant. Therefore there had been utter callousness and delayon the part of the Plaintiff and his Lawyers in seeking to applyfor amendment.
Not only that. The learned District Judge should havechecked whether the proposed amendment was covered by thegeneral bar set out in the proviso to Section 46 of the CivilProcedure Code which reads as follows
“Provided that no amendment shall be allowedwhich would have the effect of converting an actionof one character into an action of another andinconsistent character;”
Here was an action brought against a person who was inoccupation of the premises in suit, claimed by the Plaintiff himselfas a licensee under another person named Paramalingam andknown to the Plaintiff at the time of filing this action (vide para13 of the original plaint). The Plaintiff should have filed thisaction against such third party (the Added DefendantParamalingam) under whom the original Defendant claimedlicense. Instead, this action was filed against the originalDefendant describing him as a trespasser without seeking any
Paramalingam v. Sirisena and Another
relief against the said Sellappah Paramalingam. The cause ofaction against the original Defendant was thus his personalunlawful occupation.
But the affidavit dated 25.05.1998 seeking to add “S.Paramalingam” as a party to this case refers to another actionbearing D.C. Trincomalee Case No. 667/96 wherein the said“S. Paramalingam” was the Plaintiff and judgment had beenentered in the said S. Paramalingam’s favour with regard to thesame subject premises to this action against one P.A.Pakkiyathurai and P. Wijayarajan and the said “S.Paramalingam” had been handed over possession of the sameland and premises consequent to writ being issued in that case.In fact the Plaintiff in this case had been admittedly ejected fromthe subject matter of this action in that action. (Vide paragraphs3 and 5 of the affidavit of the Plaintiff-Respondent dated
If as he claims in paragraph 6 of the affidavit the ownershipof the subject matter of this action had to be decided, then thisaction should have been filed in the first instance againstSellappah Paramalingam and not against the original Defendantin this case. Having filed this action against a known agent ofthe principal Sellappah Paramalingam the Plaintiff sought byhis affidavit dated 25.05.1998 to convert the action against theagent into an action against the principal. The causes of actiontherefore seem to be different. The tone of the original plaint inthis case was that while the Plaintiff was the owner, the originalDefendant had crept into the land and premises without anymanner of title mentioning a third party’s name as his licenser.But the affidavit dated 25.05.1998 sought to convert this actioninto an action relating to title and ownership against the AddedDefendant when the Plaintiff knew right along that his title wasbeing disputed by Sellappah Paramalingam and that the originalDefendant was only an agent or licensee of the saidParamalingam.
Thus this dubious action seems to have more to it thanmeets the eye. In any event Sellappah Paramalingam was known
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to claim title to the subject matter of this action when this casewas first filed not against Paramalingam but against another(the original Defendant). Thereafter despite an amendment noreliefs were claimed against the added Defendant. Thereafterthere had been undue delay in applying for amendment andonly after issues were framed on the second date of trial did thePlaintiff move to amend the plaint. And the existing amendedSection 93 when examining whether grave and irremediableinjustice will be caused if amendment was not permitted cannotbe said to include cases where negligence and lack of vigilanceon the part of the Lawyers are involved. The provisions of Section93(2) of the Civil Procedure Code are intended to be usedgenerally when “amendments to pleadings are necessitated byunforeseen circumstances” [per Justice Ranaraja at 236(Supra)]. If any other interpretation is given, such as allowing amistake or error creeping in despite the circumstances beingforeseen, then the amendment made by Act No. 9 of 1991 wouldlose its purpose and importance.
This was a clear cut case where the Plaintiff right alongknew who his adversary was (viz. the Added Defendant) butdid not seek to file this action against him but against a knownlicensee of such person. Thereafter he did not show due diligencein prosecuting this case but was callous and indifferent evenafter obtaining a right to amend the original plaint. In any eventthe Plaintiff was precluded from amending his amended plaintsince the reasons which promted such amendments were notunforeseen.
The learned District Judge had erred in his decision to allowsuch an amendment.
We set aside the order dated 14.05.1999 permitting suchan amendment to the amended plaint dated 16.06.1998 andmake order to reject the new amended plaint dated 28.05.1999.The trial will now proceed with the amended plaint dated16.06.1998.
Pnramaltngam v. Slrisena and Another
The Plaintiff Respondent will pay the taxed costs of thisleave to appeal application to the Added Defendant-Petitioner.Registrar of this Court should forward the record of this case tothe District Court of Trincomalee forthwith.
TILAKAWARDANE, J. – I agree.
Amended plaint dated 27.05.1999 rejected.