NA GALIN GAM A~J.—Per era v. Agidahamy.
1946Present: Nagalingam AJf..
PERERA, Petitioner, and AGIDAHAMY et al., Respondents:.
528—Application for revision in C. R. Colombo, 94,410.
Revision—Jurisdiction of Supreme Court to act in revision where no appeallies—Civil Procedure Code, s. 753.
Court of Requests—Amendment of pleadings at any time before trial—Specialprovision in Civil Procedure Code, s.. 816.
Section 753 of the Civil Procedure Code does not put a limitation on.the powers of the Supreme Court to deal with an application in revisionin a matter which cannot be brought up by way of appeal.
Section 816 of the Civil Procedure Code specially provides that theCourt of Requests should allow pleadings to be amended at any timebefore trial if substantial justice can be promoted' thereby.
PPLICATION to revise an order of the Commissioner of Requests,.Colombo.
Colvin R. de Silva (with him K. C. de Silva), for the plaintiff, petitioner.
T. Samarawickreme, for the 1st and 3rd defendants, respondents.
£>. R. Wijayatilake, for the 2nd defendant, respondent..
December 3, 1946. Nagalingam A.J.—
This is an application by the plaintiff to revise an order of the learned:Commissioner refusing an amendment to the plaint.
A preliminary objection was taken by Mr. Samarawickreme to the appli-cation on the ground that under section 753 of the Civil Procedure Codeit was only where a matter could have been brought up by way of appealthat it could be dealt with in revision, and that as there was no appealfrom an interlocutory order in the Court of Requests, application by wayof revision did not lie. I do not think that section 753 is capable of sucha narrow interpretation as that contended for. The words of the sectionrelied upon by learned Counsel for the 1st and 3rd defendants deal withthe nature of the order that may be made in revision and not with the-
88NAGAUNGAM AJf—Pcrera t>. Agidahamy.
question of the circumstances in which an application for revision may bemade; the words are “ . . . – and may upon revision ….pass any judgment or make any order which it might have made had thecase been brought before it in due course of appeal instead of by way ofrevision”. The words italicised by me if taken note of can only leadto the conclusion that they do not prescribe the scope or put a limitationon the powers of this Court to deal with an application in revision. Thelimitation that is imposed by this clause is as regards the order the Courtmay pass, namely, if it could not have passed a particular order on anappeal then such an order could not be made even if the matter be broughtbefore it by way of revision. The case of Sabapathippillai v. Arumuga-samy1 has been cited as supporting the proposition contended for butI have little doubt, as expressly stated in the judgment itself, theobservations of Soertsz J. must be confined to the facts of the casebefore him. That was a case where even if an appeal had been preferredthis Court could have given no relief and it was held that on revisionthe Court could not act otherwise. I therefore overrule the preliminaryobjection.
In regard to the merits of the application itself, it would appear that theplaintiff filed his plaint on March 9, 1944, claiming relief against all thedefendants upon a cause of action which is set out in paragraph 3 of theplaint as the wrongful and unlawful prevention by the defendants of theflow of water into the plaintiff’s land by blocking the water-course. Theplaintiff states that the word “ into ” is incorrect and that the words“ out of ” should be substituted therefor as only then his cause of actionwould be set out correctly.
The defendants filed two separate answers and in both answers they haveexpressly stated that the plaintiff was making an attempt to find waysand means of draining out the water from Wilkoladeniya which gets filledwith water during the rainy season, and clearly establish that they appre-ciated quite properly the cause of action upon which the plaintiff came intoCourt. Admittedly, even at the inspection when the learned Commis-sioner visited the land the only topic of discussion was not whether theplaintiff’s field became dried and uncultivable because the flow of thewater into the field had been stopped but whether as a result of the waterbeing prevented from flowing out of the plaintiff’s field, the field becamewater-logged and thereby became uncultivable. The plaintiff sought toamend his plaint by motion dated January 22, 1945, by substitutingthe words “ out of ” for the word “ into ” in paragraph (3) of his plaint.The Proctor for the 1st and 3rd defendants received notice “subject to anyobjection at the trial ”. The Proctor for the 2nd defendant had receivednotice “subject to any objection”. Where a party receives notice“ subject to objection at the trial ” it means that he has no objection tothe amendment being allowed subject to any objection that may be takenat the trial as a result of the amendment being allowed. The motion was•never dealt with although a date was given for its consideration. Theplaintiff states that he was under the impression that the motion hadbeen allowed. Various steps were taken in the case from time to timewithout the question of amendment being dealt with and the case was
1 (1944) 27 Ceylon Law Weekly S.
CANNON J.—Benedict Perera v. Siriicardene.
set down for trial on October 16, 1946. On October 4, 1946, the plaintifffiled a motion asking that the motion of amendment dated January 22,1945, be allowed. After hearing arguments the learned Commissionerrefused the application.
It is quite obvious to my mind that the parties well knew from thecommencement, however imperfect the language the plaintiff used in hisplaint may have been, that the wrong in respect of which the plaintiffcame into Court claiming damages was the blocking of the outlet fromhis field thereby preventing the water from flowing out of his field.In view of this circumstance alone the amendment should have beenallowed. More so, in the Court of Requests where in regard to amend-ments, there is special provision in section 816' of the Code which laysdown that the Court should allow pleadings to be amended at any timebefore trial if substantial justice can be promoted thereby.
I would set aside the order of the learned Commissioner and allowthe application to amend the plaint. The plaintiff will be entitled to-the costs of appeal and of the inquiry in the lower Court.
PERERA, Petitioner, and AGIDAHAMY et al., Respondents