019-SLLR-SLLR-2007-V-1-PERERA-v.-GEEKIYANA.pdf
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PERERA
v
GEEKIYANA
COURT OF APPEALEKANAYAKE, J.GOONERATNE, J.
CA 829/94(F)
D.C. COLOMBO 15554/LMARCH 14, 2007
Civil Procedure Code – Section 46, 48, 38, 93 – Caption read District Court otMt. Lavinia and the word Mt. Lavinia was struck oft – and the word Colomboinserted in handwriting – Application to initial alteration – refused – Dismissalof action – Validity – should the plaint be amended?
A preliminary objection was raised stating that the caption of the plaint readsas District Court of “Mt. Lavinia" and the word "Mt. Lavinia" had been struck offand the word "Colombo" has been inserted in handwriting.
The trial Judge inquired from Counsel whether he wishes to amend the plaint,the Counsel indicated that the plaint need not be amended but soughtpermission from Court to initial/endorse the caption showing the alteration.
This was refused by the trial Judge and the action was dismissed.
Held:
(1) There was no necessity to apply to Court to amend the plaint.Amendment of pleadings will become necessary only to ascertainthe points in issue in case of doubt, function of the pleadings is toclarity the issues so that the real issues between the parties maybe tried.
It is settled law that cause of justice cannot be thwarted byprocedural technicalities. A party cannot be refused just reliefmainly because of some mistake, negligence or inadvertence;
Court should always be mindful of the fact that merits of the caseshould be considered unless the objection raised by Counselindicates a material defect in the pleadings which needsamendments in compliance with section 93;
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Attitude of Courts should be to avail frivolous technicalities“Supreme Court is a Court of Law which should not be tramelled bytechnical objections and that it is not an academy of law* – ChiefJustice Abrahams in Velupillai v Chairman, U.C. JaffnaS7)
APPEAL from the Judgment of the District Court of Colombo.
Cases referred to:
J.E. Senanayake v V.H.L. Anthonisz and another- 69 NLR 225 at 227.
Fernando v Soysa – 2 NLR 40.
Mohideen v Gnanaprakasam – 14 NLR 33.
Soysa v Soysa – 17 NLR 118.
Awa Ummah v Casinader – 24 NLR 199.
W.M. Mendis v Excise Commissioner- 1999 (1) SLR 351.
Velupillai v Chairman U.C., Jaffna – 39 NLR 464.
N.R.M. Daluwatte, P.C., with Rohan Gunapala for the appellant.
Romesh de Silva P.C., for respondent.
Cur.adv.vult.
May 21, 2007
ANIL GOONERATNE, J.
This appeal arises from the order of dismissal of the plaintiff's 01action on 31.5.1994 by the learned Additional District Judge,Colombo where a preliminary objection was raised at the trial bythe defendant-respondent to the plaint filed of record stating thatthe caption of the plaint reads as District Court of Mt. Lavinia andthe word Mt. Lavinia had been struck-off and the word Colomboinserted in hand writing. The original Court Judge after hearing boththe learned President's Counsel for the defendant on the aboveobjection and the Counsel for the plaintiff, had inquired from theCounsel for the plaintiff as to whether he wishes to amend the plaint 10but Counsel for the plaintiff indicated to Court that the plaint neednot be amended but sought permission from Court to allow theregistered Attorney of the plaintiff to initial or endorse the captionshowing the alteration with the word Colombo which washandwritten on the plaint.
Court had not permitted the registered Attorney to initial orendorse the plaint as aforesaid but in the order, Additional District
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Judge has made reference to the fact that in these circumstanceswhat should be done was for the plaintiff to have applied to Courtto amend the plaint but when the answer to court by Counsel for 20plaintiff was in the negative, Original Court dismissed the plaint withcosts as the plaint filed of record is not a valid plaint.
It was contended on behalf of the defendant-respondent that
Failure to initial the caption is indicative of the fact that thecaption would have been altered at any time on any date.
Service copy of the plaint too has the same alterationwhich is also unsigned / not initialed.
No application has been made to rectify the error and assuch plaint has to be dismissed.
The plaintiff-appellant contends that the objection taken by the 30defendant is highly technical/frivolous and that it is a curable defectwhich would not cause any prejudice to the defendant. Theappellant also submitted to this Court that
any objection of this nature should be taken at the earliestopportunity by motion prior to the trial date.
Plaint had been tendered to the registry on 29.9.91 andaccepted on 30.9.91. (date stamp placed)
Plaint accepted after the caption was altered correctly.
Service copy has been subscribed by the registered
Attorney for plaintiff.40
On a perusal of the record I find that although an objection tothe plaint was raised on 31.5.1994, there had been several datesprior to 31.5.94, where this case had been called in the DistrictCourt of Colombo, and prior to 31.5.94 the case had been fixed fortrial on 6.1.94. On that date the journal entry indicates that thecase had been re-fixed for trial/settlement on 31.5.1994. As suchthis objection should have been taken on a motion prior to filing theanswer of the defendant.
The learned Additional District Judge's order of 31.5.94dismissing the action needs to be examined. The trial Court Judge sointer alia refer to the following matters in her order.
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mistakes do occur and its not unusual.
request by plaintiff to endorse the pleadings or initial thealterations cannot be permitted after same has been filedof record.
the place of alteration in the pleadings should be initialedby the registered Attorney. It is his responsibility.
in this instance Court is unable to state as to when the
alteration of the caption was done. It might have beenafter acceptance of the plaint.60
although the District Court seal has been affixed by theRegistrar on the plaint, it would not mean that Court hasaccepted same.
if the name of Court is incorrectly inserted plaint should beinitially rejected. However if a correction is done withoutthe endorsement/initial of the Attorney-at-law it is aninvalid plaint.
as observed above, when Court inquired from theplaintiff s Counsel as to whether plaint needs to beamended the answer to same was in the negative. At this 70point when Court inquired from the plaintiff he shouldhave moved to amend the plaint/caption.
since the plaint is not valid Court dismissed the plaint withcosts.
The trial Court Judge's findings as stated above may in a waybe of some relevance to the day to day functioning of the originalCourt but the ultimate decisions to dismiss the plaint is anerroneous decision of the original Court since the error suggestedby Court and the Defence Counsel is of a trivial nature and acurable defect. (If it is the view of the original Court that there is an soalteration done in the caption to the plaint).
A plaint could be returned for amendment or rejectedaccording to the provisions referred to in section 46 of the CivilProcedure Code.
Section 48 of the Civil Procedure Code requires the order forreturn or rejection to specify the fault or defect and the date of filing
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plaint and by whom it was filed and such order to be filed of recordand signed by the Judge. Section 48 reads thus:
Every order returning or rejecting a plaint shall specify thedate when the plaint was presented and so retuned or 90rejected, the name of the person by whom it was presentedand whether such person was plaintiff or registered Attorney,and the fault or defect constituting the ground of return orrejection; and every such order shall be in writing signed bythe Judge, and filed of record.
In this instance the original Court had not made an order incompliance with section 48 of the Code.
Plaintiff's position was that an amendment was not necessaryor that there is nothing to be done to amend the plaint other than toplace the initial of the Attorney in the place where the word 100'Colombo' (hand written) appears, since the plaint has beenpresented and accepted by Court by that time the objection wasraised by the defence. If that position of the plaintiff is accepted theonly lapse if at all on his part would be his failure to endorse orinitial the place where the word 'Colombo' appears on the plaint. Tothis extent the learned District Judge is correct as any slightalteration needs to be initialed by the registered Attorney-at-Law.However, I am inclined to accept the position of the plaintiff'sCounsel that there was no necessity to apply to Court to amend theplaint, other than to place one's initials with permission of Court at nothe point where hand written word appears on the plaint.Amendment of pleadings will become necessary only as ascertainthe points in issue in case of doubt and it has been considered byour courts that the function of the pleadings is to clarify theissues so that the real issues between the parties maybe tried. J. E. Senanayake v V. H. L. Anthonisz and anotherat 227.
In fact the earlier view was that a Judge cannot reject or returna plaint after having accepted it and ordered summons. Fernandov Soy sat2) and Mohideen v GnanaprakasamP) However the cases 12creported in Soysa v SoysaW and Avva Umma v Casinaderi5>changed the position to enable Court to take steps to return orreject the plaint if the material defect has been pointed out by the
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defendant at a subsequent stage. This principle is being followedeven in recent times.
The original Court Judge should have given her mind to thequestion whether the objection raised by the defence is valid (priorto dismissal of the plaint) for the following reasons:
Is there any prejudice or injustice caused to the defence?
Is the objection of a trivial nature, which can be cured? 130
Is an amendment of the caption really necessary?
Should the merits of the case be considered and permitthe parties to proceed to trial rather than dismissing thecase without considering the merits, merely becauseplaintiff took the view that there is no need to amend theplaint.
Is it not apparent on a perusal of the plaint that with orwithout an amendment to the caption scope of the actionor its character would not change.
It is settled law that cause of justice cannot be thwarted by uoProcedural technicalities. In W.M. Mendis & Co. v ExciseCommissioner,<6) The object of rules of procedure is to decide therights of the parties and not to punish them for their mistakes orshortcomings. A party cannot be refused just relief merely becauseof some mistake, negligence or inadvertence.
A Judge hearing civil cases in the original court should alwaysperuse the pleadings and decide as to whether there is a realnecessity to amend the pleadings according to acceptedprocedure. Court should always be mindful of the fact that merits ofthe case should be considered unless the objection raised by 150Counsel indicates a material defect in the pleadings which needsamendment in compliance with section 93 of the Code. Attitude ofcourts should be to avoid frivolous technicalities.
"Supreme Court – is a court of law which should not betrammelled by technical objections and that it is not an academy oflaw" per Chief Justice Abrahams (Velupillai v Chairman U.C.Jaffna) P)
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It is unfortunate that this case had been dismissed some yearsago on a highly technical issue, without considering the merits ofthe case. In the circumstances I set-aside the order of the learned i6oAdditional District Judge of Colombo dated 31.5.1994, with costs,fixed at Rs. 10,000/- and I direct that the case proceed to trial onthe pleadings filed of record.
EKANAYAKE, J. – I agree.
Appeal allowed.