v.BUDDADASA AND ANOTHER
COURT OF APPEAL.
WIJETUNGA, J. AND SENANAYAKE. J.,
C. A./L.A. 48/84/LG – D.C. MT. LAVINIA 2042/M..
NOVEMBER 20. 1989.
Delict – Negligence in running down case – Amendment of plaint giving particulars ofnegligence – Section 93 C.P.C.- Cause of action.
In a running down case where plaint had been filed on the ground of negligence it wassought to amend the plaint by giving particulars of the negligence and stating that thedriver was acting within the scope of his employment under the owner of the vehicle. Thefact of notice having been given to the Attorney-General was also pleaded. Objection wastaken on the ground that a new cause of action was being introduced and this woulddeprive the defendants of the defence of prescription.
The expression, cause of action has been defined in S. 5 of the Civil Procedure Code as thewrong for the prevention or redress of which an action may be brought and includes thedenial of a right, the refusal to fulfil an obligation, the neglect to perform a duty, and theinfliction of an affirmative injury. One does not have to look outside, the Civil ProcedureCode for the meaning of the words and expressions defined in the Interpretation Section ofthe C.P.C.
In the amendments the plaintiffs did not introduce an additional cause of action. Thetwo main rules which have emerged from the decided cases are
an amendment should be allowed if it is necessary for the purpose of raising thereal question between the parties.
an amendment which works an injustice to the other side should not be allowed.
The amendments do not deprive the petitioner of a plea of prescription. If no injusticewould result to the other side and provided the amendments do not have the effect ofconverting an action of one character into an action of another and inconsistent character,it is within the discretion of the trial judge to permit the amendments. The test is whether toeffectively adjudicate upon the dispute between the parties amendment of the pleadingsis necessary.
Cases referred to :
Cooke V. Gill, (1873) Law Rep. 8 C.P. 107, 116
Read V. Brown (1888) 22 Q.B.D. 128. 131
Daryanani V. Eastern Silk Emporium Ltd., 64 NLR 529
Mackinnon Mackenzie & Co., V. Grmdlays Bank Ltd..  2 Sri LR 272 (S.C.)
APPEAL (with leave) from judgment of the District Judge of Mount Lavinia.N.S.A. Gunatillake, P.C. with N. Mahmda for 2nd defendant-petitioner.R.L.N. de Zoysa for plaintiff-respondent.
Cur. adv. vult.
March 30. 1990WIJETUNGA, J.
The plaintiff instituted this action on 13.9.1980 against the 1st and 2nddefendants claiming damages in a sum of Rs. 100,000 arising out of anaccident which occurred on 17.9.1978, involving motor car bearingNo. 6 Sri 9453. The vehicle which belonged to the State was driven bythe 2nd defendant at the relevant time. By reason of the accident, injurywas caused to the plaintiff.
According to the plaint, the 1 st defendant has been made a party tothis action as he was the Postmaster-General at the time and was theregistered owner of the said motor car. It was further pleaded that the.2nd defendant had, at the time of the accident, driven the said vehicle asa servant of the 1st defendant. The defendants having filed theirrespective answers, the case was fixed for trial.
Thereafter, the Attorney-at-Law for the plaintiff sought to amend theplaint and submitted a draft amended plaint on 13.8.1982. The 2nddefendant objected to this amendment and the matter was fixed forinquiry.
The 2nd defendant-petitioner, in the petition filed by him in thisCourt, states that the proposed amendments sought to introduce forthe first time, as paragraph 3A, certain particulars regarding the allegednegligence of the 2nd defendant which particulars had not beenpleaded in the original plaint. Among the particulars pleaded for the firsttime in the draft amended plaint, inter alia, were averments that the saidvehicle had tyres which were worn out, that the shock-absorbers of thevehicle and the alignment were not in a proper condition and that thebrakes of the said vehicle were not functioning.
The defendant-petitioner submits that the particulars of negligence ina case of this nature are an integral part of the plaintiff's cause of actionand should be pleaded in the first instance and any attempt to introducethem at a later stage would be to plead the plaintiff's cause of action fullyfor the first time at that stage or to introduce an additional cause ofaction to that in the original plaint.
The 2nd defendant-petitioner further states in his petition that theplaintiff also sought to introduce in two new paragraphs Nos. 5A and 5Bthe averments, inter alia, that 2nd defendant was at the material timeacting on an alleged authority or permission given by the 1 st defendantand/or with his approval and/or in the course of his duties. Accordingly,the two defendants were sought to be made liable jointly and severally.
He further pleads in his petition that the 3rd amendment sought to beintroduced for the first time was that notice under Section 461 of theCivil Procedure Code had been given to the two defendants.
The 2nd defendant-petitioner states that he filed his objections to thesaid proposed amendments and pleaded inter alia that the plaintiff wasseeking to introduce for the first time fresh particulars and/or causes ofaction after the.plaintiff's claim was prescribed, thereby causing graveprejudice to the 2nd defendant-petitioner and depriving him of a plea ofprescription which he was entitled to take. This was being done fouryears after the alleged cause of action is said to have accrued to theplaintiff.
The 2nd defendant-petitioner also pleads in his said objections thatthese amendments altered the nature and scope of the action and/orthe manner in which the defendants were sought to be made liable.
After inquiry and having heard the submissions of the parties, thelearned District Judge delivered his order on 21.3.1984 allowing thesaid amendments and stating inter alia in the course of his order that thesaid amendments did not alter the character of the action and that theyonly sought to introduce legal language in order to put right theaverments in the plaint. He further held that under Section 93 of the CivilProcedure Code, the Court had the power to allow any kind ofamendment provided the nature and scope of the action would not bechanged or a plea of prescription woufd not be prejudiced. He held thatby the proposed amendments, what the plaintiff was seeking to do wasto present his plaint properly to Court. He accordingly allowed theamendments and accepted the amended plaint.
It is from this order that the 2nd defendant-petitioner has obtainedleave to appeal to this Court.
Learned counsel for the appellant submitted that as the plaintiff hadnot pleaded the acts of negligence in the original plaint, there was nocause of action pleaded in that plaint. As it was only in para. 3A of theamended plaint that the relevant acts of negligence were pleaded, hecontended that the said paragraph 3A of the amended plaint brought in,for the first time on 13.8.1982, a cause of action.
He relied on a definition of 'cause of action" in Cooke v. Gill, (1) whichstates that it has been held from the earliest time to mean "every factwhich is material to be proved to entitle the plaintiff to succeed, everyfact which the defendant would have a right to traverse". This definitionhas been quoted with approval in Read v. Brown, (2) (1888), Vol. XXIIQueen's Bench Division 128 at 131 where the definition is stated inthese terms : "Every fact which would be necessary for the plaintiff toprove, if traversed, in order to support his right to the judgment of theCourt. It does not comprise every piece of evidence which is necessaryto prove each fact, but every fact which is necessary to be proved".
It was his submission that the facts necessary to be proved had notbeen pleaded in the original plaint, in that, no reference had been madeto the particulars of negligence. In the absence of such facts in theoriginal plaint, he argued, that there was no cause of action.
In considering these submissions, it is necessary to remember thatour Civil Procedure Code, in Section 5, defines "cause of action" as "thewrong for the prevention or redress of which an action may be brought,and includes the denial of a right, the refusal to fulfil an obligation, theneglect to perform a duty, and the infliction of an affirmative injury."
The Section further states that "the following words and expressionsin this Ordinance shall have the meanings hereby assigned to them,unless there is something in the subject or context repugnant thereto".
Thus, in my view, one does not have to look outside the Code for themeaning of words and expressions such as 'cause of action' which aredefined in the Interpretation Section.
Applying this definition to the original plaint in the instant case, it isseen that the plaintiff has pleaded in para. 3 thereof that the 2nddefendant drove the said vehicle without exercising due diligence, ornegligently, or carelessly, thereby resulting in this accident whichcaused injury to the plaintiff, in respect of which the claim for damages ismade. In terms of this definition, that is the wrong for the redress ofwhich this action has been brought.
No doubt, the particulars of negligence had to be pleaded. But, can itbe said that by furnishing those particulars in paragraph 3A of theamended plaint, the plaintiff's cause of action was being fully pleaded. for the first time at that stage or an additional cause of action wasthereby being introduced ? In my view, the cause of action had beenpleaded in the original plaint but what was sought to be done by thisamendment was to furnish the particulars of negligence which werenecessary to be pleaded in a case such as this. The amendments did notintroduce an additional cause of action.
In Daryanani v. Eastern Silk Emporium Ltd., (3) it has been held that inthe exercise of the discretion vested in Court by Section 93 of the CivilProcedure Code regarding amendment of a plaint, the two main ruleswhich have emerged from the decided cases are –
the amendment should be allowed if it is necessary for thepurpose of raising the real question between the parties ; and
an amendment which works an injustice to the other side shouldnot be allowed.
More recently, in Mackinnon Mackenzie & Co., v. Grindlays BankLtd., (4) (1986), 2 Sri LR 272, the Supreme Court has held that theamendment of pleadings is in the discretion of the Court and the test is'whether in order to effectively adjudicate upon the dispute between theparties, amendment of the pleadings is necessary.
I am unable to agree with the submission that the said amendmentswould deprive the petitioner of a plea of prescription. This submissionwould be valid only if by reason of the amendments a fresh cause ofaction is introduced but to my mind, the amendments do not have thateffect. If no injustice would result to the other side and provided thatamendments do not have the effect of converting an action of onecharacter into an action of another and inconsistent character, it waswithin the discretion of the learned trial judge to have permitted thoseamendments. It cannot be said that the discretion vested in the Courthas not been properly exercised in this regard.
I am, therefore, of the view that the learned trial judge was right inallowing the amendments and would affirm his order accepting theamended plaint.
The appeal is accordingly dismissed with costs.
SENANAYAKE, J.- I agree.Appeal dismissed.
PILAPITIYA v. BUDDADASA AND ANOTHER