R. J. DARYANANI, Appellant, and EASTERN SILK EMPORIUM LTD., Respondent

098-NLR-NLR-V-64-R.-J.-DARYANANI-Appellant-and-EASTERN-SILK-EMPORIUM-LTD.-Respondent.pdf


Daryanani v. Eastern Silk Emporium, Ltd.
529
Present: Sansoni, J., and L. B. de Silva, J.
R. J. DARYANANI, Appellant, and EASTERN SILKEMPORIUM LTD., Respondent
S. C. 41/61 (Inty.)—-D. C. Colombo, 23,565/8Pleadings—Application to amend plaint—Scope of power of Court to grant it—Discretion of.Court—Rules of practice regarding the exercise of the discretion—Addition of a new or alternative cause of action—Permissibility—Amendmentbefore hearing of action—Permissibility—Civil Procedure Code, as. 46, 93.
In the exercise of the discretion vested in Court by section 93 of the CivilProcedure Code regarding amendment of a plaint the Court should take intoconsideration well-established rules of practice. The rules should not. betreated as though they were statutory rules or provisions of positive law of arigid and inflexible nature. The two main rules which have emerged fromthe decided cases are:—
the amefndment should be allowed if it is necessary for the purpose of
raising the real question between the parties ; and
an amendment which works an injustice to the other side should not be
allowed.
There is no rule that only slips or accidental errors are to bo corrected.
The Court has power to permit a plaintiff to plead an alternative cause oraction by way of amending his plaint, if no injustice can possibly result to thedefendant and so long as the amendment does not have the effect of convertingan action of one character into an action of another and inconsistent character.(Lebbe v. Sandanam (1963) 64 N. L. It. 461, discussed and distinguished.)
An amendment of a plaint may be allowed under section 93 of the CivilProcedure Code before the hearing of the action. (Observations to the con-trary in Lebbe v. Sandanam (1963) 64 N. L. It. 461, disapproved.)
The plaintiff sued the defendant by summary procedure to recover a certainsum of money due on a cheque. The defendant obtained leave to appear anddefend unconditionally. Thereafter, the Court allowed an application modeby the plaintiff to amend his plaint by pleading on alternative cause of actionfor goods sold and delivered for the same amount.
Held, that the Court was correct in allowing the alternative cause of actionto be pleadod. “ An amendment seeking to odd a now or alternative cause ofaction, which is so germane and so connected with the original cause of action,i should be permitted. The real subject matter being the indebtedness, noprejudice can arise from on amendment which raises such an issue. ”
Per Sansoni, —“ With regard to the addition of a new cause ofaction, which is the amendment that was applied for in Lebbe v. Sandanam
I am unable, for the reasons I have already given, to subscribe to an
absolute and inflexible rule that in no circumstances may a new pause ofaction be added.”
Per U. B. de Silva, J.—“ The statement of the learned Chief Justice (inLebbe v. Sandanam) laying down what may appear to ba rules for the exereisoof tho discrotionary power of the Courts undor section 93 (of the Civil ProcedureCodo) nro not rules of law binding on our Courts.”
23— LX1V
2n 0783—J.S83 (5/03)
530SANSONI, J.—Daryanani v. Eastern Silk Emporium, Ltd.
Appeal from an order of the District Court, Colombo.
Nimcd Senanayake, for the Defendant-Appellant.
0. Runganathan, for the Plaintiff-Respondent.
Cur, adv. vult.
;; April 4, 1963, Sansoni, J.—
The plaintiff brought this action by summary procedure to recover asum of Rs. 7,449/96 upon a eheque drawn in his favour by the defendant.The defendant applied for and obtained leave to appear and defendunconditionally. The plaintiff thereafter moved to amend his plaint,
• filing an amended plaint at the same time. This procedure was wrong,because the plaintiff should have first set out the amendments he wishedto make and the defendant should have been given an opportunityto object to them. The correct procedure was later adopted and amotion to amend the plaint was filed. On the date given for, objections, the defendant and his proctor were absent. The amended' plaint was then accepted by the Court, and the defendant has appealedfrom this order. .
The amendment which was allowed was the pleading of an alternativecause of action for goods sold and delivered. The .identical amountclaimed in the original plaint was claimed on the new cause of action.
The question we have to decide is whether the District Judge was'correct in allowing the alternative cause of action to be pleaded.
We have had the benefit of a full argument, and I wish first to touchupon some general aspects of the subject before I come to theparticular question. The application for amendment is governed bysection 93 of the Civil Procedure Code. It reads :—
• “ At any hearing of the action, or at any tune in the presence of,or after reasonable notice to, all the parties to the action before final- judgment, the court shall have full power of amending in its discretion,and upon such terms as to costs and postponement of day for filinganswer or replication, or for hearing of cause, or otherwise, as it maythink fit, all pleadings and processes in the action, by va,y of addition,or of alteration, or of omission. And the amendments or additionsshall be clearly written on the face of the pleading or process affectedby the order ; or if this cannot conveniently be done, a fair draft of the• document as altered shall be appended to the document intended to beamended, and every such amendment or alteration shall be initialledby the Judge. ”
. The section deals respectively with the time at which an amendment-.-may be made, the power of the Court to make it, and the terms, upon-
SANSONI, J.—Uaryanani v. Eastern SilkEmporium. Ltd./>31
which it may be made. The principal point that arises in this appeal isthe power of the Court, and I quote again the words of this section :
“ the Court shall have full power of amending in its discretion ”.
It seems to me that when a statute confers a power on a Court to dosomething in its discretion, a higher Court cannot say more than that theJudge who has been given the power should or should not have exercisedit in the particular case. And it can only say that after it has consideredthe facts and circumstances of that case. “ A discretion necessarilyinvolves a latitude of individual choice according to the particularcircumstances, and differs from a case where the decision follows exdebito justitiae once the facts are ascertained” — per Lord Wright inEvans v. Bartlam1. The circumstances are “ a factor to be taken intoaccount in exercise of the discretion as to whether amendment shouldbe ordered, and does not affect the power of the Court to order it, ifthat is required in the interests of justice : ” see L. J. Leach & Co. v.Messrs. Jardine Skinner <& Co.2
There has arisen a body of case law dealing with the matters whichshould be taken into consideration by the Judge when he comes to exercisethis power. They are well-established rules of practice, and should notbe treated as though they were statutory rules or provisions of positivelaw of a rigid and inflexible nature. The two main rules which haveemerged from the decided cases are :—
the amendment should be allowed if it is necessary for the purpose
of raising the real question between the parties ; and
an amendment which works an injustice to the other side should
not be allowed.
These rules appear in the Privy Council judgment in Australian Navi-gation Co. v. Smith 3.
The first rule seems to be based on the principle that a multiplicity ofactions should be avoided. Jenkins L.J. in G. L. Baker Ltd. v. MedwayBuilding and Supplies, Ltd.4 has termed it “ a guiding principle of cardinalimportance on this question It was pointed out in that case that theobject of litigation is to adjudicate on the real matters at issue betweenthe parties, and this object must be achieved even though it involvesovercoming the well-known reluctance of a Court of Appeal to disturbthe trial judge’s exercise of a discretion. The second rule seems to followfrom the principle that one of the first and highest duties of all Courtsis to take care that the act of the Court does no injury to any party :and the Court should not generally exercise a power which will lead tosuijh a result.
The first rule has been given statutory force both in England and inIndia. 0.28 r. 1 of the Rules of the Supreme Court, and O.G r. 17 of theIndian Civil Procedure Code, which are almost in identical terms say that
1 (1937) A.C.al 489.3 (18S9) 14 A. C. 318.
* A. I. R. (1957) S. O. 357.« (1958) 1 W. L. R. 1216.
532
SANSONI, J.—Daryanani v. Eastern SUL Emporium, Lid.
“ all such amendments shall be made as may be necessary for the purposeof determining the real questions in controversy between the parties. ”Our section 93 contains no such words, but such an omission, while itmay enlarge the power and widen the discretion of the Court in thisrespect, cannot surely restrict the amplitude of the power. It was pointedout in Seneviratne v. Candappa 1 that 0.28 r. 1 corresponds to oursection 93, and the case of Tildesley v. Harper 2 was cited there. Thesiger
J.' in that case said that the object of the rules of the Court is to obtaina correct issue between the parties, and the Privy Council recently, inBank of Ceylon, Jaffna v. CheUiahpillai 3, said that the Civil ProcedureCode gives in section 93 ample power to amend pleadings, and tho casemust be tried upon the issues on which the right decision of the caseappears to the Court to depend, and the framing of such issues is notrestricted by the pleadings. Again in Cropper v. Smith 4 Bowen L.J.referring to. 0.28/r. 1. said : “ It seems to me that as soon as it appearsthat the wray in which a party has framed his case will not lead to a decisionof the real matter in controversy, it is as much a matter of right on hispart to have it corrected, if it can be done without injustice, as anythingelse in the case is a matter of right. ”
Since the necessity of error of mistake as a condition precedent toamendment loomed large in the arguments before us, I shall quote whatBowen L.J. said in that case on that matter : “ The object of Courtsis to decide the rights of the parties, and not to punish them for mistakesthey make in the conduct of their cases by deciding otherwise thanin accordance with their rights. … I know of no land of erroror mistake, which, if not fraudulent or intended to overreach, the Courtought not to correct, if.it can be done without injustice to the other party.Courts do not exist for the sake of discipline, but for the sake of decidingmatters in controversy, and I do not regard such amendment as a matterof favour or of grace. ” In another place in his judgment he said :“ It does not seem to me material to consider whether the mistake ofjudgment was accidental or not, if not intended to overreach. Thereis no rule that only slips or accidental errors are to be corrected. …
I have found in my experience that there is one panacea which healsevery sore in litigation, and that is costs. I have very seldom, if ever,been unfortunate enough to come across an instance, where a person hasmade a mistake in his pleadings which has put the other side to such adisadvantage as that it cannot be cured by the application of that healingmedicine. ”
%
The avoidance of injustice to the other party, which is the second ruleof practice I have referred to, requires that the Court should refuse, savein exceptional cases, to allow an amendment which would cause aninjustice. Lord Esher, M.R. in Weldon v. Neal 5, referred to the settledrule of practice that amendments are not admissible when they prejudice
1 (1917) 26 N. L. R. 60.a (1962) 64 N. L. R. p. 25.
* (1878) 10 Ch. D. 393.4 (1884) 26 Gh. D. 700.
6 (ISS7) 19 Q. B. D. 394.
SANSONI, J.—Daryanani v. Eastern Silk Emporium, Ltd.533
the rights of the opposite party as existing at the date of such amend-ments. To allow such an amendment would be to enable the plaintiff totake away an existing right from the defendant, a proceeding which hethought would be improper and unjust. He added : “ Under very peculiarcircumstances the Court might perhaps have power to allow such anamendment, but certainly as a general rule it will not do so. ** ThePrivy Council judgment in Gharan Das v. Amir Khan 1, decided thatthe power to make an amendment should not as a rule be exercisedwhere its effect id to take away from a defendant a legal right whichlias accrued to him by lapse of time. Here again it was pointed out that“ there are cases where such considerations are outweighed by the specialcircumstances of the case ”. There are many decisions of this Courtwhich have applied this rule in other situations also.
In the case before us, the District Judge has exercised his discretionand allowed the alternative cause of action to be pleaded. . Mr. Senana-yake’s first objection was that, since it is a new cause of action, theamendment could not, as a matter of law, have been allowed. Thisraises the question whether a new cause of action can never be added byamendment. I think I can best answer that question by referring to thecase of Sarafalli MahomedaUi v. Mahasuhhbhai Jechandbliai2, whereit was held that in an action on a promissory note, an amendmentclaiming in the alternative on the consideration may be allowed,even though th,e cause of action on the promissory note is distinctfrom the cause of action on the loan which gave rise in the promis-sory note. Beaumont, C.J. said : “ Whether in any particular case theamendment is asked for at too late a stage, or in circumstances whichmake it unfair to grant the leave, is another matter, but as a mere pro-position of law I see no reason why an amendment of this nature should,not be allowed at the trial or even in appeal. ” Rangnekar, J. whoagreed said : “ There is clear authority for the proposition that the plain-tiff may rely upon several different rights or claims alternatively althoughthey may be inconsistent : see Philipps v. Philipps3. • … If then,
a plaintiff can set up inconsistent claims in the alternative in the plaintto start with, it is difficult to see why, on principle, he cannot be allowedto amend the plaint by pleading an inconsistent claim in the alternativeat a later stage. Whether such an amendment should be allowed ornot depends upon the circumstances of the case and various otherconsiderations/’
The learned judges distinguished an earlier Privy Council judgmentin Ma Shwe Mya v. Mating Mo Hnaung 4, where the action wasbrought on a contract made in 1912 : the plaintiff failed to establishthat contract, and then sought by amendment to base the causeof action on another contract altogether made in 1903. The PrivyCouncil said that the plaintiff could not be allowed to substitutethe latter cause of action for the former, or to change in this way the
1 A. I. R. (102J) P. G. 50.* (1878) 4 Q. B. D. 127.
* A. J. R. (1033) Bombay 470.* A. I. R. (1022) P. C. 219.
2*K 07SS (5/C3)
534 ,SAJSTSONT, J.—Daryanani <>. Eastern Silk Emporium. Ltd.
subject matter of the action, for the real question in contest between theparties on the pleadings was the existence and the character of the agree-ment alleged to have been made in 1912. One can easily see that suchan amendment should not be allowed, because it would offend againstthe first rule of practice by seeking to change, rather than clarify, thereal question between the parties. An analogous rule of practice isthat an amendment should not be allowed if it has the effect of convertingan action of one character into an action of another and inconsistentcharacter. See also Section 46 of our Code. But an amendment seekingto add a cause of action which is so germane to and so connected withthe original cause of action, should be permitted. The real subjectmatter being the indebtedness, no prejudice can arise from anamendment which raises such an issue.
Another objection which Mr. Senanayake urged was that the amend-ment should not have been allowed because it was sought to be madebefore the hearing of the action afid he relied, in support of both objectionsI have dealt with, on the case of Lebbe v. Sandanam 1. In thatcase Basnayake C.J. said that the Court may not exercise thepower under section 93 before the hearing, and he interpreted thewords “ at any time ” to mean “ at any time after the hearing" and notat any time before the hearing ”. With great respect, I am unable toagree with that view of what the words “.at any time ” mean. Theclear words of the section “ postponement of day for filing answer orreplication ” are sufficient to show that amendments can be appliedfor oven before the pleadings are closed. 1 have also always understoodthe rule to be that an amendment should be applied for as early as possibleand as soon as it becomes apparent that it would be necessary, Onlyin tins way can unnecessary delays be avoided. Applications for amend-ment at the trial have always been discouraged, because the other partyhas been put to the expense and trouble of getting ready for trial. TheCourt would require to be satisfied as to the bona fides of an applicationmade at a trial, where the party should have applied earlier to amendlus pleading. I am not referring here to amendments that becomenecessary owing to some development that arises ex improviso. Anamendment which is sought unduly late may be suspected also of beingmala fide, and a Court would refuse an amendment so tainted. InTildesley v. Harper 2, Bramwell L.J. said : “ My practice has alwaysbeen to give leave to amend unless I have been satisfied that. the party applying was acting mala fide, or that, by his blunderhe had done some injury to his opponent which could not becompensated for by costs or otherwise ”. Costs may in most cases be asufficient compensation if the application is made as late as the trial stage,but the Judge may, in a particular case, doubt the efficacy of thatmedicine. Several authorities on this point are to be found in the notesto 0.28 r. l, in The Annual Practice, and I do not wish to lengthen thisjudgment by making particular reference to them. On matters such
» {1063) 64 N. L. Jl. 461..
a {1878)10 Oh. D. 393.
SANSONT, J.—Daryanani v. Eastern Silk Emporium, Ltd.
535
as this I think considerable assistance can be found in English andIndian authorities, and judges of this Court have consistently lookedin those directions for enlightenment. In the case of Lebbe v. Sandanam{supra), the amendment in question was applied for at the trial, and Itherefore think that the observations of the learned Chief Justice onthis point were not necessary for the decision of that appeal.
How liberally the Courts have construed the power to amend pleadingsalso appears from cases where the plaintiff has failed to plead analternative cause of action which could have been pleaded. In SriniwasBam Kumar v. Mahabir Prasad1 decided by the Supreme Courtof India, the plaintiff alleging that the 2nd defendant had agreed tosell him a house which the 2nd defendant later sold to the 1stdefendant sued to enforce specific performance of the contract. Theplaintiff’s case was that he had also paid Rs. 30,000 as part of thepurchase price. The 2nd defendant denied the agreement and pleadedthat the sum of Rs. 30,000 had been received by him as a loan. Thetrial Judge accepted the 2nd defendant’s case and rejected that of theplaintiff. He dismissed the claim for specific performance but entered amoney decree in plaintiff’s favour for the sum of Rs. 30,000 as the loanhad been admitted. The High Court affirmed the findings of the trialJudge, but held that no money decree should have been granted as nocase of a loan was made by the plaintiff in his plaint and no relief wasclaimed on that basis. Accordingly, the plaintiff’s action was dismissedin its entirety.
The Supreme Cotut accepted the concurrent findings of fact, but heldthat the High Court had taken “an undoubtedly rigid and technical view ”in reversing the trial Judge’s grant of a money decree. Mukherjee J.eaid : “ It is true that it was no part of the plaintiff’s case as madein the plaint that the sum of Rs. 30,000 was advanced by way of loan tothe defendants second party. But it was certainly open to the plaintiffto make an alternative oase to that effect and make a prayer in thealternative for a decree for money even if the allegations of the moneybeing paid in pursuance of a contract pf sale could not be established byevidence. The fact that such a prayer would have been inconsistentwith the other prayer is not really material. A plaintiff may rely upondifferent rights alternatively and there is nothing in the Civil ProcedureCode to prevent a party from making two or more inconsistent sets ofallegations and claiming relief thereunder in the alternative. ” Afterreferring to the rule that the Court cannot grant relief to a plaintiff on aease not put forward in his plaint, the learned Judge said : “ But when thealternative case, which the plaintiff could have made, was not only admitt-ed by the defendant in his written statement but was expressly putforward as an answer to the claim which the plaintiff made in thesuit, there would be nothing improper in giving the plaintiff a decreeupon the case which the defendant himself makes. … In such■circumstances where no injustice can possibly result to the defendant itmay not be proper to drive the plaintiff to a separate suit. ’’
1 A. /. n. (1951) S. C. 177.
fi36SANSONJ, J.—Daryanani v. Eastern Silk Emporium, Ltd.
A Privy Council decision A. I. R. {1943) P. C. 29 was cited in support.It was a case where an action was brought on a mortgage which thedefendant pleaded was void. That plea was upheld, but the Privy Councilheld that it was open to the plaintiff in such circumstances to repudiatethe transaction and claim relief in the form of restitution. Althoughiio such alternative claim was made in the plaint, the Privy Councilallowed it to be advanced and gave a decree on the ground that the respon-'dent could not be prejudiced by such a claim at all and the plaintiff should,not be referred to a separate action.’•
These cases show, to my mind, that there is no rule that a new oralternative cause of action can never be added. A plaintiff who comesinto Court alleging that he paid money as part consideration for a purchasei8 not precluded from also pleading that the money was given by wayof loan ; and a plaintiff who sues to enforce a mortgage security in hisfavour is not precluded from also pleading that he should be grantedrestitution altogether outside the mortgage transaction. Such amend-ments are permissible in order that “ the real question between theparties ” may be brought out.
With regard to the addition of a new cause of action, which is theamendment that was applied for iiv Lebbe v. Sandanam, the ultimate•finding was that the plaintiff's case as asserted in his evidence did notjustify the amendment aslced for, because the plaintiff had repeatedlyrepudiated the position which was sought to be covered by the amendment.In other words, the application to amend would appear to have beenmade mala fide, and its final refusal would appear to have proceeded onthat ground. With very great respect, I am unable, for the reasonsI have already given, to subscribe to an absolute and inflexible rule thatin no circumstances may a new cause of action be added. AsBeaumont, C.J. said in the case I have already referred to : “If the realsubject matter of the dispute between the parties can only be put inissue by an amendment even though it be by the addition of a cause ofaction, then I see no reason why the amendment should not be allowed.”In Haniffa v. Coder1 it was held that an omission to make certainpersons original plaintiffs was no reason for not adding them later, evenif that involved the addition of new causes of action, because the amend-ment did not enlarge the claim originally made or cause any prejudiceto the defendants.
Many years ago an appeal came up before De Sampayo, J. in the caseof Sockalingam Chetty v. Kathitha Bebe 2. That was an action on apromissory note and an application was made to add an alternativecause of action for money lent. The application was disallowed inthe lower Court and in appeal De Sampayo J. said : “An amendmentof this kind which is not intended to cure any defect in the originalplaint but to add a further cause or causes of action is purely withinthe discretion of the Court. I think that while, if the Commissioner
1 (1941) 42 N. L. R. 403.
2 (1916) 2 G. W. R. 55.
L. Ij. DE SILVA, J.—Daryanani v. Eastern Silk Emporium, Ltd.
537
thought fit, the amendment might have been allowed, subject to terms,I do not think, now that the case as brought has entirely failed for thereason already stated, that this Court should interfere on appeal,” Itshould be noted that the learned Judge did not base his decision on theground that the Court had no power to allow the amendment, but on theimportance he attached to the manner in which the trial Judge hadexercised his discretion.
In England also it has been held that in an action on a promissorynote the Court has power*to allow an amendment of a plaint by theaddition of an alternative cause of action for goods sold and delivered,even where the action was filed by way of what corresponds to summaryprocedure under our Code—see Thomas v. Alderton Ltd. l, which wasfollowed in Noorbhoy v. Mohideen Pitche2.
Finally, on the question whether we ought to interfere with the orderunder appeal, there is the valuable dictum of Jenkins L. J. in G. L. BakerLtd. v. Medway Building <& Supplies Ltd.3“ There is no doubt whatever
•.that the granting or refusal of an application (for leave to amend)is eminently a matter for the discretion of the Judge with which this•Court should not in ordinary circumstances interfere unless satisfiedthat the Judge has applied a wrong principle or can be said to havereached a conclusion which would work a manifest injustice betweenthe parties ”, Neither alternative has been shown to appear in the•order under appeal, and I would dismiss the appeal with costs.
L. B. de Silva, J.—
The plaintiff-respondent sued the defendant-appellant on a chequeor bill of exchange by way of Summary Procedure. The defendant•obtained leave to defend the action. In view of certain legal defencesraised, the plaintiff sought to amend his plaint by pleading an alternatecause of action for goods sold and delivered for the same amount.
The learned District Judge allowed the motion to amend the plaint.The defendant appealed from that Order. Two main questions havearisen for decision in tlus appeal.
Can the plaintiff move to amend his pleadings before the hearing
of the case 1
Can the plaintiff plead an alternate cause of action by way of
amendment to his plaint ?
Counsel for the Appellant relied on the decision of the Divisional Courtin Lebbe v. Sandanam 4 in support of both objections. The judgmentof the bench was delivered by his Lordship the Chief Justice Basnayake.In that case, the question whether pleadings could be amended beforethe hearing of the case did not arise for decision, as the application toamend the plaint was made after the trial had commenced.
1 (1028) 1 K. B. D. 638.3 (1958) 1 IF. L. R. 1216.
* (1921) 31 N. L. R. 3.* (1963) 61 N. L. R. 161.
538
L. B. DE SILVA, J.—Daryanani v. Eastern Silk Emporium, Ltd.
His Lordship stated, “ The Court may not exercise that power (ofamendment) before the hearing or after final judgment. The words'* at any time 5 in the context mean at any time after the hearing andnot at any time before the hearing. That power is conferred on the Courtfor the reason that it is only at the hearing or at any time thereafterthat the Court would be in a position to decide whether having regardto. the evidence there should be an amendment of the pleadings.”
I agree with the reasons given in my brother’s judgment which I hadthe privilege to read, that there is no justification for placing a restrictedmeaning on the words “ at any time ” in section 93 of the Civil ProcedureCode, as stated by my Lord the Chief Justice in the case cited. Thesection reads, “ At any hearing of the action, or any time in the presenceof or after reasonable notice to, all the parties to the action before finaljudgment, the Court shall have full power of amending in its discretion,and upon such terms as to costs and postponement of day for filinganswer or replication, or for hearing of cause, or otherwise, as it maythink fit, all pleadings and processes in the action, by way of addition,or of alteration, or of omission.”
The reference in the section to the postponement of the day for filinganswer or replication, appear to clearly indicate that the amendment maybe allowed on or before the day fixed for filing of the answer or replication.Apart from this reason, convenience and the interests of justice demandthat an amendment of the pleadings should be made as early as possible.Immediately after a plaint is accepted, a plaintiff may realise that hisplaint needs some amendment. Surely it is not reasonable to thinkthat tills section deliberately forbids Iiiin from applying to Court toamend his plaint till after the defendant has filed his answer and thecase comes up for trial. Such a procedure will entail unnecessary delay,expense to parties and inconvenience to witnesses, as the trial willalmost invariably be postponed if the application to amend the pleadingswere allowed at that stage.
The words used in the section “ at any time …. before finaljudgment ” are of the widest import. There must be very strong andcogent reasons to give these words such a restricted meaning. If itbecomes necessarj’- in any case to hear some evidence before allowingthe amendment, I see no reason why such evidence may not be led beforethe hearing of the case, for this particular purpose. It has been thenormal practice of our Courts to allow such amendments before thehearing. It lias been held in Hipgrave v. Case1 that the Court will notreadily allow at the trial an amendment, the necessity for which wasabundantly apparent months ago and then not asked for.
With all respect to the learned Chief Justice, I beg to disagree withIris dicta that the Court may not exercise its power under section 93of the Civil Procedure Code to allow the amendment of pleadings before-the hearing of a case.
i 2S Ch. D. 361.
L. B. DE SILVA, J.—Daryanani v. Eastern Silk Emporium, Ltdi
539
On the second question, his Lordship the Chief Justice has stated hiLebbe v. Sandanam1, after considering the meaning of the word “ amend ”in legal procedure, “ The concept that an amendment is the correctionof an error runs through all the definitions cited above and the definitionsin the recognised English dictionaries, such as the Oxford EnglishDictionary, Standard Dictionary, and Webster’s New InternationalDictionary. The Court’s power is therefore limited to the correctionof errors in pleadings. If there is no error, then the Court cannot actunder section 93. The words * by way of addition, or of alteration, orof omission ’ suggest that errors of both commission and omission arecontemplated. As the power is limited to the correction of errors, itfollows then that the Court has no power to make alterations—
which set up a new case,
which have the effect of converting an action of one character
into an action of another character,
which have the effect of taking the action out of the provisions
governing the limitation of actions in the Prescription Ordinanceor any other enactment or law,
which have the effect of the addition of a new cause of action,
which have the effect of prejudicing the rights of the other side
existing at the date of the proposed amendment, and
(/) which have the effect of changing the substance or essence of theaction.”
Does this statement lay down a rigid rule of law or is it a statementfor the practical guidance of the Courts in the exercise of the discretiongiven to them under section 93 of the Civil Procedure Code ? This sectiongives our Courts the most ample power to allow the amendment ofpleadings and this power is only limited by its discretion. There is nodoubt that the Court must exercise this power judicially, and it is notvested with an absolute or arbitrary power.
Unless the Legislature has passed laws limiting the exercise of thispower either directly or by Rules or Orders having the force of law,the Courts have no power to lay down rigid and inflexible rules for theexercise of a judicial discretion. The normally accepted rules orprinciples for the exercise of such a discretion, enunciated by the Courtsof the highest authority, are therefore only meant for the practicalguidance of other Courts. They do not have the force of law. In thatsense, I hold that the statement of the learned Chief Justice layingdown what may appear to be rules for the exercise of the discretionarypower of the Courts under section 93, are not rules of law binding on ourCourts. We are, therefore, free in this ease to consider if there are goodreasons to set aside the exercise of the discretion by the learned trialjudge who allowed the amendment.
1 {1963) 64 N. L. R. 461.
540• L. 13. DI2 SILVA, J.—Duryanani v. Eastern Silk Emporium, Ltd.
In this connection, I wish to refer to the judgment of the learned-Chief Justice in Wijewardene v. Lenoral. His Lordship stated in that case,“ It (section 93).must be read subject to the limitation that an amendmentwhich has the effect of converting an action of one character into anaction of another or inconsistent cliaracter cannot be made thereunder.Apart from that limitation the discretion vested in the trial Judge bysection 93 is unrestricted and should not be fettered by judicial inter-pretation. Unrestricted though it be, it must be exercised accordingto the rules of reason and justice, not according to private opinion ;according to law, and not humour. Its exercise must be uninfluencedby irrelevant considerations, must not be arbitrary, vague, and fanciful,but legal and regular. And it must be exercised within the limit to whichan honest man competent to discharge his office ought to confine himself.{Sharp v. Wakefield)".”
In Evans v. Bartlamz, the House of Lords considered the exercise of a.judicial discretion to set aside a judgment by default and the powersof a Court of Appeal to over-ride that discretion. Under the R. S. C.Orders, the discretion was in terms unconditional. Lord Atkin statedat p. 650, “ The Courts, however, have laid down for themselves rulesto guide them in the normal exercise of their discretion.”. Havingconsidered certain rules guiding such discretion he said, “If''therewere a rigid rule that no one could have a default judgment set asidewho knew at the time and intended that there should be a judgmentsigned, the two rules would be deprived of mest of their efficacy. Theprinciple obviously is that, unless and until the Court has pronounceda judgment upon the merits or by consent, it is to have the power to
revoke the expression of its coercive power where that has been obtainedonly by a failure to follow any of the rules of procedure.
But, in any case, in my opinion, the Court does not, and I doubt whetherit can, lay down rigid rules which deprive it of jurisdiction. Even the firstrule as to affidavit of merits could, in no doubt rare but appropriatecases, be departed from. The supposed second rule does not, in myopinion, exist. ”
At page 651, Lord Russel of Killowen stated, “ It was argued byCounsel for the respondent that, before the Court or a Judge couldexercise the power conferred by this rule, the applicant was bound toprove—
(а)that he had some serious defence to the action, and
(б)that he.had some satisfactory explanation for his failure to enter
his appearance to the writ.
It was said that, until these two matters had been proved; the door wasclosed to the judicial discretion, in other words, that the proof of thesetwo matters was a condition precedent to the existence or (what amounts
(196S) GO N. L. R. at 463.2 (1801) A. C. 173 at 170.
3 (1037) (2) A. E. R. 646.
1
Xi. B. DE SILVA, J.—Daryanani v. Eastern Silk Emporium, Lbl.
541
to the same thing) to the exercise of the judicial discretion. For myselfI can find no justification for this view in any of the authorities which werecitek in the argument; nor, if such authority existed, could it he easilyjustified in face of the wording of the rule. H would be adding a limitationwhich the rule does not impose.”
Lord Wright at p. 655 stated, R.S.C. Order 27, r. 15, gives a dis-cretion untrammelled in terms. Ho quoted with approval the wordsof Bowen L.J. in Gardner v. JayJ, ‘ when a tribunal is invested byAct of Parliament or by rules with a discretion, without any indicationin the Act or rules of the grounds upon which the discretion is to beexer'oised, it is a mistake to lay down any rules with a view of indicatingthe particular grooves in which the discretion should run, for if theAct or the rules did not fetter the discretion of the Judge why should theOourt do so ? * ”.
He further said, “ Similarly, it has been held by the Court of Appeal,in Hope v. Great Western Railway Company 2 that the discretion to grantor refuse a jur£ in King's Bench cases is in truth, as it is in terms, un-fettered. It is, however, often convenient in practice to lay down, notrules of law, but some general indications, to help the Court in exercisingthe discretion, though in matters of discretion no one case can be an authorityfor another. As Kay L.J. said in Jenkins v. Bushby 3 at p. 495, ‘ theCourt cannot be bound by a previous decision, to exercise its discretion ina particular way, because that would, be in effect putting an end to the■discretion '
Sufficient has been said to show that the dictum in Lebbe v. Sandanam1 * * 4is not a pronouncement on the Law which is binding on this Court.I may mention that' in that case, His Lordship the Chief Justice con-.sidered the merits of the application and gave his decision.
There are numerous cases5 in which the plaintiff has been allowed toplead an alternate cause of action by way of amendment to his plaint.
I hold that there is no bar to the plaintiff pleading an alternate cause•of action by way of an amendment to his plaint, so long as he does notthereby convert his action to another of an inconsistent character.
In this Appeal no other reasons have been urged that the learnedDistrict Judge has improperly exercised his discretion in allowing theamendment to the plaint. I entirely agree with the reasons set outin his judgment by my brother Sansoni J. I dismiss the appeal withcosts.
1 (1885) 29 Ch. D. at 58 (137 L. T.€56).
(1937) 1 A. E. It. 625.
(1891) 1 Ch. 484.
4(1963)
Appeal dismissed.
s See (a) 31 N. L. R. 3.
(b) (1928) 1 K. B. 638.
'(c) A. 1. R. (1923) Bombay 476.
I. L. R. (1898) 25 Calcutta 372
N.L. R. 461.