RAJASINGHAM v. SENEVIRATNE AND ANOTHER

010-SLLR-SLLR-2002-V-1-RAJASINGHAM-v.-SENEVIRATNE-AND-ANOTHER.pdf


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RAJASINGHAM
v.SENEVIRATNE AND ANOTHER
COURT OF APPEALWIGNESWARAN, J., ANDTILAKAWARDANE, J.
CA NO. 1056/96 (F)
DC COLOMBO NO. 4907/ZLMARCH 23, 2000 ANDJULY 4, 2000
Civil Procedure Code – Sections 93 and 150 – Appellant did not contest the plaintas reliefs prayed for did not affect her – Amendment of plaint – Relief soughtagainst appellant – No notice by court given to the appellant – Ex parte judgmentagainst appellant – Applicability of section 93 – Character of case changed -Permissibility – Illegality of proceedings.
The plaintiff-respondent filed action against the Commissioner of National Housing(CNH) and the 2nd defendant-appellant, for a declaration that the plaintiff-respondent was entitled to use lot 2, her access to her land. The 2nd defendant-appellant did not contest the plaint since the reliefs prayed for did not affect her.
The plaintiff-respondent filed amended plaint with permission of Court. Theamended plaint contained an additional prayer which sought an order and decreeon the defendant-appellant to demolish and remove structures constructedby her on certain lots. The case went ex parte against the 2nd defendant, onthe amended plaint.
The application to set aside the ex parte judgment was rejected.
On appeal -Held:
(1) The journal shows that a copy of the amended plaint had been sent byregistered post by the plaintiff. 'Under no circumstances should partiesarrogate to themselves the functions of Court unless the Court directs themto do so. Sending of notices statutorily expected from Court should notbe substituted by parties taking such facts upon themselves'.
Rajasingham v. Seneviratne and Another
83
CA
The amended plaint refers to an encroachment by the 2nd defendantthe character of the case seemed entirely changed. Whether the 2nddefendant was present in Court or not it was the duty of Court to haveex mero motu considered the effect of the amendment.
The amendment to the plaint took place without conforming to s. 93;under s. 93 it was the Court which should have given notice to the 2nddefendant. Notice under s. 93 is not to be presumed. It has to be real.
Per Wigneswaran, J.
"When the order fixing the case for ex parte trial itself was questionablethe nature of evidence placed by the 2nd defendant to set aside the ex partedecree becomes irrelevant.
It was also contended that –
parties and their legal representatives were expected to be present inCourt on a regular calling date; and
whether notice was given of amendment of plaint to the 2nddefendant or not is irrelevant in an application to set aside the ex parte
decree.
Held, further –
The 2nd defendant had already filed answer that she was not contestingthe plaintiff's original plaint since no relief was claimed against her. Shewas entitled to keep away on a regular calling date expecting the caseto take its normal course with the plaintiff, prosecuting the original plaint.
If notice of amendment of pleadings is not given in terms of the law tothe party affected, if the Court does not consider (whether the affectedparty is before Court or not) the feasibility of the amendment prayed forand act in terms of the law, all proceedings thereafter would becometainted with illegality, whatever the shortcomings in the defendant's conductmight be. A Court of law should not be an apathetic bystander underthese conditions.
APPEAL from judgment of the District Court of Colombo.
K. Kanag Iswaran, PC with Anil Tittawela for 2nd defendant-appellant.
Romesh de Silva, PC with Saumya Amarasekera for plaintiff-respondent
Cur. adv. vuit.
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October 18, 2001WIGNESWARAN, J.
This is an appeal against the order dated 25. 10. 1996 made by the 1Additional District Judge, Colombo, refusing to set aside an ex partejudgment dated 04. 12. 1990 entered against the 2nd defendant-appellant. There is also reference in the Petition of Appealdated 18. 12. 1996 to an appeal against an incidental order dated
01. 1991 permitting amendment of judgment and decreedated 04. 12. 1990.
The plaintiff-respondent filed this action on 22. 02. 1985 againstthe Commissioner of National Housing and the 2nd defendant-appellant, a neighbour of the plaintiff-respondent, for a declaration that 10the plaintiff-respondent was entitled to us lot 2 depicted inPlan No. 2058 dated 07. 03. 1977 made by H. Anil Peiris, LicensedSurveyor, as part and parcel of a road reservation which she claimedas her access to Inner Bagatalle Road and described in thefourth schedule to the plaint. Even though lots 3, 6, 7 and 11 (part)depicted in Plan No. PP Ko/1410 dated 27. 09. 1971 authenticatedby the Surveyor-General and lots 1 and 2 in Plan No. 2058abovesaid (in extent 16.50 perches) are mentioned in the fourthschedule to the plaint, what appeared as road reservationsover which right of way had been given to the plaintiff under Instrument 20of Disposition No. 1082 dated 01. 06. 1976 were only lots 7 and 11in PP Ko/1410 dated 27. 09. 1971 abovesaid. The plaintiff alsoprayed for a declaration that the Commissioner of National Housinghad no right to convey the dominium in lot 2 or any part of theroad reservations to the 2nd defendant absolutely.
The 2nd defendant-appellant by answer dated 04. 09. 1985 statedthat the substantive relief sought being a declaratory relief againstthe Commissioner of National Housing, the 1st defendant, she wouldabide by any order made by Court. The plaint dated 22. 02. 1985did not seek the demolition of any structure or ask for any relief which 30might have prejudiced the 2nd defendant-appellant in any way. Theabovesaid answer meant that the 2nd defendant-appellant was notinterested in contesting the plaint dated 22.02.1985 since the reliefsprayed for did not affect her.
CA
Rajasingham v. Seneviratne and Another
(Wigneswaran, J.)
85
When this case came up for trial on 30. 05. 1986 the Counselfor plaintiff informed Court that this case (No. 4907/ZL) wasconnected to case No. 4705/ZL. Thereby, trial in this case waspostponed for 24. 10. 1986.
It is to be noted that case No. 4705/ZL was mentioned inparagraph 20 of the plaint dated 22. 02. 1985 as one filed against 40Nissanka Dabare for a declaration of the plaintiff's right to the fulland unimpeded user of the roadway described in the fourth scheduleto the present plaint.
This case was not taken up for trial on 24. 10. 1986. Awaitingdecision in case No. 4705/ZL the trial in this case was taken out ofthe trial roll and postponed a number of times from 24. 10. 1986until around 23. 01. 1990 when a date was obtained for an amendedplaint to be filed. A copy of the judgment in case No. 4705/ZLseems to have been not filed nor its determination referred to,after awaiting so long for its decision. But, an application to amend sothe plaint in this case was made and readily granted. How theCourt allowed a date to file amended plaint without taking stepsunder section 93 of the Civil Procedure Code remains unclear as perthe relevant journal entry.
Section 93 as on 23. 01. 1990 before section 2 of Act No. 9 of1991 came into operation, but after the enactment of section 9 ofAct No. 79 of 1988 read as follows :
"93. (1) The Court may, in exceptional circumstances and forreasons to be recorded, at any hearing of the action, or at any timein the presence of, or after reasonable notice to all the parties to 60the action, before final judgment, amend all pleadings and processesin the action by way of addition, or of alteration or of omission.
Every order for amendment made under this section shall beupon such terms as to costs and postponement of the date fixed for
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the filing of answer, or replication, or for the hearing of the case orotherwise, as the Court may think fit.
The amendments or additions made in pursuance of an orderunder this section shall be clearly written on the pleadings or processesaffected by the order; or if it cannot be conveniently so done, a fairdraft of the document as altered shall be appended to the document ?ointended to be amended, and every such amendment or alterationshall be initialled by the judge."
The burden of giving notice under the above section was cast onthe Court. The reasons which constituted exceptional circumstancesleading to amendment of pleadings also was to be recorded. Of coursejournal entry 43 in this case speaks of a copy of the amended plaintbeing sent and the relevant registered article receipt being filed. But,this was not done in consequence of any order of Court. In any eventthe Court was not to expect parties to send notices on their own byregistered post when the burden was cast on the Court to give notice. 80
Many reasons contributed to reverting back to the provisions ofthe Civil Procedure Code with regard to service of summons andnotices in preference to the provisions of the Administration of JusticeLaw in this regard. In the case of service of summons and notices,service through Fiscal officers was preferred to sending them byregistered post since the latter mode of service, even by Court, wasfound to be unsatisfactory despite Return Cards being expected tobe signed by recipients.
In this instance the notice had been allegedly sent by registeredpost without any order from Court. Apparently, a copy of the motion 90containing the proposed amendments to the plaint had been sent byregistered post only on 05. 02. 1990 when the case was scheduledto be called on 08. 02. 1990. On 15. 02. 1990, there is a journalentry to the effect that copy of amended plaint had been sent byregistered post presumably by the plaintiff. Under no circumstances
CA
Rajasingham v. Seneviratne and Another
(Wigneswaran, J.)
87
should parties arrogate to themselves the functions of Court unlessthe Court directs them to do so. Sending of notices statutorily expectedfrom Court should not be substituted by parties taking such tasks uponthemselves. Before amendment was allowed, in this instance, theCourt should have taken sufficient care to see that notice of the desire 100on the part of the plaintiff to amend the plaint was given to the 2nddefendant, specially on account of the answer already filed by her.
The amended plaint filed contained an additional prayer whichsought an order and decree on the 2nd defendant-appellant abovenamedto demolish and remove the structures constructed by her onlots 2A, 6A and 7A in Plan No. 4242 dated 20. 01. 1988 madeby S. D. Liyanasuriya, Licensed Surveyor. There was no referenceto a Plan by Surveyor Liyanasuriya in the original plaint. The amendedparagraphs 10 (a), (b) and (c) in place of the original paragraph10 was completely different. The new paragraph sought to aver 110what was contemplated by the Commissioner of National Housingand purportedly intended by him. Thereby, the plaintiff calledthe contents of her own deed erroneous having based her originalplaint on the same deed. The right of way claimed was now amendedto read from "lots 7 and 11 in Plan No. Ko / 1410" etc. to "lots6 and 7 in plan No. Ko / 1410" etc. New paragraph 22 (a) referredto a Survey by Surveyor Liyanasuriya after the institution of this action.
The new paragraph 22 (b) spoke of an encroachment by the2nd defendant. The character of this case seemed entirely changedby the said amendment. The Court seems to have not considered 120all this. It had curiously allowed such an amendment. Whetherthe 2nd defendant was present in Court or not, it was theduty of Court to have ex mero motu considered the effect of theamendment. In view of the contents of explanation 2 of section 150of the Civil Procedure Code it was the duty of Court to have checkedwhether the amended plaint sought to place on record a case materiallydifferent to that which was originally filed. Here, was a declaratoryaction filed against the 1st defendant claiming no relief against the2nd defendant. Then suddenly an amended plaint is filed averring that
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the 2nd defendant had encroached and asking for relief highly 130prejudicial to the interests of the 2nd defendant and the Court doesnot question the propriety of such action nor does it give noticeon its own to the 2nd defendant. More so, in view of the type ofanswer filed by the 2nd defendant in this case, in absolute trust.
Finally, the case comes up for ex parte trial against the 2nddefendant on 16. 10. 1990 and judgment was delivered against heron 05. 12. 1990.
But, in fairness to the Additional District Judge it must be notedthat the ex parte judgment dated 04. 12. 1990 delivered on05. 12. 1990 was based on the original plaint dated 22. 02. 1985 140and not on the amended plaint dated 05. 02. 1990. This judgmentand decree did not affect the interests of the 2nd defendant.
But, on 15. 01. 1991 the plaintiff filed a motion and sought theamendment of the judgment and decree. There was no noticegiven to the 2nd defendant. On 24. 01. 1991 the Court permitted theapplication to amend. It is not clear whether the learned AdditionalDistrict Judge considered the effect of such amendment beforeallowing the application. If he considered the effects he would nodoubt have noticed the material difference between the reliefsprayed for in the original plaint and the amended plaint.iso
When copy of the amended decree was served on the 2nd defendant,she moved to vacate the ex parte judgment and decree in terms ofsection 86 of the Civil Procedure Code. The Additional District Judgeas per journal entry 63 dated 25. 02. 1991 rejected the applicationin chambers on the basis that the Petition and Affidavit had not beenproperty stamped. This became the subject-matter of appeal in Courtof Appeal Case No. CA 194/91 and Supreme Court caseNo. SC 5/93 and by order dated 26. 07. 1995 the Supreme Courtdirected the District Court to inquire into the application under
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section 86 of the Civil Procedure Code.
CA
Rajasingham v. Seneviratne and Another
(Wigneswaran, J.)
89
On 25. 10. 1996 the Additional District Judge, Colombo, disallowedthe application to set aside the ex parte judgment. The present appealis against the orders dated 25. 10. 1996, 04. 12. 1990 (ex partejudgment) and 24. 01. 1991 (amendment of decree).
On the face of it, the amendment to the plaint took placewithout conforming to the provisions of section 93 of the CivilProcedure Code. Under that section it was the Court which shouldhave given notice to the 2nd defendant. It should have gatheredall parties together before it on its own volition. In this instance itwas absolutely essential that this was done due to the type of answer 170filed by the 2nd defendant. Several calling dates were givenwithout taking this case up for trial on the basis that it was to becalled with case No. 4705/ZL. This meant that parties awaited thedecision in case No. 4705/ZL. When an application was suddenlymade on 08. 02. 1990 to amend plaint, immediately the Courtshould have noticed the 2nd defendant irrespective of whetherthe plaintiff had sent a copy of motion to amend or a copy ofdraft amended plaint to 2nd defendant by registered post. Evenafter notice by Court, if the 2nd defendant was not present in Court,yet the Court was under obligation to consider whether the isoamended plaint sought to change the whole character of theoriginal plaint filed in this case and whether it was materiallydifferent or not to the original plaint filed. None of these havebeen done.
The learned President's Counsel on behalf of the plaintiff-respond-ent, who is herself a respected President's Counsel, has sought toargue as follows :
No evidence was led on behalf of the 2nd defendant to setaside the ex parte decree entered against her.
This could be answered promptly and tersely. When the order 190fixing the case for ex parte trial itself was questionable the nature
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of evidence placed by the 2nd defendant to set aside the ex partedecree becomes irrelevant.
Notice of the amendment of the plaint was, in fact, givento both defendants.
This is not so. The notice was expected to be given by Court interms of section 93 of the Civil Procedure Code and not by theplaintiff. In any event, in terms of the law (as on the relevant date)the Court could have allowed amendment only "in exceptionalcircumstances and for reasons to be recorded". No such exceptional 200circumstances were identified nor reasons for allowing amendmentrecorded.
The parties and their legal representatives were expectedto be present in Court on a regular calling date.
Not in this instance. The 2nd defendant had already filedanswer that she was not contesting the plaintiff's original plaint sinceno relief was claimed against her. She was entitled to keep awayon a regular calling date expecting the case to take its normal coursewith the plaintiff prosecuting the original plaint. Any change in courseshould have had the attention of the 2nd defendant, specially when 210such change was going to affect her adversely. Any such change incourse should have been undertaken after notice to all partiesby Court. Not only that. Even if she was absent from Court after notice,the Court was under obligation to inquire into the feasibility ofallowing an amended plaint in this instance materially different fromthe original plaint filed.
Whether notice was given of amendment of plaint to the 2nddefendant or not is irrelevant in an application to set asidethe ex parte decree.
CA
Rajasingham v. Seneviratne and Another
(Wigneswaran, J.)
91
This is an astounding submission. If this submission is accepted 220what it would mean is, that a plaintiff has a right to do anything heor she likes and obtain an ex parte decree in whatsoever mannerhe or she wishes and the only relief that a defendant whohad defaulted in appearance but adversely affected by the decree has,is to make out a proper case for his absence. If not, theex parte decree could be executed, come what may. The seriousflaw in this argument lies in making the Court a party to allthe machinations of a plaintiff. As in this case, if an amended plaintis filed materially prejudical to the (2nd) defendant and of a differentcharacter to the original plaint and if the (2nd) defendant keeps 230away on the calling date, the amended plaint must be acceptedby the Court because the (2nd) defendant is not before Courtand then an ex parte trial should be held and the burden willshift thereafter on the (2nd) defendant. The prayers in the plaintwould have to be granted because the (2nd) defendant is notbefore Court. Until the (2nd) defendant purges his default, woe beunto him. The decree can thereafter be executed howsoeverunreasonable it might be.
We are afraid a Court should not be made a party to such sterileproceedings. A Court of law should not be an apathetic bystander 240under these conditions. If notice of amendment of pleadings isnot given in terms of the law to the party affected, if the Court doesnot consider (whether the affected party is before Court or not)the feasibility of the amendment prayed for and act in terms of thelaw, all proceedings thereafter would become tainted with illegality,whatever the shortcomings in the defendant's conduct might be.
In this case all proceedings as from 08. 02. 1990 when theplaintiff moved to amend the plaint and such application was allowedwithout notice to the 2nd defendant-appellant, became taintedwith illegality.250
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Prior to 16. 10. 1990 plaintiff's lawyer filed a list of witnessesand documents with notice to the registered Attorney-at-lawfor the 2nd defendant. The 2nd defendant must, therefore,be presumed to have had notice.
The notice contemplated under section 93 of the Civil ProcedureCode is not to be presumed. It has to be real. The Court shouldoversee the issue of notice on parties and satisfy itself that allparties did receive notice. Not only that. When amendmentwas allowed the exceptional circumstances that gave rise to suchamendment should have been recorded in terms of the then 260existing provisions of the law.
Thus, we find no difficulty in coming to the conclusion that allsteps taken after 24. 02. 1990 were tainted with illegality. We do notneed the extra documents filed by the 2nd defendant-appellantwith her written submissions in this Court to come to our decision.Hence, the objections with regard to the filing of extra documentsis not being considered by us in this judgment.
We set aside the orders dated 04. 12. 1990, 24. 01. 1991 and
10. 1991 made by the Additional District Judge, Colombo, in thiscase and direct the learned Additional District Judge to give notice 270to parties with regard to the application for amendment of plaint, havean inquiry in this regard and thereafter proceed according to law.
The appeal is allowed with incurred costs payable by the plaintiff-respondent to the 2nd defendant-appellant.
TILAKAWARDANE, J. – I agree.
Appeal allowed.