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RATWATTE v. OWEN.D. C., Kandy, 10,263.
Amendment of pleadings—Principle by which Courts ought to be guided—Discretion of the Court as to amendment—Alteration of plaint notfollowed by alteration of answer—Settling of issues—Civil Pro-cedure Code, s. 93.
Parties to a suit have no. right to amend the pleadings : it is tothe Court that discretion is given by section 93 of the Civil Pro-cedure Code ; and although, ordinarily, the Supreme Court wouldnot interfere to control such discretion, yet where it appeared thatthe District Judge had made alterations in a plaint, but omitted toalter the answer to meet the altered plaint, and thus made thequestion at issue between the parties more obscure, the SupremeCourt set aside the order amending the plaint and remitted the caseto the Court below to settle the issues, and then to make the amend-ment in the pleadings so as to harmonise them with the issuesframed.
Per Lawrie, J.—The principle by which a Court ought to beguided in deciding to alter a pleading is that the alteration willmake the real issues clear.
• Per Withers, J.—After a plaint has once been accepted, itshould not, as a general rule,be amended until after the issues havbbeen settled. The office of an amendment will generally at thatstage be to square the plaint with the issues framed.
facts of the case appear in the judgments.
Domhorst, for appellant.
Sampayo, for respondent.
• ^Cur. adv. vult.
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14th July, 1896. Lawrie, J.—
In the ordinary course this Court will not interfere to control thediscretion given by the 93rd section to Courts of first instanceto amend “ all pleadings and processes in the action by way of“ addition or of alteration, or of omission.” The principle bywhich a Court ought to be guided in deciding to alter a pleadingis that the alteration will make the real issues clear.
Here the Court deleted a paragraph in the prayer. The Courtdid not consider (as I think it was bound to do) what alterationswere then necessary in the answer. Unless the answer was amendedthe alteration made by the Court was not an amendment, because ittouched only one of the pleadings and made the question in issuebetween the parties more obscure.. No doubt the learned DistrictJudge said that the defendant “ is to make such amendment of his“ answer as he may be advised, on or before a certain day,” butthat is precisely what the Code does not contemplate nor allow;the parties have no right to amend ; it is to the Court that the dis-cretion is given, in the confidence that no alteration which is not anamendment will be allowed.
Here the District Judge devolved on the defendant a power whichthe Code gives to him alone.
I cannot approve of the alterations made by the District Judge,because these left the record worse than it was, and because itdevolved on others the task of making further alterations. Iwould not interfere with the order amending, however great werethe changes, provided that then and there the Judge had by alter-ations, additions, or omissions brought out clearly and fully themeaning of both parties, and had so made the settlement of issuesan easy task. I would interfere with partial changes which unsettlethe pleadings and leave the settlement to be made afterwards, notby the Court, but by one of the parties.
I agree to set. aside the order allowing the amendment, and Irecommend that the record be sent with instructions to the DistrictJudge to call parties before him for the settlement of issues, then tomake such alterations in the pleadings as may best bring out thereal questions in dispute.
I must say, I think, that the District Judge should not haveallowed this amendment. In the first place it was premature, andin the second place it does not make this obscure plaint a whitclearer.
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After a plaint has once been accepted, I think as a general rolethat it should not be amended till after the issue has been settled.The office of an amendment will generally at that stage be to squarethe plaint with the issue, if necessary.
A plaint as a rule should not be accepted unless it is plain. Theoffice of an amendment at that early stage is to bring a plaint intoline with the Code and to make it plain. Chapter VI. of the Pro-cedure Code relates to the framework and scope of an action; chapterVil. prescribes how the plaint shall be filled in. Section 46 leavesit to the discretion of the Judge to refuse to entertain a plaint whichis defective in any of the ways pointed out from (a) to (/) of thatsection and to return it for amendment, provided that no amend-ment shall be allowed which would have the effect of converting anaction of one character into an action of another and inconsistent.I do not hesitate to say that as a general rule a plaint which offendsagainst section 46 should not be entertained, but should be then andthere amended or returned for amendment, as the case may be.
How this plaint came to be entertained I am at a loss to under-stand, for I never read a more obscure pleading. I would declarethat the amendment should be treated as if not made. The plaintwill thus stand as it is. I would remit the case for the Court toappoint a day for the hearing. On that day the issues will besettled by agreement of parties, or by the Court on the materialbefore it, on documents produced, and examination of parties ifnecessary.
The plaint can then be confined to the issue by amendment, ifthat is fair and right. I would give no costs.
RATWATTE v. OWEN