Rohana v. Shyama Attygala <S Others
v.SHYAMA ATTYGALA & OTHERS
COURT OF APPEAL.
CA NO. 1169/98.
DC COLOMBO NO. 16155/L.
MAY 21. 1999.
Civil Procedure Code – SS. 18, 21, 93 (2) – Addition of parties – Delay – Discretion- Due diligence.
The plaintiff-petitioner instituted the above styled action and sought a declarationfor a right of way, over lot 10, for a demolition order to demolish all structuresconstructed on the said road reservation. The position of the 1st defendant-respondent was that the said lot 10, is not a road reservation. Commission wasissued to ascertain whether there are structures on the road reservation (lot 10).After the Commissioner returned his Commission on 18.10.93 application wasmade to add 2nd and 3rd respondents, and the said application was allowed.At the trial when the plaintiff was being cross-examined an application was madeon 29.7.98 to add the 4th and 8th respondents. This was disallowed by court.
On appeal –
So long as the Court has exercised its discretion judicially an appellatecourt would not disturb and interfere with such an order.
Plan and the Report were tendered to court on 16.10.93. The plaintiff-appellant's failure to act upon the report tendered to court by theCommissioner as far back as 16.10.93 until 29.7.98 is indicative ofthe absence of due diligence on his part.
The conclusion arrived at by the learned trial Judge is a justifiable con-clusion because it is a well-established rule of practice that an amendmentwhich works an injustice to the other side should not be allowed.
Further, the application to add the 4th and 8th respondents-respondentsas defendants was made 4 years and 5 months after the plaintiff-petitioner
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became aware that there had been a number of structures obstructing thealleged road reservation. The need for the amendment did not ariseunexpectedly.
S. 18 – CPC, the words "the Court may … in such terms as the Courtthinks just . . creates a discretionary power which must be exercisedaccording to the principles applicable to the exercise of such a power.
APPEAL from the order of the learned District Judge, Colombo.
Cases referred to:
Colombo Shipping Co., Ltd. v. Chirayu Clothing (Pvt) Ltd.,  2 SriLR 97, 102.
Roberts v. Hopwood – 1925 AC 578 at 613.
Wijewardena v. Lenora – 60 NLR 457 at 463.
Lulu Balakumar v. Balasingham Balakumar – SC Appeal No. 125/94.CA No. 58/84, DC 16211/D – CAM 11.9.1995.
Daryanani v. Eastern Silk Emporium Ltd. – 64 NLR 529 at 531.
M. L. M. Hidayatulla with Upali Wijeratne and S. Bavrie for plaintiff-petitioner-petitioner.
Ikram Mohamed, PC with Hemantha Situge for 1st defendant-respondent.Ranjan Suwandaratne for 2nd and 3rd defendant-respondents.
Cur. adv. vuit.
December 6, 1999.
The plaintiff-petitioner instituted these proceedings in the DistrictCourt of Colombo in case No. 16155/L seeking, inter alia, the followingreliefs:
for a declaration that the road reservation depicted as lot 10in plan No. C/47 dated 25.1.1971 made by M. S. Ranathunga,Licensed Surveyor, as a right of way.
for a demolition order to demolish all structures constructedon the said road reservation, and
CARohana v. Shyama Attygala & Others (Kulatillaka, J.)383
for a declaration that the plaintiff-petitioner has a right to usethe said road reservation as a right of way.
On 17.3.1993 the 1st defendant-respondent-respondent filed heranswer and averred that lot No. 10 in plan No. C47 is not a roadreservation. Thereafter, on an application preferred by the plaintiff-petitioner a commission was issued by the court to ascertain whetherthere are structures on lot No. 10 in plan No. 47C. The Commissionerhad tendered his report to court marked as 'D' on the 18th of October,1993. Thereupon, the plaintiff-petitioner made an application in termsof section 18 of the Civil Procedure Code to add the 2nd and the3rd defendants-respondents-respondents as defendants in the casewhich application was allowed by the learned trial Judge.
Thereafter, the case had come up for trial, on several dates andthe plaintiff whilst being cross-examined admitted that there wereseveral structures constructed by others on the alleged right of wayand that those structures were shown in the Commissioner's reportand plan.
On 29.7.1998 an application was made to add the 4th to 8threspondents-respondents as defendants. This application was objectedto by the 1st defendant-respondent-respondent and parties hadtendered their respective written submissions to court. The learnedtrial Judge having considered the written submissions tendered bythe parties made order dated 22.9.1998 disallowing the application.By this appeal the plaintiff-petitioner is seeking to impugn the learnedDistrict Judge's order.
Point raised and. urged by the learned counsel who appeared onbehalf of the plaintiff-petitioner is that the learned trial Judge has failedto appreciate the objectives of section 18 of the Civil Procedure Codeand thereby erred himself in law. Counsel referred to the fact thatsection 18 of the Civil Procedure Code provides for parties improperlyjoined to be struck out and also for the addition of parties.
Counsel submitted that an application under section 18 to havea person added as a party can be made at any time in order to enablecourt effectually and completely to adjudicate upon and settle all the
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questions involved in that action. He contended that in this case thelearned trial Judge has failed to exercise the discretion given to himin terms of this section judicially.
On a careful scrutiny of the order we find that the learned DistrictJudge has observed in his order that in the plan and report dated27.9.93 tendered to court by Licensed Surveyor Saliya Wickremasinghe,he had depicted and described the obstructions to the alleged roadreservation and as such the plaintiff had all the opportunity to beaware of the necessary parties and to take steps in terms of section18 of the Civil Procedure Code at that point of time. The learnedJudge has held that by waiting so long a period of time until 4.3.98to make an application to add the 4th to the 8th respondents-respond-ents, he becomes guilty of laches and that if the application was tobe allowed by court it would cause irremediable loss to the defendants.It appears that the learned Judge was conscious of the judgment ofRanaraja, J. in Colombo Shipping Co., Ltd. v. Chirayu Clothing (Pvt)Ltd.m where he expressed the view that sections 18, 21 and 93 (2)of the Civil Procedure Code have to be read together in allowing orrefusing an application made in terms of section 18 of the CivilProcedure Code.
The words "The Court may … in such terms as the court thinkjust" in section 18 create a discretionary power which must be exercisedaccording to the principles applicable to the exercise of such a power.Vide Roberts v. HopwoocF1 at 613. So long as the court has exercisedits discretion judicially this court sitting in appeal cannot and will notdisturb and interfere with such an order. On the other hand, this courtmay do so if it appears that some error has been made in exercisingthe discretion and that the Judge has acted illegally, arbitrarily or upona wrong principle of law. This principle of law is embodied in thedecision of Basnayake, J. in Wijewardane v. Lenorai3) at 463.
One of the reasons adduced by the learned District Judge inrefusing the application is that the petitioner had been guilty of laches.Leave apart the period of time that had elapsed, it is pertinent toconsider whether the need for amendment arose unexpectedly. Videthe decision of Justice Fernando in Lulu Balakumar v. BalasinghamBalakumaPK
CARohana v. Shyama Attygala & Others (Kulatillaka, J.)386
We reiterate the fact that the plan and the report of the Commissionissued by court had been tendered to court on 16.10.93 on whichdate the plaintiff was made aware of the obstructions to the allegedroad reservation in respect of which he was asking for a declaration.The application to add the 4th to the 8th respondents-respondentsas defendants was made on 30.3.98, 4 years and 5 months afterthe plaintiff-petitioner bacame aware of the fact that there had beena number of structures obstructing the alleged road reservation.Therefore, we are of the considered view that in this case the needfor amendment did not arise unexpectedly. Therefore, we do not seeany reason to interfere with the learned Judge's finding that theplaintiff-petitioner was guilty of laches.
The other ground relied upon by the learned Judge in refusingthe application was that if the application to add the 4th to the 8threspondents as defendants in the case after a lapse of 5 years and5 months from the date of the institution of the action was allowedit would prolong the case and thereby would cause irremediable lossto the defendants. We hold that this conclusion arrived at by thelearned Judge is a justifiable conclusion because it is a well-estab-lished rule of practice that an amendment which works an injusticeto the other side should not be allowed. Vide the decision by Sansoni,J. in Daryanani v. Eastern Silk Emporium Ltd.l5) at 531.
Further, we observe that the plaintiff-petitioner's failure to act uponthe report tendered to court by the Commissioner as far back as16.10.93, until 29.07.98 is indicative of the absence of due diligenceon his part.
In the circumstances, we see no merit and substance in thesubmissions advanced by the learned counsel for the plaintiff-petitioner. Hence, we dismiss the appeal with costs.
WEERASURIYA, J. – I agree.