021-SLLR-SLLR-2005-V-3-RUSHANTHA-PERERA-vs.-WIJESEKERA.pdf
CA
Rushantha Perera i/s Wijesekera (Sripavan, J.) ’(P/CA))
105
RUSHANTHAPERERAvs
WIJESEKERACOURT OF APPEAL.
SOMAWANSA, J. (P/CA) ANDWIMALACHANDRA.J.
CALA 110/2005.
DC MATALE 7200/MR.
AUGUST 3, 2005.
Civil Procedure Code, section 93(2) – Amendment of plaint after first date oftrial – Circumstances to be taken into consideration – What is the purpose of theAmendment No. 9 of 1991 ?
The plaintiff.-petitioner instituted action on a purported cause of actionaccrued to him on a defamatory statement alleged to have been made by thedefendant-respondent. The defendant-respondent specifically took up theposition that the action cannot be maintained as the plaintiff-petitioner hasfailed to properly state the date on which the purported cause of action accruedto him. In his replication the plaintiff-petitioner averred that, he has properlystated the dates on which the causes of action accrued to him. Thereafter the
106
Sri Lanka Law Reports
(2005) 3 Sri L R.
plaintiff-petitioner sought to amend the plaint on the second date of trial to givethe relevant date. The trial judge refused the said application.
HELD:
The provisions applicable to the amendment of pleadings after the firstdate of trial are the provisions contained in section 93(2) of Act No. 9of 1991.
Per Somawansa, J. (P/CA):
“In the instant application for leave the amendments the plaintiff-petitioner is seeking to effect are matters which existed at the time ofthe plaintiff filing the action and within his knowledge and/or was madeaware by the defendant-respondent.”
The plaintiff has waived his right to amend the plaint by his avermentsin his replication.
The amendment introduced by Act, No. 9 of 1991 was clearly intendedto prevent the undue'postponement of trials.
APPLICATION for leave to appeal from the order of the District Courtof Matale.
Case referred to :
Dane vs. Abdul Latiff{ 1995) 1 Sri LR. 225
Ceylon Insurance Co. Ltd. vs. Nanayakkara (1999)3 Sri LR 50
Colombo Shipping Co. Ltd Vs. Chiaya Clothing (Pvt) Ltd. (1995)2 Sri LR 97
Avudiappan vs. Indian Overseas Bank (1995)2 Sri LR 131
Kuruppuarachchi vs. Andreas (1996) 2 Sri LR 11
Ranaweera vs. Jinadasa – SC Application 4/91
Paramalingam vs. Sirisena and Another {2001)2 Sri LR 239
Upul Ranjan Hewage for plaintiff-petitioner.
C. Wickramanayake for defendant-respondent.
Cur. adv. vult.
CA
Rushantha Perera i/s Wijesekera (Somawansa, J. .(P/CA))
107
November 11, 2005.
ANDREW SOMAWANSA, J. (P/CA)This is an application" seeking leave to appeal from the order of thelearned Additional District Judge of Matale dated 10.03.2005 refusing anapplication made by the plaintiff-petitioner to amend the plaint and if leaveis granted to set aside the aforesaid order and allow the application dated
for amendment of the plaint.
When this application was taken up for inquiry both parties agreed toresolve the entire matter by way of written submissions and both partieshave tendered their written submissions.
The relevant facts are on 30.11.2004 which was the second date of trialtwo admissions were recorded and on behalf of the plaintiff-petitioner 10issues were raised. Thereafter counsel for the plaintiff-petitioner made anapplication to amend the plaint.
The defendant-respondent objected to this application and parties weredirected to tender written submissions. Having considered the writtensubmissions so tendered by both parties the learned Additional DistrictJudge by his aforesaid order dismissed the plaintiff-petitioner’s applicationto amend the plaint. It is from this order that the plaintiff-petitioner haspreferred this appeal.
It is contended by counsel for the plaintiff-petitioner that the learnedAdditional District Judge has erred in law when he made the impugnedorder for the following reasons
Additional District Judge has failed to consider the grave andirremediable injustice that would be caused to the plaintiff-petitioner if theapplication for amendment was not granted.
He has failed to give any reasons as to whether grave and irremediableinjustice would not be caused to the plaintiff-petitioner if his application foramendment was not granted.
That he failed to consider that the amendment sought to be madewas to correct a genuine and bona fide error in the plaint for the purpose ofclarifying the true dispute and by his request to replace the wrong month
108
Sri Lanka Law Reports
(2005) 3 Sri L R.
with the correct month the plaintiff-petitioner was not trying to convert theaction of one character to an action of a different character.
That he erred in law when he came to a finding that it was held inGunasekera vs. Abdul LatiffXhat an amendment cannot be allowed tocorrect a clerical error or a typographical error in terms of section 93(2)ofthe Civil Procedure Code.
That he failed to consider that the real date of alleged cause ofaction is mentioned in document marked P1 annexed to the plaint andthat it is also referred to in paragraph 7 of the plaint and any amendmentwould only clarify the real dispute.
That he has erred in law inasmuch as he has considered the aspectof delay without first considering whether grave and irremediable injusticewould be caused to the plaintiff-petitioner if his application for amendmentis refused.
It is interesting to note that the plaintiff-petitioner has instituted thisaction on a purported cause of action accrued to him on a defamatorystatement alleged to have been made by the defendant-respondent aspleaded in paragraph 7 of the plaint which reads as follows:
The defendant-respondent filed answer denying the avermentscontained in the aforesaid paragraph 7 of the plaint and in paragraph 9 ofthe answer specifically took up the position that the plaintiff-petitionercannot maintain this action as presently constituted inasmuch as theplaintiff-petitioner has failed to properly state the date on which thepurported cause of action accrued to him. Paragraph 9 of the answerreads as follows:
CA
Rushantha Perera vs Wijesekera (Somawansa,J. (P/CA))
109
Thus it could be seen that when the defendant-respondent in paragraph9 of his answer specifically stated that the plaintiff-petitioner has failed toproperly state the date on which the purported cause of action accrued tohim the plaintiff-petitioner without seeking to amend the plaint so as togive the correct date, in fact disputed the aforesaid position taken by thedefendent-respondent and went on to state in his replication that bypargraphs 7 and 11 of the plaint he has stated correctly the dates onwhich the causes of action accrued to him. Having taken such a stand henow seeks to amend paragraph 7 of the plaint by substituting the words“October 2002” instead of the words “September 2002" found therein.
It is comm'pn'ground that the plaintiff-petitioner has sought to amendthe plaint on the second date of trial and the relevant provisions applicableto the amendment of pleadings after the day first fixed for trial are theprovisions contained in Section 93(2) of the Civil Procedure Code whichreads as follows:
93. (2) “On or after the day first fixed for the trial of the action and beforefinal judgement, no application for the amendment of any pleadings shallbe allowed unless the court is satisfied for reasons to be recorded by thecourt, that grave and irremediable injustice will be caused if suchamendment is not permitted, and on no other ground, and that the partyso applying has not been guilty of laches".
It appears that thereafter the plaintiff-petitioner disputed theaforesaid position taken by the defendant-respondent and in paragraph 3of the replication the plaintiff-petitioner further stated that by paragraphs 7and 11 of the plaint he has separately averred the causes of action andthat he has properly stated the dates on which the causes of actionaccrued to him. Paragraph 3 of the replication reads as follows :
Sri Lanka Law Reports
(2005) 3 Sri L ft
110
Section 93(2) of the Civil Procedure Code has been considered in anumber of cases and in the case of Gunasekera vs. Abdul LatifP cited bycounsel for the plaintiff-petitioner himself it was held :
"Court will grant relief under section 93(2) of the Civil Procedure Codeonly if the delay can be reasonably explained. The provisions of section93(2) of the Civil Procedure Code are intended to be used whenamendments to pleadings are necessitated by unforeseen circumstances.Further it was held amendment to pleadings on or after the 1st date of trialcan be allowed only if the Court is satisfied that grave and irremediableinjustice will be caused if the amendment is not permitted and the partyapplying has not been guilty of laches. ”
Counsel for the plaintiff-petitioner while relying heavily on the aforesaiddecision goes onto say that the facts and circumstances of that caseGunasekera vs. Abdul Latiff (supra) are entirely different from the instantaction. Counsel for the plaintiff-petitioner also cited the decision in CeylonInsurance Co. Ltd., vs. Nanayakkara2. The facts were as follows :
The plaintiff-respondent instituted action against the defendant-petitionerclaiming a certain sum due on a contract of insurance. The defendantdisclaimed liability. Trial commenced on 28.07.95; after recording issues,it was postponed for 16.10.95. On this date certain objections were takenand when the trial resumed again on 09.01.97 a trial de novo was orderedon 13.05.97. On 07.05.97 the plaintiff sought to amend his pleadings,which was allowed by Court.
It was held in that case :
“1. section 93 (2) prohibits Court from allowing an application foramendment, unless it is satisfied that grave and irremediable injustice willbe caused if the amendment is not permitted and the party applying hasnot been guilty of laches.
The Court is required to record reasons for concluding that both conditionsreferred to have been satisfied.
2. The application to amend by pleading mistake or inadvertence can inno sense be regarded as necessitated by unforeseen circumstances. Theplaintiffs’ conduct point to one conclusion, viz. that they have acted without
CA
Rushantha Perera vs Wijesekera (Somawansa; J. (P/CA))
111
due diligence “ this error could have been discovered with reasonablediligence ; the need for the amendment did not arise unexpectedly.
It is contended by counsel for the plaintiff-petitioner that therequirement that the application to amend pleadings on the basis of mistakeor inadvertence should have been necessitated by unforeseencircumstances as held in the aforesaid case has introduced a restrictionnot imposed by legislature.
In the case of Colombo Shipping Co. Ltd., vs.Chirayu Clothing (Pvt)Ltd.,3 it was held :
"Amendments on and after the first date of trial can now be allowedonly in very limited circumstances namely, when the court is satisfied thatgrave and irremediable injustice will be caused, if the amendment is notpermitted and the party is not guilty of laches”.
Also in the' case of Avudiappan vs. Indian Overseas Bank4 it was held :
"The amendments contemplated by section 93(2) are those that arenecessitated due to unforeseen circumstances. Laches does not meandeliberate delay, it means delay which cannot be reasonably explained.The plaint was filed in July 1988, the amendment was sought in September1994. No explanation was forthcoming from the respondent for the delay.Such a delay in seeking amendment of pleadings on the 5th day of trialcannot be countenanced. ”
In the case of Kuruppuarachchi vs. Andreas? wherein the Courtconsidered the effect of the amendment introduced to the Civil ProcedureCode by Act No. 9 of 1991 :
"The amendment introduced by Act No. 9 of 1991 was clearly intendedto prevent the undue postponement of trials by placing a significantrestriction on the power of court to permit amendment of pleadings ‘on orafter the day first fixed for trial of the action”.
The Court further went on to state at page 13 that:
“The relevance of those observations for the present purposes is thatthey indicate the rationale underlying the amendment introduced by ActNo. 9 of 1991. While court earlier "discouraged" amendment of pleadingson the date of trial. Now the court is precluded from allowingsuch amendments save on the ground postulated in the subsection.”(emphasis added)
112
Sri Lanka Law Reports
(2005) 3 Sri L R.
I would also cite the following decisions :
Ranaweeravs. Jinadasa6
Per Amerasinghe, J.
“No postponements must be granted or absence excused, except uponemergencies occurring after the fixing of the date, which could not havebeen anticipated or avoided with reasonable diligence, and which cannototherwise be provided for. ”
Also in the case of Paramalingam vs. Sirisena and Another1 it was held:
“Laches means negligence or unreasonable delay in asserting orenforcing a right. There are two equitable principles which come into playwhen a statute refers to a party being guilty of laches. The first doctrine isdelay defeats equities. The second is that equity aids the vigilant and notthe indolent’’.
In the instant application for leave the amendments the plaintiff-petitioneris seeking to effect are matters which existed at the time of the plaintiff-petitioner filing this action and within his knowledge and/or was madeaware by the defendant-respondent. The plaintiff-petitioner now cannot beheard to say that the date on which the purported cause of action accruedto him was another date. In the circumstances, I am unable to see howgrave and irremediable injustice would be caused to the plaintiff-petitionerunless the amendment is accepted by Court. It is very clear the plaintiff-petitioner has waived his right to amend the plaint by his averments in hisreplication. It is apparent that the learned Additional District Judge in aclosely considered order has come to a correct finding that the plaintiff-petitoner’s own conduct prevents him from amending the pleadings interms of section 93(2) of the Civil Procedure Code.
In the circumstances, I do not think any further consideration is necessaryas to the submissions made by counsel for the plaintiff-petitioner. I have nohesitation in rejecting the application for leave with costs fixed at Rs. 20,000/-.
WIMALACHANDRA J. -1 agree.
Application dismissed.