BASNAYAKE, C.J.—Thirumalay v: Kulandavelu
1904Present: Basnayake, C.J., Abeyesundere, J., andSri Skanda Rajah, J.S. THIRUMALAY and another, Appellants, andP. KULANDAVELU, Respondent
S. G. 106161 (Inly.)—D. C. Hatton, 5907
Pleadings—Amendment of plaint—Scope—Alternative cause of action—No provisionfor pleading it—Civil Procedure Code, ss. 36, 46, 93.
Plaintiff filed a plaint basing his action on a contract of partnership. Hesought to amend the plaint subsequently by adding an alternative cause of
action based on trust.
Held, that a plaint cannot be amended so as to convert an action of onecharacter to an action of another and inconsistent character.
Held further, that, while section 36 of the Civil Procedure Code permits aplaintiff to unite in the same action several causes of action, there is no pro-vision in the Code for pleading causes of action in the alternative. The Courthas therefore no power to amend a plaint by adding an alternative cause ofaction.
A.PPEAL from a judgme it of the District Court, Hatton.
H. W. Jayewardene, Q.G., with L. G. Seneviratne and I. S. de Silva,for the defendants-appellants.
O.Ranganathan, with M. T. M. S'vardeen and Mark Fernando,for the plaintiff-respondent.
June 2, 1964. Basnayake, C.J.—
The plaintiff-respondent instituted this action on 2nd May 1960against the defendants-appellants for the recovery of a sum of Rs. 5,000.The material statements in the plaint are as follows :—
“2. Prior to the dates material to this action S. Thirumalay, S. K.Sellamuttu, P. Ramasamy, V. Vaithilingam, P. Tharmalingam Nadarand S. Thangiah Nadar were carrying on business together underthe name, style and firm of “ S. T. T. R. V. Thirumalay & Co.” atNo. 42 Tillicoultry Bazaar, Lindula.
On or about the 17th day of December 1954, the plaintiff above-named joined the said business having contributed as his capitalan aggregate sum of Rs. 3,250.00.
At all times material to this action the said business was carriedon by the plaintiff and the defendants, the others mentioned in para-graph 2 above having from time to time retired from the said business.
BASNAYAKE, C.J.—Thirumalay v. Rulandavetu
On or about the 22nd day of June 1958 the plaintiff abovenamedgave notice to the defendants that he would cease to be a partner ofthe said Firm as from the 30th day of Septembei 1959.
The defendants agreed and undertook to pay to the plaintiffhis capital and share of profits after going into the accounts.
On the 1st day of September 1959 the defendants wrongfullyand without notice to the plaintiff intimated to the Registrar ofBusiness Names that the plaintiff was no longer a partner of the saidFirm and had fiie plaintiff’s name expunged from the said Register.
Notwithstanding their undertaking to pay to the plaintiff hiscapital and share of profits the defendants have failed and neglectedto pay the said sum to the plaintiff though thereto often demanded.
Apart from his capital of Rs. 3,250.00 the plaintiff estimates hisshare of the profits upto date at Rs. 1,750.00 which aggregate sumof Rs. 5,000.00 or any part thereof the defendants have failed andneglected to pay.”
The defendants filed answer denying that a cause of action had accruedto the plaintiff and pleaded that on the averments contained in theplaint the plaintiff was not entitled to maintain this action as thepartnership agreement pleaded was of no force or avail in law as it wasnot in writing (s. 18 (c) Prevention of Frauds Ordinance). That answerwas filed on 6th September 1960. The case was fixed for trial on24th January 1961. On that day the Procter for the plaintiff moved for apostponement of the trial on the ground that he wished to amend hisplaint. The learned District Judge made order—“ Take case offtrial roll. Call case 7.2.61 for amended plaint ”. On 7th February1961 an entirely new plaint called “amended plaint” was filed. Itcontained paragraphs 2 to 9 of the plaint that was filed on 2nd May1960 and six further paragraphs under the heading “ for an alternativecause of action ”. Those paragraphs are as follows :—
“ 10. The plaintiff advanced to the defendants abovenamed a sumof Rs. 3,250.00 which sum the defendants employed in the tradeor business of S. T. T. R. Thirumalay & Co., at No. 42 TillicoultryBazaar, Lindula.
The said trade or bus mess was carried on by monies advanced bythe plaintiff and the defendants abovenamed and the defendants werein control and possession of the said business partly on their ownbehalf and partly on behalf of the plaintiff as trustees.
The defendants abovenamed are trustees for the plaintiff to theextent of Rs. 3,250.00 advanced by the plaintiff to the defendants.
During the conduct of the said business the defendants astrustees gained for themselves pecuniary advantage and thereby holdfor the benefit of the plaintiff his proportionate share of the advantageso gained and which the plaintiff assesses at Rs. 1,750.00.
SRI SKANDA RAJAH, J.—Thirumalay v. Kulandavelu
The defendants as such trustees agreed and undertook to payto the plaintiff the said aggregate sum of Ra. 5,000.00, but notwith-standing such undertaking have failed and neglected to pay the saidsum to the plaintiff though thereto often demanded.
A cause of action has therefore accrued to the plaintiff to suethe defendants jointly and severally for the said sum of Rs. 5,000.00. ”
Objections were taken by the defendants to the proposed amendmentsof the plaint on the grounds—
" (a) that it seeks to bring in a new cause of action.
(6) that it will result in depriving the Defendants of defencesotherwise available to them.
(c) that it seeks to alter the scope of the action.”
The additions to the plaint sought to convert the action from anaction on a partnership to an action based on a trust. It has beenheld by this Court that an amendment which would have the effectof converting an action of one character to an action of another andinconsistent character cannot be made (Lebbe v. Sandam1). There is afurther objection to the amendment, and that is that, while section 36permits the plaintiff to unite in the same action several causes of action,there is no provision in the Code for pleading causes of action in thealternative. The Court has therefore no power to amend a plaint byadding an alternative cause of action. The learned District Judgeheld the view that no prejudice would be caused to the defendantsby the proposed amendment and allowed the application of the plaintiffto file the proposed amendment. In our opinion the learned DistrictJudge should not have amended the plaint by adding an alternativecause of action.
We therefore allow the appeal with costs, set aside the order of thelearned District Judge and send the case back for trial of the action onthe plaint originally filed.
Abbyesundere, J.—I agree.
Sri Skanda Rajah, J.—
I agree that the appeal should be allowed with costs. As this is aquestion of importance, which arises frequently in courts of first instance,
I would like to state my own view very briefly.
“ The whole purpose of pleadings is to define, to clarify and to limitthe issues which are to be the subject of the pending contest.”—Jonesv. Skeltona. For this reason the Courts have been very liberal in exercis-ing the wide discretion vested in them under sections 46 and 93 of the
1 (1963) 64 N. L. R. 461.
0 (1963) 1 W. L. R. 1362 P. O. at 1373.
288SRI SKANDA RAJAH, J.—Thirumalay v. Kulandavelu
Civil Procedure Code which, in my opinion, should be read togetherin permitting an amendment at any stage of the action. This discretion,however,is subject to two restrictions, namely,
“ . . . no amendment shall be allowed which would have theeffect of converting an action of one character into an action ofanother and inconsistent character ; ” (Proviso to section 46),
“ No amendment shall be allowed which works an injustice tothe other side, for example, an amendment which would have theeffect of depriving the other side of a plea of prescription.”
The amendment proposed in this case would fall within the first restric-tion. The plaintiff came into Court basing his action on a contract ofpartnership. The proposed amendment or substitution (the latter beingthe more appropriate term) is on the basis of a completely differentlegal relation, namely, trust. This would convert the action into “ oneof another and inconsistent character In S. C. 99/62 (Interlocutory)—
C. Colombo 52707/M (S. C. Minutes of 29.5.64) this Court expresseditself as follows :—
“Where a plaintiff bases his claim on a specific legal relation allegedto exist between him and the defendant, he should not be allowedto amend the plaint so as to base it on a different legal relation.”—per Sri Skanda Rajah, J.
S. TTHIRUMALAY and anothers, Appellants, and P. KULANDAVELU, Respondent