040-SLLR-SLLR-1982-1-Senaratne-Vs.-Cabraal.pdf
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COURT OF APPEALSenaratneVs.
Cabraal
CA(LA) 155/81 — DC. Colombo No.3920/RE
Section 21' of Rent1 Amendment Act No 55 of 1980 – Rent Act Section 22(2)6 -Amendment of Plaint – Exclusion of old ground in amended Plaint
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Senaratne v Cabraul (Rodrigo. J.l
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Plaintiff Respondent instituted this action for ejectment of the tenant onthe grounds that the premises were reasonably required by him: as aresidence for himself and members of his family in terms of Section'22(21b of the Rent Act.
However, before the trial stage was reached Amending Act No. 55 of1980 became effective amending in many ways the provisions of the Rent Act.
Section 21 of the Amending Act empowered the Plaintiff Appellant toamend his plaint so as to rely on a .new ground of action specified inthe new section 22(2)(bb)(i)(iij.
Plaintiff sought to amend his plaint as provided for in the new AmendingAct by introducing the new ground and deleting the original ground.
Defendant Appellant while accepting the new ground contended that tlieoriginal ground should stand side by side.
The District Judge allowed the addition of the new ground and thedeletion of the original ground.
Defendant appealed to the Court of Appeal-.
Held that since Court cannot under Section 2 of the Amending Actdetermine the actum on anything but the new ground it becomes necessarythat the original-plaint should be replaced in paragraphs in so far as they^ pro a hindrance to the determination of the action on the new ground.
APPEAL with leave obtained from order of the District Judge ofCplombo
Before: -Counsel:
Argued on:Decided on:
Rodrigo, .1. and L.H. de Alwis, J.
H. W. Jayewardene Q.C. with W. Siriwardcna &
R. de Silva __
for Defendant-Petitioner.
H.L. de Silva S. A. withT.B. Dillinutni forPlaint iff-Respondent.
2.4.1982.
Cur. udv.vult.
i7:5.l982
RODRIGO, jr,
•This is hri appeal’wfth'lifave obtained from an order of, Ihc .District-Judge dated 25.11.81 pcfhiittihg an amendment sought bjt,the.plaintiff,;to his plaint. The plaint has been filed to institute action for the
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ejectment of his tenant (defendant) from the premises describedtherein on the ground of the premises being reasonably required byhim for occupation as a residence for himself and members of hisfamily. This ground is founded yn s.22(2)(b) of the Rent RestrictionAct No. 7 of 1072 (Act). It is dated 20th February 1980. IJeforcthe action was ripe for trial the Act was amended in many of itsprovisions by the Rent (Amendment) Act No. 55 of 1980 (AmendingAct) which became operative on 12th December 1980. The provisionin the Amending Act directly related to this appeal is s.21(l). Thisprovision empowers a plaintiff who has filed an action for ejectmentof his tenant from any premises under s.22(2)(b), as the plaintiff inthis appeal has done, if the action is pending, as this action is, toapply to amend the plaint if he seeks to rely on a new ground ofejectment specified in the new sub-section 22(2)(hb)(i)(ii) enacted inthe Amending Act. For completeness I will quote the new sub-scction22(2)(bb)(ii)
“(bb):- In case of premises let to a tenant whether before orafter the date of commencement of this Act and where thelandlord is the owner of not more than one residential premises.
(ii) the landlord of such premises has deposited prior to theinstitution of such action or proceedings a sum equivalent to5 years' rent with the Commissioner of National Housing forpayment to the tenant: or;"
The plaintiff then sought to rely on s.22(2)(bb) (ii) for the ejectmentof the tenant. Accordingly he applied to amend his plaint by insertingthree paragraphs with the averments necessary to entitle him to seekejectment on that new ground. He, however, sought by his motionfor amendment also to delete the existing paragraphs particularlyparagraph (3) of the plaint which specified the ground of ejectmentunder s.(22) (2)(b) of the principal Act on which he relied when heinstituted the action. Notice was given of the application for amendmentto the defendant and an inquiry followed. Counsel for the defendantobjected to the deletion of the existing paragraphs, particularlyparagraph (3) while not objecting to the insertion of the new paragraphif it was adduced as an addition but not otherwise. His contentioninter alia was that the deletion of the existing paragraph (3) basedon s.22(2)(b) and the substitution of the paragraphs now sought tobe introduced would have the effect of introducing an altogethernew plaint under cover of an amended plaint. He added that the
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amendment introduced a new cause of action comprising a newground and if the existing cause of action based as it may have beenon s.22(2)(b) is deleted, the trial will be on the new cause of actiononly whereas he has already by his answer pleaded that the plaintiffcannot maintain his action as it stood and that it should be dismissed.After hearing Counsel, the trial Judge permitted the amendment bya brief order which stated that the objections to the amendment arenot adequate enough to refuse the amendment sought. That was forintroducing the new ground and deleting the existing ground. Hepermitted the amendment. It is from this order that this appeal hasbeen taken with leave obtained.
The submission is urged for the appellant that the tenants beingprotected as they are by the Rent Act against eviction a plaintiffcan seek ejectment of the tenant only under a limited jurisdictionvested in a Court and that jurisdiction is spelt out in s.22(2) (b) ofthe. Rent Act as far as this plaint is concerned. The plaintiff havinginvoked that limited jurisdiction when this action was institutcd^wi.ththe paragraph. (3) in the plaint as the ground on which it is foundedcannot, by deleting that paragraph and substituting another retainthe jurisdiction which this plaint attracted initially. If the paragraphis deleted it is argued, the ground on which the plaintiff was entitledto institute action is eliminated. 'Hie plaintiff may be entitled toinstitute a fresh action on the facts envisaged in the amendedprovisions of the amending Act but the original action cannot besaid to have been, instituted on this new ground. So the argumentgoes. It is also contended that though s.93 of the Civil ProcedureCode which regulates amendments to pleadings and processes in anaction vests the Court with a discretion to permit or disallow aproposed amendment, this discretion can never be exercised in favourof permitting an amendment which does not relate to allegations offact necessary to prove the plaintiff's original claim, but introducesa new ground of jurisdiction. In short, what is said is that tine canamend the super structure but cannot replace the foundation.
Provisions of the Code relating to amendments are containedparticularly in s.93 and s.46. The provision in s.93 merely grants theCourt a wide discretion and the limitation to this discretion arc tobe gathered from judgments. To quote Tambiah. J in Senanayakcv. Anthonisz 69 – N.L.R. 227,
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“ The principles governing the amendment of a plaint havebeen clearly set out by my Lord the Chief Justice who, afteran exhaustive review of all the authorities laid down thefollowing propositions (vide Daryanani v. Eastern Silk EmporiumLtd – 64 N.L.R. 529 at 531 ).
“Two main rules which have emerged from the decided casesare:-
the amendment should be allowed, if it is" necessary forthe purpose of raising the real question between the parties;and,
an amendment which works an injustice to the other side
should not be allowed.”
The first rule is based on the principle that a multiciplicity ofactions should be avoided. The second rule is based on the groundthat where injustice could be caused to the other side by allowingan amendment it should be rcfused.lt is also a cardinal rule that anamendment should not be allowed if the effect of it would be toconvert an action of one character into an action of inconsistentcharacter. This principle is deduciblc not only from the proviso tos.46 of the Civil Procedure Code but is also axiomatic in view ofthe fact that the function of the pleadings is to clarify the issues sothat the real issues between the parties may be tried and not allowparties to sidetrack the" real issues by bringing a new action whichis inconsistent with the one that is already being brought .This principleis being recognised in . a number of cases in Ceylon (vide ThirumalaV. Kulandavelu-hf) N.L.R. 285, Daryanani v. Eastern Silk Emporium(Supra), Wijewardena v. Lenora 60 N.L.R. 457.)=■
Assuming then, but without deciding, that the new ground sought ■to be introduced is so inconsistent with the existing ground ofejectment as to amount to a new action, the Court would disallowthe new ground sought to be introduced on the principles enunciatedin the judgments above cited. But as I have said, the defendant is ,not objecting to the new paragraphs going in. His objection is to.the deletion of the original paragraphs. He wants all paragraphs,that is the existing and the new to stand together. He cannot objectto the new paragraphs going in because of the amending Act – s.21.To him it is a virtue of necessity. He would rather have the new
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paragraphs but.But he cannot do it because of s.2T.: of the amendingAct.So hfe": strives "to retain the existing paragraphs"1 to" stymie theplaintiff. Th'c plaihftff argues that he is erititlcd to’ have "the originalparagraph (3) omitted and that the surgery reqiiiVcd for this transplantingoperation is provided by s.21 of the amending Act. He says he docsnot seek his amendment under s.93 of the Code. Let nic’ thereforeget it out and analyse and examine it:-
“21. (1) — Where any action or proceedings instituted in aiiycourt for the ejectment of a tenant from any premises undersubsection (2)(b) of section 22 of the principal enactment, isor are pending on the day immediately" preceding the date ofcommencement of this Act. the landlord of such premises may.where he seeks to rely on any new ground specified ill subsection(2) (bb) of section 22 of the principal enactment, makeapplication to the court to amend"ihe plaint and the courtshall, notwithstanding the provisions of any other law. permitthe landlord "to amend the plaint ih such action or proceedingsand make such other orders as may be necessary, where thecourt is satisfied that the landlord has deposited with theCommissioner of National Housing a sum equivalent to "fiveyears' rent of such premises to"‘be payable to the tenant thereof,and proceed to hear and determine the action or proceedingson the new ground adduced, and iiiake order m accordancewith section 22 of the principal enactment."
Applying the provisions of this section tiv the facts of this case:-
the action has been instituted lor the ejectment of thedefendant-tenant undfcr•».'-,22 (2)(b) of the Rent Act -Para 3 of the original plaint.
the action is pending, '
the plaintiff is seeking to relv on s. 22 (2)(bb) (ii) of theAct as amended u para '<3: of the motion for amendmentdates 26th June 1981.
Section 21 then goes on to enact that (a) where the plaintiff relyingon s. 22(2)(bb) makes application for amendment of the plaint (theplaintiff is doing that) the Court shall permit such amendmentnotwithstanding the provisions qf any other law, (b) and the Courtshall make such other orders as may be necessary. To pause here,beyond permitting the amendment, what other orders are necessaryto be made? The meaning’of ‘necessary' is ‘unavoidable*. – See
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Shorter Oxford Dictionary. What are the unavoidable other ordersthat the Court has to make after permitting the amendment? In myview it is an order or orders to eliminate the ground under s. 22(2) (b) which cannot coexist with the new ground as it brings in atotally different -and inconsistent set of facts. It is in fact a newaction which the Amending Act permits. This is made still moreclear when one continues to read the section, for, further down inthe section, is the requirement “that where the Court is satisfied
proceed to hear and determine the action on the new
ground adduced." So that even if nothing is deleted as a result ofthe amendment, the Court cannot hark back to the original avermentsin the plaint for what the Court can hear to determine the actionis only matters relating to the new ground adduced. The action thenis transformed into one resting on the new ground. Since the Courtcannot determine the action on anything but the new ground itbecomes unavoidable that the original plaint must be replaced inparagraphs insofar as they are a hindrance to the determination ofthe action on the new ground.
For these reasons we are of the view that this appeal should bedismissed. The appeal is accordingly dismissed with costs.
L.H. DE ALWIS J. – I agree.
I
Appeal dismissed