SUMANAWATHIE AND OTHERS vs ARIYARATNE

010-SLLR-SLLR-2005-V-2-SUMANAWATHIE-AND-OTHERS-vs-ARIYARATNE.pdf


CA Sumanawathie Karunaratne and Others vs Ariyaratne (Somawansa J) 47
SUMANAWATHIE KARUNARATNE AND OTHERSVSARIYARATNECOURT OF APPEALSOMAWANSA. J,
MS. EKANAYAKE. J.
CALA 380/2000
D. C. AVISSAWELLA 20258/L,
DECEMBER 3, 2004.
Civil Procedure Code – Section 146 – Section 146(2)- Amendment 9 of 1991-Section 93(2) – Must Issues be restricted to Pleadings?- Discretion of Court topermit fresh Issues after case has commenced? – Raising of Issues on a freshcause of action that had not been pleaded – Is it permissible?
HELD-
(i) The framing of Issues is not necessary restricted to the pleadings.
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Per Somawansa J.,
“No doubt it is a matter with the discretion of a Judge whether he willallow fresh issues to be formulated after the case has commenced,but he should do so when such cause appears to be in the interest ofJustice and it is certainly not a valid objection to such a course beingtaken that they do not arise on the pleadings.
(ii) The grievance of the Plaintiff Petitioner, was that the DefendantRespondent had encroached upon his land and prayed for ejectmentof the Defendant Respondent therefrom, but the superimpositionestablishes that the Defendant- Respondent had not encroached butit is the Plaintiff Petitioner who had encroached upon a portion of landowned by the Defendant Respondent.
(Hi) The Plaintiff by the fresh issues, is seeking to claim title to anotherportion of the land owned by the Defendant Respondent- in such aninstance the Issues if allowed would cause material prejudice to thedefendant Respondent.
(iv) No party can be allowed to make at the trial a case materially differentfrom that which he has placed on record and which his opponent isprepared to meet.
Application for Leave to Appeal from an order of the District Court of Avissawella.
Cases referred to :
Aymil Kareeza vs Jayasinghe – 1986 1 CALR 109
Liyanage vs Seneviratne – 1986 1 CALR 306
Bank of Ceylon vs Chelliahpillai – 64 NLR 25
Silva vs Obeysekara 24 NLR 97
Duraya vs Siripina – 1908 4 ACR 125
Fernando vs Soysa – (1899) 2 NLR 40
Attorney General vs Smith (1906) 8 NLR 229
Seneviratne vs Kandappa (1917) 20 NLR 60
Jayawickrema vs Amarasuriya – 1918 – NLR 289
Velupillai vs The Chairman, Urban District Council 39 NLR 464 at465
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Wickrematilake vs Marikkar e t al-2NLR9at12.
In Re Chenwell CH. D. 9506
Colombo Shipping Co. Ltd., vs Chirau Clothing (Pvt) Ltd., 1995 2 SriLR 9
W. M. R. Candappa vs Madirampillai Ponnambelampillai – SC 32/89CAM 19.03.1993 – DC 13964/L
P. A. D. Samarasekera, P..C., with Upali de Almeida for Plaintiff RespondentsGamini Marapona P. C., with Navin Marapona and Ms. Nishanthi Mendis forDefendant Respondents.
cur.adv.vult.
December 3, 2004, -Andrew Somawansa, J.
This application has been filed by the plaintiff – petitioner seeking tocanvas an order of the learned Additional District Judge of Avissawelladated 24.11.2000 marked X10 wherein the learned Additional District Judgerejected issue Nos. 2, 3, 4, 5, 7, 8, 10, 11 and 12 raised by the plaintiff-petitioner.
The main objection taken by the defendant – respondent to these issueswas that the plaintiff – petitioner was seeking to raise issues on a freshcause of action that had not been pleaded in the plaint and that he was ineffect trying to circumvent the effect of an earlier order of the learnedAdditional District Judge dated 20.06.2000 marked X6 wherein he hadrejected a replication filed by the petitioner. The plaintiff – petitioner beingaggrieved by the aforesaid order dated 24.11.2000 sought to have it setaside by his application dated 11.12.2000 made to the Court of Appeal.His application for leave to appeal was entertained and was taken up forinquiry on 12.02.2002. After oral submissions were concluded both counseltendered written submissions. The order was finally delivered on 12.11.2002wherein the Court observed that the application filed on behalf of thedeceased plaintiff- appellant did not include a specific prayer for the grantof leave to appeal from the order of the District Court and that the failure tocomply with this fundamental requirement precluded the Court of Appeal
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from considering the validity of the impugned order and therefore theapplication was dismissed in limine with costs.
The appellants were granted special leave to appeal from the order ofthe Court of Appeal on a question of law. The Supreme Court by its decisiondated 25.11.2003 allowed the appeal and the judgment of the Court ofAppeal was set aside. Directions were also given for another Bench tohear the application on its merits after permitting the appellant to amendthe prayer by adding the form of the relief claimed.
Accordingly when this application was taken up for hearing both partiesinformed Court that they have already tendered written submissions onthis matter and moved that order be made on the written submissionsalready tendered.
The relevant facts are the original plaintiff instituted the instant action inthe District Court of Avissawella seeking a declaration of title in respect ofland and premises depicted as lot 5C in Plan No. 1148/5 dated 26.12.1885prepared by Loganathan, Licensed Surveyor morefully described in thesecond schedule to the plaint containing an extent of 7.5 perches, ejectmentof the defendant- respondent and those under him therefrom. He alsoprayed for an enjoining order, interim and permanent injunction preventingthe defendant- respondent from carrying on any activity on the land. Theoriginal plaint averred that the defendant – respondent who is said to be thereputed owner of the land adjacent to the aforesaid land in suit and actingin violation of his rights and has encroached upon his land.
The defendant – respondent while denying the aforesaid averments deniedhaving encroached upon the plaintiff – petitioner’s land and claimed title tolot 06 in the aforesaid Plan No. 1148 in extent 5.25 Perches. In paragraph8 of the plaint the original plaintiff has admitted this fact.
The defendant – respondent upon a commission obtained from Courthad spa Plan No .151 dated 16.09.1997 prepared by M. D. P. JayalathKumara, Licensed Surveyor marked X4. On this plan lot 5C claimed bythe plaintiff – petitioner and lot 06 belonging to the defendant – respondentin Plan No. 1148 were superimposed. The superimposition shows that lot5C in planno. 1148 consist only of lot 1 in Plan no. 151 marked X and thatlots 2, 3, 4, 5, 6, and 7 in the said plan no. 151 fell within lot 06 in plan no.
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1148. Thus the superimposition establishes the fact that-the defendant -respondent had not encroached on the land claimed by the plaintiff petitionerbut that it was the plaintiff – petitioner who had in fact encroached on theland claimed by the defendant – respondent viz: lots 2, 3 and 4 of Plan No.151 marked X.
The defendant – respondent filed an amended answer seeking for aninterim injunction restraining the plaintiff – petitioner from building on theaforesaid encroached portions depicted as lots 2, 3 and 4 in Plan No. 151marked X4 and after due inquiry the said injunction-was granted againstthe plaintiff petitioner on 03.04.1998. Thereafter on 09.03.2000 the plaintiff- petitioner filed a replication but the defendant – respondent objected tothe same and the learned District Judge by his order dated 14.06.2000rejected the replication of the plaintiff- petitioner.
When issues were framed on 25.07^2000 on behalf of the plaintiffpetitioner issues based on Plan No. 151 marked X4 were raised both inrelation to the land described in the second schedule to the plaint andalso upon prescriptive possession. These issues were objected to on thebasis that they do not arise upon the plaint and that the said issues arebased upon the rejected replication. After submissions by both parties thelearned District Judge by his order dated 24.11.2000 rejected issues 2, 3,4, 5, 7, 8,10,11 and 12 objected to on behalf of the defendant – respondent.It is this order that the plaintiff – petitioner is seeking to canvas now.
It is submitted by the President's Counsel appearing for the plaintiff -petitioner that although the original plaintiff claimed rights into and uponthe allotment of land and premises morefully described in the secondschedule to the plaint yet the fact remains as shown in plan 151 markedX4 that he is in possession of lots 1 to 4 in the said Plan No. 151 until thedate of the plaint without any objection from any person whomsoever andmore particularly from the defendant – respondent. In the circumstanceshe submits that it is apt to consider Section 146 of the Civil ProcedureCode which deals with the framing of issues which reads as follows :
146. (1) "On the day fixed for the hearing of the action, or on any other dayto which the hearing is adjourned, if the parties are agreed as tothe question of fact or of law to'be decided between them, theymay state the same in the form of an issue and the court shallproceed to determine the same.”
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“If the parties., however, are not so agreed, the court shall, uponthe allegations made in the plaint, or in answer to interrogatoriesdelivered in the action, or upon the contents'of documentsproduced by either party, and after such examination of the partiesas may appear necessary, ascertain upon what materialpropositions of fact or of law the parties are at variance, and shallthereupon proceed to record the issues on which the right decisionof the case appears to the court to depend”.
He further submits thai it is manifest that:
“In the instant case Plan No. 151 and the Report annexed theretowould reveal, Lots 1 -4 are in possession of the original plaintiff. Themain question for consideration by the Original court was whetherthe original plaintiff is entitled to claim Lots 1-4 in the said Plan. Aperusal of the issues proposed on behalf of the original plaintiff showsthat they were framed with a view to ascertaining this position.”
In this respect he has cited a number of decisions to which I would referbriefly:
In the case of Aymil Kareeza vs. Jayasinghe<’> it was held :
“The framing of issues is not necessarily restricted by the pleadings.
Again in the case of Liyanagevs. Seneviratnei2) was held that issues
are not confined to matters specifically pleaded.
In the case of Bank of Ceylon Vs. Chelliahpillai<3) the rules was to theeffect that a case must be tried upon the issues on which the right decisionappears to the Court to depend and it is well settled that the framing ofsuch issues is not restricted by pleadings.
No express provision is made in our Code for salutary machinery of“summons for directions” as in England or for pre-trail proceedings as inAmerica. Nevertheless, and indeed for this very reason, Section 146imposes a special duty on the Judge himself to eliminate the element ofsurprise which could arise when precise nature of the dispute is not clarifiedbefore the evidence is recorded. The defendant's pleadings were defective,and the plaintiff (let it be conceded) has not been as vigilant as she shouldhave been to protect herself against surprise. But it was still the Judge’s
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duty to cdntrol the trial. He should have ordered the defence to furnish fullparticulars of its grounds for avoiding liability, and the issues for adjudicationshould only have been framed after the Judge has ascertained for himself“The proposition of fact or of law” upon which the parties were at variance.This was especially necessary where the administratix of an estate was. confronted with serious allegations against a person who had never hadan opportunity, when alive, to answer personally to the charges.
The discretion of the judge to permit fresh issues to be formulated afterthe case has commenced was judicially recognized in.the case of Silvavs. Obeysekera(4) at 107.
Counsel for the plaintiff raised the objections that these issues did notarise on the pleadings, and that defendant should have got his answeramended so as to raise these issues. On this objection being taken thelearned District Judge disallowed the issues. Here the learned Judge wascertainly led into a mistake. No doubt it is a matter with the discretion ofthe Judge whether he will allow fresh issues to be formulated after thecase has commenced, but he should do so when such a course appearsto be in the interest of justice, and it is certainly not a valid objection tosuch course being taken that they do not arise on the pleadings. SeeDuraya vs. Siripina<5), Fernandovs. Soyza, Attorney General v. Smith6Seneviratne vs. Kandappa(7) see also Jayawickrama vs. Amarasuriya(9).It would undoubtedly have been better had the learned judge added theseissues in such terms as he thought just.
The case of Velupillai vs. The Chairman, Urban District Council(10).A reference which has been used extensively to drive home the necessityto take a liberal rather than a narrow and constricted view of the role ofCourts. “It would appear as if the shortcomings of his legal adviser, thepeculiarities of law and procedure, and the congestion in the Courts haveall combined to deprive him of his cause of action and I for one refuse to bea party to such an outrage upon justice. This is a Court of Justice, it is notan Academy of Law”
Finally in the case of Wickrematileke vs. Marikaret al(1,) at 12.
“I commend to his attention, as to that of all other Judges of firstinstance, the observation of Jessel, M. R. in re Chenwell’2), “It is not theduty of the Judge to throw technical difficulties in the way of the
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administration of justice, but when he sees that he is prevented receivingmaterial or available evidence merely by reason of a technical objection,he ought to remove the technical objection out of the way upon properterms as to costs and otherwise”.
I have no reason to disagree with the Presidents Counsel that thejudgments quoted above and the passages referred to therein no doubtestablish in full measure that the District Court was not only empoweredbut also duty bound to raise issues that arose for consideration. However,
I am unable to agree with the learned President’s Counsel that thejudgments quoted above or the passages referred to would have any bearingon the issue at hand. For as submitted by the learned President’s Counselfor the defendant – respondent that there are other provisions of the CivilProcedure Code also relevant and applicable to the issue at hand.
The main objection taken by the learned President’s Counsel for thedefendant- respondent was that the plaintiff – petitioner was trying to raiseissues on a fresh cause of action that had not been pleaded in the plaintand that the plaintiff – appellant was in effect trying to circumvent the effectof an earlier order of the learned District Judge rejecting a replication filedby the plaintiff- petitioner. I think there is force in this argument. It is to benoted that the plaintiff – petitioner came to Court claiming a declaration oftitle and ejectment of the defendant – respondent from the land depictedas lot 5C in plan No. 1148 in extent 7.5 perches. The defendant – respondenthaving denied that he encroached upon the plaintiff – petitioner’s landclaimed title to lot 06 depicted in the aforesaid plan 1148 in extent 5.25perches. It is admitted in the plaint that the defendant respondent was infact the owner of the said lot 06. On a commissions issued by Court planNo. 151 marked X4 was prepared and on that plan lot 5C claimed by theplaintiff – petitioner and lot 06 belonging to the defendant – respondent asdepicted in plan no. 1148 was superimposed. As stated above thesuperimposition shows very clearly that lot 5C in plan 1148 consists onlyof lot 01 in plan no. 151 marked X4 and that lots 2, 3, 4, 5,6 in plan no. 151clearly fell within lot 06 in plan no. 1148. In short, superimpositionestablishes the fact that the defendant – respondent had not encroachedon the land claimed by the plaintiff- petitioner but that the plaintiff – petitionerhas in fact encroached upon a portion of the defendant- respondent’s landviz. lots 2, 3 and 4 in plan no. 151 marked X4. On a perusal of the record,it is to be see the defendant-respondent filed his amended answer wherein
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he moved Court for the issue of an interim injunction against the plaintiff-petitioner restraining him from building on the encroached portion depictedas lots 2, 3 and 4 in plan no. 151 marked X. After due inquiry by orderdated 03.04.1998 the Court granted an interim injunction as prayed for bythe defendant – respondent. Thereafter, no steps were taken by the plaintiff- petitioner to amend his pleadings so as to claim any portion of theencroachment depicted as lots 2, 3 and 4, in plan no. 151 which clearlyfell outside the land described in the schedule to the plaint. However, in areplication filed by the plaintiff – petitioner on 09.03.2000 sought to claimthe aforesaid lots 2, 3, and 4 in plan no. 151 marked X which was 1.24Perches in extent not claimed in the plaint. The defendant – respondentobjected to the said replication being accepted and the learned AdditionalDistrict Judge by his order dated 14.06.2000 upheld the objections andrejected the replication filed by the plaintiff- petitioner. The plaintiff – petitionerdid not seek to canvas the aforesaid order of the learned Additional DistrictJudge.
At the trial, the plaintiff- petitioner once again attempted to make aclaim to the aforesaid lots 2, 3 and 4 in plan no. 151 marked X4 by raisingissues 2, 3,4, 5,7, 8,10,11 and 12. The defendant – respondent objectedto the aforesaid issues on the basis that if these issues were permitted tostand it would permit the plaintiff – petitioner to set up a claim outside thescope of his original action in as much as the schedule Jo the plaintconfined itself to lot 5C in plan no. 1148 in extent 7.5 perches only. Itappears to me that the Additional District Judge by his order dated
quite correctly rejected the aforesaid issues for if the plaintiff -petitioner was allowed to raise the aforesaid issue, it would be allowinghim to raise issues on an unpleaded cause of action.
It is contended by the counsel for the defendant – respondent that priorto Act No. 09 of 1991 which repealed the original Section 93 of the CivilProcedure Code, Courts were very willing in most cases to allow issuesthat did not arise from the pleadings, for the reason that they had a verywide discretion to allow parties to subsequently amend the pleadings toincorporate those matters referred to in the issues and that all thesechanged in the light of the amendment of Section 93 of the Civil ProcedureCode. In support of this submission counsel has cited the case of ColomboShipping Co. Ltd., vs. Chirayu Clothing (pvt) Ltd.,('3) where it was held that“Amendments on or before the first date of trial can now be allowed only in
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a 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”. I would say this is soundreasoning.
As stated above, it was submitted by counsel for the plaintiff – petitionerthat it is manifest from Section 146(2) quoted above that the Court isentitled to determine issues not only upon the allegations in the plaint orin answer to interrogatories delivered in the action but also upon the contentsof documents produced by either party and after such examination of theparties as may appear necessary. The purpose of this section evidently isto ascertain upon what material propositions of fact or of law the partiesare at variance. The intention of the legislature was to empower the Courtto proceed to record the issues on which the right decision of the caseappears to the Court to depend. He further submits that in the instantcase as plan no. 151 and the report annexed thereto would reveal lots 1 to4 are in the possession of the original plaintiff. The main question forconsideration by the original Court was whether the original plaintiff isentitled to claim Lots 1 to 4 in the said plan A perusal of the issuesproposed on behalf of the original plaintiff shows that they were framedwith a view to ascertain this position. I am unable to agree with thissubmission for the reason that the case enunciated by a parly mustreasonably accord with its pleadings. No party can be allowed to make atthe trial a case materially different from that which he has placed on recordand which his opponent is prepared to meet as was held in 14/. M. R.Candappa vs. MadirampillaiPonnambalampillaiI have no hesitation toagree with the above principle laid down in that case by G. P. S. de Silva,C. J. and in any event, I am bound to follow the aforesaid principle.
Applying the aforesaid principle to the instant action, it is to be seenthe plaint confined itself to lot 5C in plan no. 1148 in extent 7.5 Perchesonly as described in the schedule to the plaint. The prayer for the plaintreads as follows.:

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Having prayed for the aforesaid relief can he also set up a claim inrespect of portion of the land owned by the defendant – respondent depictedas lot 06 in plan no. 1148 in respect of which there was no claim whatsoeverin the pleadings of the plaintiff – petitioner. In fact grievance of the plaintiff-petitioner was that the defendant – respondent had encroached upon hisland depicted as lot 5C in extent 7.5 perches and prayed for ejectment ofthe defendant – respondent therefrom, but the superimposition establishedotherwise that the defendant-respondent had not encroached on the plaintiff-petitioner’s land but it is the plaintiff-petitioner who had encroached upon aportion of the land owned by the defendant-respondent. It appears thatnow in addition to lot 5C in extent 7.5 perches the plaintiff respondent isseeking to claim title to 1.24 perches and of the Land owned by thedefendant respondent by means of raising the aforesaid issues 2, 3,4, 5,

The Second schedule to the plaint reads as follows :
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7,8,10,11 and 12 which claim is a new cause of action not pleaded in theplaint. In other words, having come to Court on the basis that the defendant-respondent has encroached on his land the plaintiff-petitioner now claimsthat he has encroached on the defendant-respondent's land and thus isattempting to set up a claim in respect of portions of the defendant -respondent’s land which if allowed I would say would cause materialprejudice to the defendant- respondent.
For the above reasons, I am of the view that the plaintiff -petitionercannot succeed in his application and accordingly this application willstand dismissed with costs fixed at Rs.10,000.
MS. EKANAYAKE, J — I agree.
Application dismissed.