054-SLLR-SLLR-2005-V-2-THENUWARA-V-SIOM-NONA-AND-OTHERS.pdf
Thenuwara vs. Simo Nona and Others. (Wijeyaratne, J.)
309
CA
THENUWARAVSSIMO NONA AND OTHERSCOURT OF APPEAL,
WIJAYARATNE.J,
SRI SKANDARAJAH. J,
CALA 501/2002,
D C. COLOMBO 19129/L,
FEBRUARY 07,14, 2005.
Civil Procedure Code – S. 93 (2) Amendment of Pleadings – Delay – Fraud -New S. 93 (2) Material Change in scope of action-Different and inconsistentcharacter.
The 1st to 3rd plaintiffs-respondents instituted action against the defendant-appellant on the basis that the defendant-appellant who is the widow of the 1stplaintiff’s son was a licensee of the premises and she wrongfully continues inoccupation after termination of the licence. The defendant-appellant in heranswer dated 08.11.2002 claimed compensation for bona fide improvementand jus retentionis pending payment of same.
On the 2nd date of trial, the defendant-appellant moved to amend the answerby pleading alleged fraud in the matter of the deed said to be executed in favourof the 1st plaintiff by her deceased husband who was the father in law of thedefendant-appellant. The position of the defendant-appellant was that shecame to know of the fraud on 13.09.2000. The plaintiff objected to the amend-ment, which objection was upheld by the District Judge.
HELD:
Amendment of the answer based on facts or grounds known to thedefendant-appellant prior to the filing of the original answer cannotin law be allowed.
The defendant-appellant has proposed in the amended answer toplead a promise by the 2nd plaintiff to transfer the premises in suitto her by way of dowry which position she has not taken up in heroriginal answer, and she cannot be reasonably expected to saythat such a promise was given after her having filed the originalanswer in this case.
The defendant-appellant through amendment of her answer, at-tempts to convert the character of her answer to a different andinconsistent character.
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(2005) 2 Sri L. R.
Such amendment cannot be allowed by Court. The Court using itsdiscretion judicially cannot hold that neither the alleged complaintof fraud known to her from the year 2000 nor the so called promiseto transfer the premises in suit as dowry were matters that came toher knowledge only after her filing the original answer.
APPLICATION for leave to appeal from an order of the District Court of Co-lombo.
Cases referred to
Audiappu vs. Indian Overseas Bank 1995 2 Sri LR 131.
Hatton National Bank Ltd. /s, Whittal Baustead Ltd., 1978-792 Sri LR 257.
Mackinon Mackenzie and Co. Ceylon Lts., vs. Grindlays BankLtd. – 1986 2 Sri LR 272.
Senanayake vs. Anthoniusze – 69 NLR 225.
Kuvera de Zoysa for defendant-appellant.
Saman Dharmapala for 1st to 3rd plaintiff-respondents.
Cur. adv. vult
July 4, 2005.
WIJEYARATNE, J.The 1 st to 3rd plaintiff-respondents instituted the relevant action againstthe defendant-appellant seeking declaration of title to the premises in suit,for ejectment of the defendant-appellant and for recoven/ of damages in alump sum of Rs. 700,000 and continuing damages in a sum of Rs. 200/-per day. The action was instituted on the basis that the defendant-appel-lant who is the widow of the 1st plaintiff’s son was a licensee of the pre-mises and she wrongfully continues in occupation after termination of herlicense. The defendant-appellant in her answer claimed compensation for
CAThenuwara vs. Simo Nona and Others. (Wijeyaratne, J.)31 i
bona fide improvements in a sum of Rs. 6,300,000/- and jus retentionispending payment of the same. The 1st-3rd plaintiff-respondents in theirreplication denied liability to pay any compensation and reiterating theirstance of the plaint, joined issue with the defendant-appellant.
The trial on the first day was postponed and on the 2nd date fixed fortrial, the defendant-appellant moved to amend her answer by pleadingalleged fraud in the matter of the deed said to be executed in favour of the1 st plaintiff by her deceased husband Daniel who was the father-in-law ofthe defendant-appellant. The plaintiffs objected to the amendment beingallowed on grounds of laches as provided in section 93(2) of the CivilProcedure Code. The defendant-appellant argued that she came to knowof the fraud on a complaint by a son of the 1 st plaintiff herself on 13.09.2000and hence there was no delay on her part. It is to be noted that the originalanswer of the defendant-appellant is dated 08.11.2002. The defendant-appellants’ own statement indicated that much before her original answerwas filed she was aware of this allegation of fraud levelled against the 1 stplaintiff-respondent. Then she cannot be heard to say that this is newmaterial she became aware of after the filing of her answer. There is nodelay for the defendant-appellant to explain to the satisfaction of the Court.
In the case of Audiappu vs. Indian Overseas Bank (1) it was held.
“ the amendments contemplated by section 93(2) are thosethat are necessitated due to unforeseen circumstances, and not
those that could have been foreseen with reasonable diligence.”
Similar view was taken in the case of Charles vs. Samarasinghe to theeffect that amendment of the plaint arose unexpectedly and as the amend-ment did not cause prejudice to the defendant, it should be allowed.
In view of the above decisions, the amendment of the answer based onfacts or grounds known to the defendant-appellant prior to the filing of theoriginal answer cannot in law be allowed.
However the learned counsel for the defendant-appellant relied on thedecisions of Hatton National Bank Ltd vs. Whittal Bausted Ltd(2) andMackinon Makenzie and Co. Ceylon Ltd vs. Grindlays Bank Ltd (3)
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and submits the amendment is necessary in order to effectually adjudi-cate on the dispute between "he parties.
Perusal of the original answer and the proposed amendment of thesame, discloses the defendant-appellants prayer for the same relief with-out any change. However, the defendant-appellant has proposed in para-graphs 6.11 of the amended answer to plead a promise by the 2nd plaintiffto transfer the premises in suit to her by way of down/, which position shehas not taken up in her original answer; and she cannot be reasonablyexpected to say that such a promise was given after her having filed theoriginal answer in this case. The defendant-appellant through amendmentof her answer, attempt to convert the character of her answer to a differentand inconsistent character.
Senanayake vs. Anthoniusze.(i) the rule is that such amendment shouldnot be allowed by Court.
Although the learned District Judge has not adverted to such rules setup by decisions of the Supreme Court and Court of Appeal, what thelearned District Judge considered was whether the defendant appellanthas explained the delay on her part in giving new material in favour ofamendment of answer to the satisfaction of the Court. The Court using itsdiscretion judiciously cannot hold that neither the alleged complaint offraud was known to her from the year 2000 nor the so called promise totransfer the premises in suit as dowry were matters that came to defendant'sknowledge only after her filing the original answer. The learned DistrictJudge has correct and duly considered the relevant matters in terms of theprovisions of section 93 (2) of the Civil Procedure Code.
I see no reason to interfere with the same.
The application is dismissed with costs fixed at Rs. 5,000/=
Sriskandarajah, j. I agree.Application dismissed.