WIJESINGHE v. KARUNADASA

017-SLLR-SLLR-1987-2-WIJESINGHE-v.-KARUNADASA.pdf


CA
Wijesinghe v. Karunadasa
179
WIJESINGHE
' v.
KARUNADASA
COURT OF APPEAL.
G. P. S. DE SILVA. J. (PRESIDENT. C. A.) AND GOONEWARDENE. J„
CA/LA 124/83 L.G..
D. C. NEGOMBO 2750/L.
MARCH 6. 11 AND 12, 1987.
Trust-^Unjust enrichment-Laesio enormis-Amendment-Ss. 46(2} and 93CPC-Delay-Carelessness.
An amendment sought formulating as two separate causes of action pleas of unjustenrichment and laesio enormis which had already been pleaded in a suit for declarationof a trust cannot be said to alter the fundamental character of the suit converting it intoan action of another and inconsistent character (s. 46(2) CPC). The proposedamendme'nts do no more than clarify, elucidate and amplify the concepts of unjustenrichment and laesio enormis which were already pleaded in the plaint.
Although the amendments were being sought two years after the original plaint wasfiled amendments sought bona fide will not be refused on the mere ground ofbelatedness or negligence or carelessness:
Cases referred to:
Senanayake v. Arithonisz. -f 1965) 69 NLR 225. 229
Punchimahatmaya Menike v. Ratnayake -18CLW18
Mackinnon Mackenzie & Co. v. Grindlays Bank Ltd., -[1986] 2 Sn LR 272
Sherman de Silva v. Mrs. de Silva – 77 NLR 275. 283
APPEAL with leave obtained from order of the District Judge of Negombo.
R K. W. Gunasekera with Ranjan Mendis and Miss M. Weerasooriya fordefendant-appellant
P. A. D. Samerasekera. P.C.. with' A. L. M. de Silva and K. Abayapala for plaintiffrespondent.
Cur. adv. vult.
180
Sri Lanka Law Reports
[1987] 2 Sri LR.
May 4, 1987
G. P. S. DE SILVA, J.
This is an appeal by the defendant-appellant with the leave of thiscourt first obtained, against the order of the District Judge dated11.11.83 allowing the application of the plaintiff-respondent toamend his plaint.
The plaintiff in his original plaint dated 28th October, 1980, soughta declaration that the defendant was holding the land and premisesconveyed to him by the plaintiff for a consideration of Rs. 5,000 ondeed No. 1273 dated 27th January 1978 in trust for the plaintiff. Hefurther averred: that he resides on this land which is reasonably worthRs. 50,000; that by a writing dated 27th January’1978 thedefendant promised and agreed to reconvey the land and premises tothe plaintiff on payment of the sum of Rs. 5,000 together with interestat 1 2 1 /2% per annum within 5 years of the execution of the deed,that the plaintiff and his family continued to reside and enjoy theproduce of the land after the execution of the .deed; that the plaintiffhas not conveyed to- the defendant his beneficial interest in theproperty; that despite several requests to reconvey the property uponpayment of the principal sum and interest, the defendant has failedand neglected to perform his obligation. In paragraph 1.1 of the plainthe expressly sought- a declaration that the land and premises in suitwere subject to a "trust" in favour of the plaintiff. There is, however,paragraph 10 of the original plaint which sets out averments which arematerially different from what is stated elsewhere in the plaint. Sincemuch of the argument before us turned on the contents of paragraph10,1 shall reproduce it verbatim:
“ (10) f ©d> o^otsJ ®dS<;0(3 «Sc» ftsSea giaxaaeKicO qcB&ad os> a»&c3d®fE»cto cftsk^SO ol®«6Q«3)dl raQgdOrf Sc© &Seferi fcoea o^mei $0® a©dd&iao SdSssdj f©o) o<;©b5 cptsndoO Oj®«Sg>rad{0 cpog o,Q3®Q 3*?©Seteri r-
(q) SaJSisdjsqo @o:>©a»ad 5®® tsxSitio ®ox3.
(qi) q&&@cal f®jsJ®d (3(3E>e5 ajEp) ft&a ®ax3."
CA ■Wijesinghe v. Karunadasa (G. P. S De Silva, J )181
(Without prejudice to the averments contained in the precedingparagraphs, the plaintiff further pleads that the defendant is bound toreconvey in the manner set out above the aforesaid land and premises
on the basis that the defendant has been unjustly enriched; (b) onthe law of laesio enormis).
In December 1982 the plaintiff moved to amend his plaint and thedefendant took objection to it. The principal amendments were theaddition of what were described in the proposed amended plaint astwo 'alternative causes of action". Thus paragraph 10 of the originalplaint was deleted and the first alternative cause of action waspleaded in the following terms
* Sts<jda> tag Afttstoel Qcososi r-
•»
10. OsKjSoO Ot®«8<3eBdf graxa cod S3oJ®b5 fmra a<;s>e$ (fora (273 oco.Qd» 1978 dcoEoS ©o 27 ®OS <;d«6 SdgsQoi S (ft dad &&®oOcwsod od® qQ&a ©[Ssdo S<S«0®d oS Sd«6c3 ra©se»d 6® ®<OiS d®ffldg®dtSc3<5 ackjoa s®d ®(;aa«6c3raO <j«» OjOsad OSraj &es>
qSi&Scs} f®eri®d (Laesio enormis) &&oo0®d 6® ®dgO <j®c»oe ra$ eoi(9SOa.'
(The plaintiff pleads in the alternative that if it is decided that on deedNo. 1273 of 27.1.78 there was in law an outright transfer, then onthe principle of laesio enormis the aforesaid deed could be set asidebecause the property was worth much more than twice the sum ofRs. 5,000 on the date of the execution of the said deed).
The next major amendment was the addition of a new paragraph,namely paragraph 13, which sets out the second alternative cause ofaction
' Cogda tag ft®dad ©oxxad
13. . ®ra*d ®£w>d $a>&oqcoei radj«(j Gxx> <£>& (fora 1273 <;d«S
®dgO ®ra fora & s{o@6& od® (fci&a.OdftradtO OjGjdfaend do Od&radjcfgeg ®co scosaaod 0®d Od®do. ’
(In any event, for the reasons stated in the preceding paragraphs if onthe aforesaid deed No. 1273 the defendant becomes entitledabsolutely to the said property then the defendant would be
182
Sri Lanka Law Reports
[1987] 2 Sri L.R
The principal objection to- these amendments urged by Mr.Gunasekera, counsel for the defendant-appellant, was that the actionas originally constituted has now been converted to "an action ofanother and inconsistent character" (see proviso to section 46(2) ofthe Civil Procedure Code). In short his contention was that theproposed amendments by way of two alternative causes of actionbased on the principle of laesio enormis and the doctrine of unjustenrichment have changed the foundation of the action. Counsel'sargument was that the cause of action pleaded in the original plaintwas on the footing of an obligation in the nature of a trust which isfundamentally different in character from the two new alternativecauses of action sought to be introduced by way of an amendment.
Mr. Gunasekera is undoubtedly correct in his submission that anamendment which alters the fundamental character of the suit is notpermissible (Senanayake v. Anthonisz, (1)). The question then is. whether the proposed .amendments seek to effect such a change inthe character of the action. It is here that the averments in paragraph10 of the original plaint set out above become very relevant andimportant. In that paragraph there is a specific reference to "unjustenrichment" and "laesio enormis" as the basis upon which the plaintiffseeks the relief prayed for, namely the reconveyance of the property tohim by the defendant. However, it is equally clear that there was noproper and precise formulation of the causes of action based on thedoctrine of unjust enrichment and the principle of laesio enormis. Andit seems to me that the proposed amendments do no more thanclarify, elucidate and amplify the concepts of unjust enrichment andlaesio enormis which have already found a place in paragraph 10 ofthe original plaint. Indeed the plaintiff could well have raised issues onthe basis of unjust enrichment and laesio enormis on the originalplaint. In my opinion, the proposed amendments do not alter thesubstance or foundation of the suit. The amendments are intended tospell out and elucidate the concepts of unjust enrichment and laesioenormis averred in paragraph 10 of the original plaint. I therefore find^«elf unable to agree with Mr. Guansekera's submission that theproposed amendments alter the fundamental character of the suit.
CAWijesinghe v. Karunadasa (G. P. S. De Silva. J.)183
Our courts have always been liberal in permitting amendments ofthe kind sought in the instant case. Soertsz J. in PunchimahatmayaMenike v. Ratnayake (2) observed:-
an amendment bona fide desired in order to elucidate
•the cases the parties wish to put forward should be made eventhough the parties had been negligent or careless in stating theircases”.
Again, the learned Chief Justice in Mackinnon Mackenzie & Co., v.Grindlays Bank Ltd. (3) expressed himself thus:-
The liberal principles which guide the exercise of discretion inallowing amendments have been laid down in decisions of the Privy
Council and of the Supreme CourtAmendments which do
not alter the fundamental character of the action or the foundation
on which the suit is based are readily grantedProvisions
for the amendment of pleadings are intended for promoting theends of justice and not for defeating them The object of rules ofprocedure is to decide the rights of the parties and not to punishthem for their mistakes or shortcomings".
Mr. Gunasekera next contended that the doctrine of unjustenrichment is totally inapplicable to the present case. Counselemphasised that the plea of unjust enrichment is hot available in acontractual situation and that it is altogether inconsistent with thecause of action founded on a "trust." The answer to this submissionhas been pithily put by Pathirana J. h Sherman de Silva and Co. v.Mrs. de Silva (4)
"The substantive rights of parties are not adjudicated by the court
at the stage of the amendment of the plaint The
amendment to the plaint has to be considered without reference tothe ultimate result of the case and quite apart from it".
Finally, Mr. Gunasekera urged that the amendment has been soughttwo years afrer the original p/aint was filed and should therefore nothave been flowed. It seems to me, however, that the mere fact thatthe application was made belatedly is not a ground for refusing it. Asobserved by the learned Chief Justice in Mackinnon Mackenzie & Co.V. Grindays Bank Ltd. (supra):
184Sri Lanka Law Reports[1987] 2 Sri L.R.
"However negligent or careless may have been the first omission,and however late the proposed amendment, the amendment maybe allowed if it can be made without injustice to the other side,” (atpage 279).-
The District Judge in a well-considered order has given valid andcogent reasons for permitting the amendments to the plaint. In my©pinion, he has correctly and properly exercised the discretion vestedin him in terms of section 93 of the Civil Procedure Code. I
I would accordingly affirm the order of the District Court and dismissthe appeal with costs fixed at Rs. 210.
GOONEWARDENA, J.-l agree.
AppeaJ dismissed.t