An English translation of this passage is given in schedule ‘A’hereto with the words complained of underlined.
“ 4. The said words mean that the plaintiff being an examiner ofAyurvedic Students dishonourably, dishonestly and corruptly ‘ failed ’that is to say deliberately deprived Ayurvedic Physician Amerasingheof the qualifying marks in his examination owing to personal maliceand hatred.”
The defendant states in paragraph 4 of her answer filed on 26th July1957—
“ 4. The defendant further states that on the occasion referred toshe did address a meeting of about 200 persons and as a Minister ofState dealt with some of the questions raised therein.”
BASNAYAKE, C.J.—Wijewardene v. Lenora
The case was fixed for trial on 21st January 1958. On that daycounsel on both sides stated that the case was a very long one and thatconsecutive days should be fixed for the trial. On 22nd January 1958the Court refixed the case for trial on 1st, 2nd, 3rd, 4th and 5thSeptember. On 24th March 1958 the Proctor for the plaintiff filed thefollowing motion:—
“ I move to amend the plaint as follows :—
1. To delete paragraph 3 and insert in its place the followingparagraph:—■
‘ 3. On 17th February 1957 at a Public meeting held at Kukul-nape in Mirigama the defendant falsely and maliciously spoke andpublished of the plaintiff to G. Jakolis of Kukulnape, Pallawalla,(2) S. A. Perera of Kuligedera, Kotadeniyawa, (3) S. M. A. D. Pereraof No. 15 Campbell Place, Colombo, and (4) G. William Ekanayakeof Aluthepola, Minuwangoda, and divers other persons whose namesare at present unknown to the Plaintiff the words following in theSinghalese language that is to say—

An English Translation of this passage is given in Schedule ‘A*hereto with the words complained of underlined.’
2. To delete paragraph 4 and insert in its place the followingparagraph:—
‘ 4. By the said words the defendant meant and was understoodto mean that the Plaintiff being an examiner of Ayurvedic Studentsdishonourably, dishonestly and corruptly ‘failed’ that is to saydeliberately deprived Ayurvedic Physician Amarasinghe of thequalifying marks in his examination owing to personal malice andhatred ”
The Court thereupon noticed the defendant’s proctors for 9th May.On 9th April 1958 the plaintiff filed the following further motion :—
“ With reference to the order of Court dated 24th March 1958 toissue notice on the defendant for 9th May 1958 I beg to submit thatthe defendant’s Proctors have already taken notice of the amendmentand that they have made an endorsement that they object. In thecircumstances I move that the Court be pleased to order the defendant’sProctors to file their objection, if any, on 9th May 1958. I shallinform the Defendant’s Proctors after the order is made.”
On this application the Court made order “ Mention on 9th May 1958with notice to the defendant’s Proctors ” and vacated the order issuing
BASNAYAKE, C.J.— Wijewardene v. Lenora
notice of the application for the amendment of the plaint, as it appearedfrom the motion of 9th April that they had already received notice andintended to oppose the application to amend the plaint. On 9th Maycounsel for the respective parties appeared and counsel for the defendantstated that he objected to the application. The hearing of the objectionwas thereupon fixed for 12th June 1958. On 27th May 1958 the plain-tiff’s Proctor filed a third motion in which he moved to add to theproposed amended paragraph 3 of the plaint the name of P. Rajapakse.The inquiry commenced on 12th June and was adjourned for 17th and18th June. It was concluded on the latter date.
The learned Judge delivered his order on 9th July 1958 allowing theapplication and declaring the plaintiff entitled to the costs of the hearingand ordering him to pay to the defendant the costs of the amendment ofthe answer in case it became necessary to amend it in consequence of theamendment of the plaint, and fixed 24th July 1958 as the date for suchamendment. But up to the time of the hearing of this appeal theanswer has not been amended.
Being dissatisfied with the order of the learned District Judge thedefendant appealed therefrom on 18th July 1958 and on 21st July madean application to the District Judge that as she had appealed against theorder of the Court dated 9th July 1958 it would not be in the interests ofthe parties concerned to proceed to trial until the appeal is decided andmoved that the case be taken off the trial roll. On the memorandum inwriting of the motion itself the plaintiff’s Proctor stated that he objectedto the application. On 24th July the defendant’s application washeard and on 28th July 1958 the learned Judge made order refusing it.There has been no appeal from that order. On 31st July 1958 thedefendant filed a petition in this Court in which she invited this Court—
to revise the order of the District Judge of 9th July 1958, and
to direct a stay of proceedings pending the hearing and determina-
tion of the appeal filed on 18th July.
When that application came on for hearing we ordered notice on therespondent for 25th August and directed that the appeal from the orderof 9th July 1958 be listed on the same day.
The contention of counsel for the appellant is that the learned DistrictJudge was wrong in law in making the amendments set out in the plain-tiff’s application. The argument before the District Judge at thehearing of the application for amendment appears to have proceeded onthe basis that the plaintiff would in law be precluded from calling aswitnesses the persons named in the amended paragraph 3 of the plaintand proving that they heard the alleged defamatory words unless theirnames were stated in the plaint even though their names appeared in thelist of witnesses filed by the plaintiff on 6th January 1958, notice ofwhich the defendant had received. It appears to have been assumedthat the English law is the law of Ceylon in this respect. I am unable tofind any ground for that assumption. Nor has learned counsel satisfied
BASNAYAKE, C.J.—Wijewardene v. Lenora
me that the English law is applicable in Ceylon. Learned counsel wasunable to refer us to any provision of the Civil Procedure Code or theEvidence Ordinance or to any decision of this Court which supportedhis contention that witnesses whose names are not mentioned in theplaint cannot be called to prove defamatory statements made in theirhearing. Learned counsel for the respondent confessed that he wasunaware of any such law.
Learned counsel for the appellant cited to us the following passagefrom page 304 of The Law of Defamation in South Africa by ManfredNathan (1933)—
“ In slander, the plaintiff, if he relies on publication to particularpersons, must plead the names of all such persons as are known to mm.”
The above statement is based on the case of PiUay v. Naidoo 1. l'twould appear from the judgment in that case that in South Africa thereis no such provision as section 121 of our Civil Procedure Code whichmakes it obligatory on the plaintiff to file a list of witnesses within areasonable time before the trial with notice to the opposite side. Underour Code no witness whose name is not on the list of witnesses can becalled on behalf of a party except with the leave of the Court and that inspecial circumstances only (s. 175). Section 40 of the Code prescribesthe requisites of a plaint. That section does not prescribe a special rulein the case of a plaint in an action for defamation. I am unable to seeany basis on which the South African rule of pleading can be introducedinto Ceylon. The rules of pleadings are prescribed by the Civil Pro-cedure Code and I do not think it is open to us to add to those rules byjudicial authority except in the circumstances provided in section 4.
The learned District Judge has amended the plaint on the applicationof the plaintiff in the exercise of the power vested in him by section 93of the Civil Procedure Code which reads—
“ At any hearing of the action, or any time in the presence of, orafter reasonable notice to, all the parties to the action before finaljudgment, the court shall have full power of amending in its dis-cretion, and upon such terms as to costs and postponement of day forfiling answer or replication, or for hearing of cause, or otherwise, as itmay think fit, all pleadings and processes in the action, by way ofaddition, or of alteration, or of omission. And the amendments ofadditions shall be clearly written on the face of the pleading or processaffected by the order; or if this cannot conveniently be done, a fairdraft of the document as altered shall be appended to the documentintended to be amended, and every such amendment or alterationshall be initialled by the Judge.”
This section confers on the Court a wide discretion to amend allpleadings. The words “ as it may think fit ” and “ it thinks fit ” in thesection do not enable the Court to do what it chooses. Those words
11916 W. L. D. 151.
2*J. N.B 2828(7/59)
BASNAYAKE, O.J.—Wijewardene v. Lenora
create a discretionary power which must be exercised according tothe principles applicable to the exercise of such a power (Roberts v.HopwoodI).
Except in a case where the plaint is returned to the plaintiff for amend-ment under section 46 of the Code it is the Court alone that can amend aplaint once it is filed and not the plaintiff. The motion filed by theplaintiff’s Proctor does not show that that fact was appreciated, for hismotion reads “ I move to amend the plaint as follows The powergiven to the Court by section 93 may be exercised ex mero motu or uponthe application of one of the parties. It would be unsafe to lay downany rules as the limits of the exercise of the discretion vested in theJudge by that section. Nevertheless pronouncements of this Court andof the Superior Courts in England afford some guidance in its exercise.It has been statedbythis Court (Seneviratne v. Candappa2), quotingwithapproval the observations of Brett M. It. in Clarapede v. CommercialUnion Association 8, that amendment should be allowed if it can be madewithout injustice to the other side “ however negligent or careless mayhave been the first omission, and however late the proposed amendment”.In the later decision of Cassim Lebbe v. Natchiya et al.i, Shaw J. stated—
“ The general rule with regard to amendments of pleadings whichhas been laid down by this Court in previous cases is that an amend-ment which is bone fide desired should be allowed at any period of theproceedings, if it can be allowed without injustice to the other side,and in most cases conditions as to costs will ensure no prejudice beingcaused to the other side.”
In the English case of Be Trufort; Trafford v. Blanc s, cited by learnedcounsel for the appellant, Kay J. cites an observation of Bramwell L. J.in Tildcsley v. Harper 6 wherein he states—
“ My practice has always been to give leave to amend, unless I amsatisfied that the party applying was acting mala fide, or that by hisblunder he had done some injury to his opponent which could notbe compensated for by costs or otherwise.”
The recent English case of Clear v. Clear7 also contains some usefulobservations of Hodson L. J. on this topic—
“ The mere fact that delay would be caused by serving him is not ofitself, in my judgment, a sufficient ground for not granting an ad-journment in order that an amendment may be made and the necessarysteps taken. On the other hand, I am not prepared to say that inevery case where the parties come to trial, one knowing nothing of thecircumstances in which the other side is asking for discretion, andfinding the evidence for the first time at the hearing, leave to amend
. 1 (1925) A. 0. 578 at 613.4 (1918) 21 N. L. B. 208.
• (1917) 20 N. L. R. 60 at 61.* 53 L. Times Reports (N. S.) 498.
*32 W. R. 263.* 39 L. T. Reps. N. 8. 552—10 Ch.Div. 393.
7 (1958).1 W. L. R. 467.
BASNAYAKE, C.J.—Wijewardene v. Lenora
must be given ex debito justitiae. It is quite true the courts have gonea long way in civil actions in saying that leave to amend will always begranted where injustice will not thereby be done, and where anyinjustice which is temporarily done can be remedied by costs, but itmust always be remembered that there is a discretion to be exercisedjudicially in this case, and in this matrimonial jurisdiction very oftenthe exercise of the discretion is peculiarly difficult. It would, I thinlybe wrong to say that, where a party had merely lain by and waited soto speak for the evidence to fall into his or her lap ai trial, theamendment must necessarily be given.”
An examination of the provisions of Chapter VII of the Civil ProcedureCode discloses that the power conferred by section 93 is subject to onelimitation. Section 46 (2) provides that before a plaint is allowed to befiled, the Court may refuse to entertain it for any of the reasons specifiedtherein and return it for amendment provided that no amendment shall beallowed which would have the effect of converting an action of one characterinto an action of another or inconsistent character. If before a plaint isallowed to be filed an amendment whioh would have the effeot of con-verting an action of one character into an action of another or incon-sistent character is not permitted, the power conferred on the Court bysection 93 for amending the plaint after it is filed cannot be greater. Itmust be read subject to the limitation that an amendment which has theeffect of converting an action of one character into an action of anotheror inconsistent character cannot be made thereunder. Apart from thatlimitation the discretion vested in the trial Judge by section 93 isunrestricted and should not be fettered by judicial Interpretation.Unrestricted though it be, it must be exercised according to the rules ofreason and justice, not according to private opinion; according to law,and not humour. Its exercise must be uninfluenced by irrelevantconsiderations, must not be arbitrary, vague, and fanciful, but legal andregular. And it must be exercised within the limit, to which an honestman competent to discharge his office ought to confine himself {Sharp v.Wakefield1).
The mode of approach of an appellate Court to an appeal against anexercise of discretion is regulated by well established principles. It isnot enough that the Judges composing the appellate Court considerthat, if they had been in the position of the trial Judge, they would havetaken a different course. It must appear that some error has been madein exercising the discretion. It must appear that the Judge has actedillegally, arbitrarily or upon a wrong principle of law or allowedextraneous or irrelevant considerations to guide or affect him, or thathe has mistaken the facts, or not taken into account some materialconsideration. Then oily can his determination be reviewed bythe appellate Court.
Now where such a wide discretion has been given to a subordinateCourt the appellate Court should be careful not to restrict it by laying
1 (1891) A. 0.173 at 17$.
B ASN AYAKE, C.J.—Wijewardene v. Lenora
down rules which the Legislature has not prescribed. In this connexionthe words of Swinfen Eady M. R. in Wickins v. Wickins quoted withapproval by Viscount Simon in Blunt v. Blunt2, bear repetition—
“ Where Parliament has invested the Court with a discretion whichhas to be exercised in an almost inexhaustible variety of delicate anddifficult circumstances, and where Parliament has not thought fit todefine or specify any cases or ©lasses of cases fit for its application, thisCourt ought not +© limit or restrict that discretion by laying down ruleswithin Triuch alone the discretion is to be exercised, or to place greaterletters upon the Judge of the Divorce Division than the Legislaturehas thought fit to impose,”
In the instant case I am satisfied that the learned Judge has notexceeded the powers given to him by section 93 and that he has properlyexercised the discretion vested in him by that section.
I shall now come to the second question for decision. Counsel for theappellant contended that she should not have been ordered to pay thecosts of the hearing of the application to amend the plaint, because suchan order amounts to making her to pay the costs occasioned by theomission of the plaintiff, and he maintained that the order for costs iscontrary to the provisions of section 93. That section gives the Courtfull power to amend in its discretion all pleadings and processes of Courtby way of addition, or of alteration, or of omission, as it may think fitupon such terms as to costs and postponement of day for filing answer orreplication, or hearing of cause, or otherwise, as it may think fit. Theterms are to be imposed upon the defaulter, i.e., the party seeking theamendment, only when an amendment is made. The object of con-ferring on the Court the power to impose terms is to enable it to com-pensate the innocent party in respect of costs already incurred and anyadditional expenditure which may be occasioned by the amendment.The power to order the costs of the hearing into an application to amendis not contained in section 93 for it does not empower the Court to castin costs the person who unsuccessfully moves the Court to amend hispleadings. The power to order the costs of the hearing into an applica-tion to amend where it is resisted by the opposing party is to be found insection 211 of the Code which reads—
“ The court shall have full power to give and apportion costs ofevery application and action in any manner it thinks fit, and the factthat the court has no jurisdiction to try the case is no bar to theexercise of such power :
Provided that if the court directs that the costs of any applicationor action shall not follow the event, the court shall state its reasonsin writing.”
In the instant case as the costs followed the event the learned Judgedid not give reasons for his order that the defendant should pay thecosts of the inquiry. In the order for costs the learned Judge has quite* (1918) P. 265 at 272.* (1943) A. C. 517 at p. 525.
BASNAYAKE, C.J.—-Wijewardene ». Lenora'465
rightly acting under section 211 ordered the defendant to pay the costsof the hearing while ordering the plaintiff under section 93 to bear the. costs of the amended answer, if any. His discretion as to costs has beenproperly exercised under both provisions of the Code.
There is one other matter which must be dealt with in this judgmentas it was strenuously argued at length though not finally pressed bylearned cotinsel who intimated to us in the course of the respondent’sreply that he was not pressing his case for a postponement of the trialand that he was ready to go on with it. He contended that the learnedJudge should have granted a postponement of the trial fixed for 1st—$thSeptember, and that as the learned Judge had not postponed thetrial he had not exercised the discretion vested in him by section 93.The application for amendment was made in March and heard in June.The learned Judge’s order was made on 9th July. No application wasmade to the learned Judge before or after 9th July for a postponementnor was there any material before him to show that the defendant wasunable to get ready for trial in the time between 9th July and 1stSeptember. No material was placed before him for the purpose ofsatisfying him that in consequence of the amendment made on 9th Julymore time was necessary for the defendant to prepare for the trial.Learned counsel relied on the following passage in his address to theJudge as containing an application to him for a postponement—
“ This application of the plaintiff must be refused. Whether it is
refused or not, all costs of the dates for which the case is fixed for trial
must be paid by the plaintiff. Costs always do not follow the event.
Court may give judgment to one party and give costs to the other.
The whole application of the plaintiff lacks bona fides.” I
I am unable to find therein any indication whatsoever of an applica-tion for a postponement. Learned counsel stressed that the fact thatthe learned Judge has not referred to the question of postponement inhis order indicated that he had not exercised his discretion in regard tothe matter. It is true that the learned Judge has not discussed in hisjudgment the reason for not imposing a term as to postponement of thetrial when making the amendment. Although it does not appear fromthe judgment or order of the trial Judge how he has reached the resultembodied in his order, upon the facts the order is not manifestlyunreasonable or plainly unjust. It is only where upon the facts the orderis manifestly unreasonable or plainly unjust that the appellate Courtmay infer that in some way there has been a failure to exercise thediscretion vested in the trial Judge. In such a case although the natureof the error is not manifest, the exercise of the power confided in theJudge may be reviewed on the ground that he has not exercised hisdiscretion, Lovell v. Lovell h In my opinion upon the facts of this casethere is no justification for inferring that the Judge did not exercise his.discretion when he refrained from imposing a term as to postponement
1 (I960) 81 Commonwealth Law Reports p. 818.
SINNETAMBY, J.—Wijewardme v. Lenora
of the trial when amending the plaint. If the defendant desired a post-ponement of the trial she should have made an application in thatbehalf. Section 80 of the Civil Procedure Code provides that after theday for the hearing and determination of the action is fixed the Courtmay subsequently on application made by either party, and after hearingboth parties, or after proof of notice of motion to the absent party,direct that the day for the hearing of any case shall be advanced ordeferred. No such application has been made at any time after January1958.
In this connexion learned counsel’s attention waa drawn to section.91 (1) of the Civil Procedure Code which reads—
“ Every application made to the court in the course of an actionincidental thereto, and not a step in the regular procedure, shall bomade by motion by the applicant in person or his advocate or proctor,and a memorandum in writing of such motion shall be at the sametime delivered to the Court.”
He submitted that it was the practice in the District Court of Colombofor counsel to apply for postponement of trials without a memorandumin writing as required by section 91 (1) being filed. Such a practice iscontrary to the provisions of sections 80 and 91 (1) of the Code andshould not in my view be continued. Counsel for the respondent pointedout in the course of his argument a further obstacle in the way of theappellant. She had not raised the point about the postponement in thepetition of appeal.
In regard to the costs of the application for revision I see no groundfor departing from the usual rule that costs should follow the event.
I have seen the judgment prepared by my Lord the Chief Justice andI agree with the order that he proposes to make. I should like, however,to make a few brief observations in regard to certain matters which itseems to me it is not necessary to decide to arrive at the conclusions wehave reached. In regard to these matters I find that I hold viewswhich, with all respect, are not in complete accord with those held bymy Lord the Chief Justice.
On the question of the power of the Court of Appeal to review an ordermade by a Court of first instance in the exercise of its discretion, I agreegenerally with the principles enunciated but I would add that where thetrial Court has expressed no views and given no reasons for making suchan order it is in my opinion within the province of the Court of Appeal tobring its independent judgment to bear on the facts and to make an.appropriate order which it is within the jurisdiction of the trial Court tomake but which it omitted to make. In the present case learned Counsel
SINNETAMBY, J.—Wijewardene v. Lenora
for the appellant submitted that he had made an application for thepostponement of the hearing in the event of the amendment beingallowed. The trial Judge has made no reference to it in his order whichmeans that the date originally fixed would stand. Learned Counselstated that when he made the application the learned Judge interposedwith the remark “ How do you know that I am going to allow theamendment?”. I see no reason to reject the statement made by learnedCounsel having regard to the somewhat unintelligible note of Counsel’saddress, which my Lord the Chief Justice has quoted in his judgmentand having regard also to the fact that Counsel’s statementwas not contradicted by the other side.
Learned Counsel for the appellant at the commencement of the hearingof the appeal strenuously urged that an order postponing the dates oftrial should be made by this Court and speaking for myself I wasdisposed to give it favourable consideration for reasons which it isunnecessary to recapitulate as it is now only of academic interest. On asubsequent date in view of certain submissions made by learned Counselfor the respondent, learned Counsel for the appellant withdrew hisapplication for a postponement and stated that he had advised hisclient to proceed with the trial on the dates fixed.
In regard to the scope of sections 80 and 91 of the Civil ProcedureCode I agree that where there is both the opportunity and the timeavailable an application for the postponement of the hearing shouldalways be made by motion but there are occasions when this cannot bedone and in such cases the cursus curiae, if I may speak from personalexperience, has been to permit an application to be made ore tenus.Such a situation, for instance, would arise if on a date of trial an issuenot covered by the pleadings is framed and accepted: then the partywho is thus taken by surprise has always been permitted to apply oretenus for a date. In any event I take the view that the provisions ofsection 91 of the Civil Procedure Code are only directory and notimperative. Failure to comply strictly with its terms does not oarrywith it the penalty of disentitling the Court to entertain an applicationor of invalidating all orders made in respect of it.
In regard to the question of whether the plaintiff without amendinghis plaint would have been entitled to call a witness not mentionedexpressly in the plaint as a person to whom publication of the defa-matory statement was made, I do not think it necessary to express anopinion. Both sides in the lower Court took the view that without theamendment such a witness could not be called and this view appears tohave found favour with the trial Judge also. The matter was not fullyargued before us in view of the opinion we held that irrespective of theanswer to that question the amendment should be allowed. I thereforerefrain from expressing any views on the matter.
Appeal dismissed.