LEBBE, Appellant, and SANDANAM, Respondent

079-NLR-NLR-V-64-LEBBE-Appellant-and-SANDANAM-Respondent.pdf


Lebbe v. Sandanam
461
N t
Present: Basnayake, C.J., Abeyesundere, J., and G. P. A. Silvn, J.
LEBBE, Appellant, and SANDANAM, RespondentS. C. 127159—D. C. Kandy, 7457/MR
Pleadings—Amendment of plaint—Scope of the power of Court'to amend plaint—
Distinction between amendment and alteration—Civi iProcedure Code, as. 21r
38, 46 (2), 93.
Sections 21, 28, 46 (2) and 93 of the Civil Procedure Code provide foramendment of the plaint in each of the cases specified in those sections.Except in section 93 the burden of making the amendment is imposed on theplaintiff. In section 93 the power to amend is conferred on the Court. TheCourt may not exercise that power before the hearing of the action or afterfinal judgment.
The power conferred on the Court by section 93 of the Civil Procedure Codeis the limited power of amendment. The word “amend” means,, in legal• procedure, the correction of an error. The Court’s power is therefore limitedto the correction of errors (of both commission and omission) in pleadingB.As the power is limited- to the correction of.errors, it follows that the Courtlias no power to make alterations—
‘ (a) which set up a new cose,. .
' (b) which have the effect of converting an action of one character into an■ action of another character,
; (c) which have the effect of taking the action out of the provisions governing"the limitation of actions in the Prescription Ordinance or any' otherenactment of law,
which have the effect of the addition of a new cause of action,
which have the effect of prejudicing the rights of the other side existing
at the date of the proposed amendment, and
(/) which have the effect of changing the substance or essence of the-action.
2*R 7830 (2/C3)
462
BASNAYAKE, C.J.—Lebbe v. Sandanam
When Booking the aid of English decisions for the solution of questions undersoction 93 of our Code, it is •well to examine the specific rule or provision of lawwhich the particular decision whose aid is invoked sooks to interpret orgive effect to. There aro material differences botweon section 93 and thecorresponding English Ordors and Rules.?
Plaintiff was a businessman who was ongaged in several kinds of businesssuch as dealing in estate lands, running cinemas, and lending money. On26th August 1958 ho instituted the present action in which he sought to rocovorfrom the defendant a sum of Rs. 15,000 which ho allogod he had loaned to thedofondant. Tho trial commenced on 2Sth July 1959, and on that day tho chiefissuo framed was whothor tho defendant borrowed from tho plaintiff and thoplaintiff lent and advancod to tho defendant tho sum ? Tho dofondant, whileadmitting tho roceipt of tho sum, denied that the money was a loan and claimod .that it was an advanco givon by tho plaintiff towards tho purchaso from thedofondant of an ostato callod Hyndford Estato, ^in respect of which transaction,an action filed by the plaintiff against the defendant was already ponding. .On 20th August 1959 tho plaintiff, while ho was still under cross-examination,moved that the plaint be amonded so that he might tako up the alternativeposition that, in tho ovont of it being established that there was no moneylending transaction, tho sum of Rs. 15,000 was duo to him as ap advanco paidby him to the defendant towards the purchaso of Hyndford Estato.
Held, that the plaintiff was not entitled to amend his plaint in terms of the* motion of 20th August 1959. The amendment that was sought was not for thepurpose of correcting any mistake, defect, slip or omission but to bring into •tho pleadings a case which the plaintiff himself had repudiated in his evidence.Tho amendment was dosigned to moot a situatioxi which might arise if thedofondant succeeded in establishing tho version of tho facts outlined by hisCounsol.
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Appeal from an order of the District Court, Kandy.
H. V. Perera, Q.C., with E. A. G. da Silva and Miss Maureen Seneviratne ,for Defendant-Appellant.
H. W. Jayeivardene, Q.C., with N. R. M. Daluv-atte, for Plaintiff-Respondent.
Cur. adv. vult.
January 24, 1963. Basnayake, C.J.—-
The only question that arises for decision on this appeal is whethertho learned District Judge was wrong in allowing the application of theplaintiff’s counsel to. amend the plaint in terms of the motion dated 20 thAugust i959.
Briefly the facts are as follows :—The plaintiff was clerk of GondennawaEstate and a businessman who was engaged in several lands of businesssuch as dealing in estate lands, running cinemas, buying green tea leaf,and lending money on cheques, chi^ts, promissory notes and bonds.He also owned a tea factory which manufactured bought tea leaf. 'Hehad known the defendant for a long time and had lent money to himsince 1947. On 25th January 1958 the plaintiff entered into a notarial
BASNAYAKE, C.J.—Lebbe v. Sandanam
463
agreement with the defedant to buy an estate called Hyndford Estate,377 acres in extent, for a sum of Rs. 538,000 of which a sum of Rs. 52,500was paid by the vendee by way of deposit before the execution of theagreement. The deposit was to be retained by the vendor as liquidateddamages if the vendee failed to observe the terms of the agreement or •complete the purchase.
On 26th August 1958 the plaintiff instituted the present action inwhich ho sought to recover from the defendant a sum of Rs. 15,000which the plaintiff alleged *he had loaned to the defendant. Apartfrom the plea of jurisdiction the plaint consisted of the prayer and thefollowing two paragraphs :—
<7
“2. The defendant on the days and dates appearing in theaccount particulars appended herewith borrowed moneys from thePlaintiff and the Plaintiff lent and advanced to the Defendant moniesat his request and for his use.
3. No part of th^said sum has been paid by the Defendant andthere is now due and owing to Plaintiff upon the said transactionsfrom the Defendant a sum of Rs. 15,000 on account of principal andRs. 309-72 on account of legal interest together making the sum ofRs. 15,309-72 which sum the Defendant has failed and neglected topay Plaintiff though thereto demanded.
Wherefore the Plaintiff prays for judgment against the Defendantin the said sum of Rs. 15,309/72 together with further legal intereston Rs. 15,000 from 10th day of August 1958 till date of Decree andthereafter legal interest on the aggregate amount till payment in fulland costs of suit and for such other and further relief as to this Courtshall seem meet.”
The “ account particulars ” referred to read—
Principal LegalTotal
Interest
Rs.Rs.c.Rs.c.
1958 February 27th by Cheque 5,000..114 59..5,114 59
1958 March 7th by Cheque..5,000..10903..5,10903
1958 April 9th by Cheque..5,000..5610..5,05610
15,0003097215,30972
In the defendant’s answer delivered on 20th January 1959 he stated :
“ 2. The defendant denies the averments contained in paragraphs2 and 3 of the plaint and puts the plaintiff to the strict proof thereof.
Wherefore the defendant prays for dismissal of the plaintiff’s actionwith costs and for such other and further relief as to this Court shall seemmeet.”
464
BASjSTAYAKE, C.J.—Lebbe v. Sandanam
The trial commenced on 28th July 1959. On that day the plaintiff’scounsel suggested the following issues :—
“ (1) Did the plaintiff lend and advance to the defendant the severalsums of money referred to in the account particulars filed with theplaint %
r,t
Has the defendant repaid to the plaintiff the said sum of moneyor any part thereof ?
If not, what stun of money is the defendant liable to pay to theplaintiff ? ”
Learned counsel for the defendant objected to issue (1). In doing sohe submitted that the issue should be recast in terms of paragraph 2of the plaint. The learned District Judge’s minute of the furthersubmissions made by counsel is as follows :—.
“ .. he does not deny the receiving of the money,^whatTis
denied is the borrowing^ and that the money was lent and advanced.Making further submissions Mr. Thiagalingam states that in the othercase dealt with by'the Court this morning, M.R. 7430, there was anagreement to purchase a particular estate, and these monies, whichform the subject matter of this action, were given by the plaintiff tothe defendant towards the payment of the consideration ; he suggestsinstead of issue (1) the following :—
(1) Did the defendant borrow from the plaintiff and the plaintifflend and advance to the defendant the sums of money re-ferred to in the account particulars in the schedule to theplaint
– Mr. Thiagalingam moves that it be recorded that if the plaintiff claimsto recover this money on some other ground,, he has several otherdefences to it.”
Plaintiff’s counsel agreed to the issue suggested by the defendant’scounsel and the trial proceeded.
The defendant while admitting the receipt of Rs. 15,000 in three equalinstalments denied that it was a loan but claimed that it was an advancetowards the purchase of Hyndford Estate.
The plaintiff denied this claim categorically and maintained overand over again in the course of his examination-in-chief and cross-examination that the sum he claimed was a loan. The cross-examinationwas directed to show that the plaintiff’s claim that the transaction wasa loan was untrue and that in fact it was a case of money given as an'advance towards the purchase of Hyndford Estate. These are some of thequestions and answers in the cross-examination—
Q.So all the three sums of Rs. 5,000 were made on the samebasis ?
A. As a loan basis.
BAKNAYA35LE, C.J.—Lebbe v. Sandcmam
466
Q. And you know as far as the defendant was concerned, hereceived it not as a loan but as an advance ?
A. No, I still say it was a loan; I understand that it was to bededucted from the consideration payable on HyridfordEstate.
Q. I am telling you now that the defendant’s position is that thisi% not a loan but an advance against the purchase price ofHyndford Estate ; do you accept that or not ?
A. I don’t accept it.
Q. You say what the defendant says is false 1A. Yes.
Q. When the defendant says that it was an advance on HyndfordEstate, it is false ?,
A. Yes.
•; Q. According to you, what was in fact the transaction ?
A. All three were loan transactions.
0
On 28th July 1959 while the plaintiff was still under cross-examinationthe trial was adjourned to 21st September. On that date, more than ayear after the plaint was filed, plaintiff’s counsel moved that the plaintbe amended in terms of the motion filed on 20th August 1959—
“ By the deletion of the following words from paragraph 3 :—
* on account of the principal and – Rs. 309*72 on account of legalinterest together making the sum of Rs. 15,309*72.’
2. By adding after paragraph 3 the following new paragraph :—
'4. In the alternative the plaintiff states that on or about the25th January 1958 the plaintiff and the ^defendant entered into anagreement No. 593 attested by M. A. Van Rooyen, Notary Public,whereby the defendant agreed to sell and the plaintiff agreed topurchase certain allotment of land comprising Hyndford Estate forI the sum of Rs. 538,000 of which on the said date the plaintiff paid’ to the defendant and the defendant acknowledged receipt of a sumof Rs. 52,500 as an advance and deposit.
5. Thereafter the defendant, who had been sued in case No.;1617of this Court, sitting at Gampola, for ejectment from a propertyof the United Planters Company on which he had trespassed,appealed to the plaintiff on several occasions to advance him moneysto enable him to meet his commitments in connection with the saidcase, the protracted trial of which was continued for over thirtydays before the defendant was ultimately ejected.
466
BASNAYAKJ3, C.J.—Lcbbc v. Sandanam
The plaintiff accordingly advanced to the defendant the sumsof money referred to in the account particulars filed herewith on theunderstanding that the plaintiff would be given credit for the saidamounts in the event of the sale of Hyndford Estate taking placeor in the event of it not taking place the defendant would repay thesaid amount to the plaintiff on demand.
The plaintiff states that the said sale of Hyndford Estatedid not take place and he accordingly demanded the return of thesaid sum of Rs. 15,000 and the sum of Rs. 52,500 referred to abovewhich the defendant refused to pay. The plaintiff has sued the
• defendant in case No. M.R. 7430 of this Court for the repayment ofthe said sum of Rs. 52,500.
• ■
The plaintiff states that he has paid the said sum of Rs. 15,000'to the defendant, who has received the same for his own use andbenefit and is now under on obligation to refund the same to theplaintiff but though thereto often demanded the defendant hasfailed and neglected to pay the said sum or any part thereof.
A cause of action has therefore accrued to the plaintiff to sue
the defendant for the recovery of the said sum of Rs. 15,000 togetherwith legal interest thereon from date of decree till date of paymentin fuff.’•
By amending the prayer by the 0 substitution1 for
Rs. 15,309 -72 ‘ Rs. 15,000
By deleting the last column re interest, and ‘Total
Rs. 15,309-72 ’ in the account particulars.”
The plaintiff’s counsel maintained that the transaction was a moneylending transaction and that the loan had to bo repaid if the purchaseof Hyndford Estate which the defendant had on 5th January agreed tosell to the plaintiff for a sum of E,s. 538,000 was not completed. Ifit was completed on or before 30th April 195S the defendant was entitledto retain tho money and the amomit to be paid in cash as the purchaseprice was to be reduced by that amount. He asked that he be given anopportunity of amending his plaint so that he may take up the alternativeposition that the sum of Rs. 15,000 having been received by .the defen-dant, the plaintiff is 'entitled in any event to recover it regardless ofwhether it was a loan or an advance against the purchase of HyndfordEstate. He wanted, he said, to plead an alternative position in theevent of it being established that there was no loan. Tho application wasopposed on the following grounds :
{a) That the application to amend was mala fide.
That it sought to introduce two new causes of action by way ofalternative grounds.
(c) That the amendments which were asked for were not in accordwith the principles enunciated in the case of Wijewardene v.Lenora.1
1 (195S) GO N. L. R. 457.
BASNAYAKE, C.J.—Lebbe v. Sandanam
467
After hearing counsel the learned District Judge made order grantingthe plaintiff’s prayer that the plaint be amended on the lines set out inthe application. This appeal is from that order.
Sections 21, 38, 46 (2) and 93 of the Civil Procedure Code provide foramendment of the plaint in each of the cases specified in those sections.Except in section 93 the burden of making the amendment is imposedon the plaintiff. In that section the power to amend is conferred on theCourt. It 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 final"judgment, the court shall have full power of amending in its discretion,arid upon such terms as to costs and postponement of day for filinganswer or replication, or for hearing of cause, or othervdse, as it maythink fit, all pleadings and processes in the action, by way of addition,or of alteration, or of omission. And the amendments or additionsshall be clearly written on the face of the pleading or process affectedby the order ; or if this cannot conveniently be done, a fair draft of thedocument as altered shall be appended to the document intended tobe amended, and every such amendment or alteration shall be initialledby the Judge.”
The Court may not exercise that power before the hearing or afterfinal judgment. The words “ at any time ” in the context mean at anytime after the bearing and not at any time before the hearing. Thatpower is conferred on the Court for the reason that it is only at the hear-ing or at any time thereafter that the Court would be in a position todecide whether having regard to the evidence there should be an amend-ment of the pleadings. The power conferred on the Court is the limitedpower of amendment. The word ** amend ” means in legal procedure—
“ An amelioration of the thing without involving the idea of anychange in the substance or essence.”
“ The alteration of a pleading, writ, petition or the like, to make itaccord with the facts of the case or with the rules of practice.”(Sweet’s Law Dictionary)
“ The correction of an error committed in any process, pleading,or proceeding at law or in equity.” (Black’s Law Dictionary)
“ A correction of any errors in the writ or pleadings in actions, suits,or prosecutions.” (Wharton’s Law Lexicon)
“ The correction of some error or omission, or the curing of somedefect, in Judicial proceedings.” (Byrne’s Law Dictionary)
The concept that an amendment is the correction of an error runsthrough all the definitions cited above and the definitions in the recog-nised English dictionaries, such as the Oxford English Dictionary, Stan-dard Dictionary, and Webster’s New International Dictionary. The
468BASNAYAlvE, C.J.—Lebbc v. Sandanam
Court’s power is therefore limited to the correction of errors in pleadings.If there is no error, then the Court cannot act under section 93. Thewords “ by way of addition,, or of alteration, or of omission ” suggestthat errors of both commission and omission'are contemplated. As thepower is limited to the correction of errors, it follows then that the Courthas no power to make alterations—
(а)which set up a new case;
(б)which have the effect of converting an action of one character
into an action of another character,
i
-(c) which have the effect of taking the action out of the provisionsgoverning the limitation of actions in the PrescriptionOrdinance or any other enactment or law,
{d) which have the effect of the addition of a new cause of action, .
•(e) which have the effect of prejudicing the rights of the other, side
existing at the date of the proposed amendment, and j, : •
* • 1 ,
'(f) which have the effect of changing the substance or essence of theaction.'' ..
In England elaborate rides provide not only for the amendment but-also for the alteration of pleadings. They also provide for a variety of•cases for which no provision is made in our Code. They are to be found
•at pages 621 to 650 of the 1963 White Book and are as follows :—~
"l
“ 1. The Court or a Judge may, at any stage of the proceedings,allow either party to alter or amend his indorsement or pleadings, insuch manner and on such terms as may be just and all such amendmentsshall be made as may be necessary for the purpose of determining the:real questions in controversy between the parties.
The plaintiff may; without any leave, amend his statement of•claim, whether indorsed on the writ or not, once at any time beforethe expiration of the time limited for reply and before replying, or,
, where no defence is delivered, at any time before the expirationiof four weeks from the appearance of the defendant who shall havelast appeared.1
A defendant who has set up any counterclaim or set-off may,
■without any leave, amend such counterclaim or set off at any time.
before the expiration of the time allowed him for answering the reply,
•and before such answer, or in case there be no reply, then at any time
before the expiration of twenty-eight davs from defence.
*
Where any party has amended his pleading under either of thelast two preceding Rules, the opposite party may, within eight daysafter the delivery to him of the amended pleading, apply to the Court■or a Judge to disallow the amendment, or any part thereof, and the•Court or Judge may, if satisfied that the justice of the case requires it,•disallow the same, or allow it subject to such terms as to costs or otherwise as may bo just.
BASNAYAKE, C.J.—Lebbe v. Sandanam
469
Where any party has amended his pleading under Rule 2 or 3,the opposite party shall plead to the amended pleading, or amendhis pleading, within the time he then has to plead or within eight daysfrom the delivery of the amendment whichever shall last expire ;and in case the opposite party has pleaded, before the delivery of theamendment, and does not plead again or amend within the time abovementioned, he shall be deemed to rely on his original pleading in answerto such amendment.
In all cases not provided for by the preceding Rules of this Order,application for leave to amend may be made by either party to theCourt or a Judge, or to the Judge at the trial of the action, and suchamendment may be allowed upon such terms as to costs or otherwiseas may be just.
If a party who has obtained an order for leave to amend doesnot amend accordingly within the time limited for that purpose bythe order, or if no time is thereby limited, then within fourteen daysfrom the date of the order, such order to amend shall, on the expirationof such limited time as aforesaid, or of such fourteen days, as the casemay be, become ipso facto void, unless the time is extended by theCourt or a Judge.
An indorsement or pleading may be amended by written’-^Iterations in the copy which has been delivered, and by additions on
paper to be interleaved therewith if necessary, unless the amendments.“ require the^insertion of more than 144 words in any one place, or are„ : so numerous or of such a nature that the making them in writingwould render, the document difficult or inconvenient to read, in either1 of which cases the amendment must be made by delivering a printof the document as amended.
Whenever any indorsement or pleading , is amended, the samewhen amended shall be marked with the date of the order, if any,under which the same is so amended and of the day on which such
amendment is made, in manner following, viz.: ‘Amended
day of pursuant to order of ..dated
the’
Whenever any indorsement or pleading is amended, such amend-ed document shall be delivered to the opposite party within the timeallowed for amending the same.
Clerical mistakes in judgments or orders, or errors, or errorsarising therein from any accidental slip or omission, may at any timebe corrected by the Court or a Judge on motion or summons withoutan appeal.
The Court or a Judge may at any time, and on such termsas to costs or otherwise as the Court or Judge may think just, amendany defect or error in any proceedings, and all necessary amendmentsshall be made for the purpose of determining the real question orissue raised by or depending on the proceedings ”
470
BASjSTAYAIvE, C.J.—Lebbc v. Sandanam ’
I havo.reproduced above all the rules in. the White Book in order toshow how elaborate they are and to show that they provide for a numberof cases not provided for in our section 93. The rule nearest to thatsection is rule 12 ; but it is wider in—
(а)that it permits the Judge to amend at any time and not only at
the hearing or at any time thereafter ;' > • ,
(б)that it expressly empowers the Judge to make all- amendments
. necessary for the purpose of determining the real question or -issue raised by or depending on the proceedings.
When seeking the aid of English decisions for the solution of questionsarising under section 93 of the Code,-it is well to examine the specificrule or provision of law which the particular decision whose aid is invokedseeks to interpret or give effect to. A decision given under one ruleshould not be taken as applying to all cases or to cases which do notfall within the ambit of the particular rule considered in the case. Withgreat respect to the eminent Judges of this Court, who adopted the.pronouncements of English Judges on the English Orders and Rules asapplying to section 93 of our Code, it seems to me that in doing so theyhave overlooked the fact that there are material differences betweenthat section and the English Orders and Rules. The learned DistrictJudge has also been guided by English decisions which he has regarded asbinding on him without a careful examination of the particular ruleconsidered in each of those cases. The cashes referred.to in the judgment areTildesleyv. Harper1, Clara Pede & Co. v. Commercial Union Association2,and Bakers Ltd. v.tMidway Building and Supplies Ltd.3 All these are casesdiscussed under Order 28 r. 1 in the White Book. Of these I. have notbeen able to refer to the volume of the report (32 W. R. 263) in whichClara Pede & Co’s case is roported as it is not available in any of tholibraries to which I have access. The case of Tildesley v. Harper (supra)a case decided in 1S78 deals with Order XIX rr. 17 and 22. They arenot reproduced in the report, but the observations of the Lords Justicesseem to indicate that what was being permitted is the correction of anerror in the pleadings. Bramwell, L. J. said—
“ … I confess ■ that if the present case had come before me I
should have had some doubt whether the Defendant had made a bonafide mistake, as the mistake is so very obvious. I should probablyhave required some affidavit or statement by tho solicitor to shewthat the slip in the pleading was a bona fide one, and if satisfied on thepoint, I should not have refused leave to amend.”
The words of Thesiger L. J. are to the same effect. They are—
“ … The object of these rules is to obtain a correct issue
between*the parties, and when an error has been made it is not intendedthat the party making the mistake should be mulcted in the loss of the
trial.”
1 (1878) 10 Ch. D. 393 at 396.
* (1958) 3 AU E. B. 540.
* 32 W. B. 263.
BASNAYAKE, C-J.—Lebbe v. Sandanam
471
It would appear from tho words I have quoted above that tho wordsof Bramwell 31*. J. quoted by the learned District Judge, “ My practicehas always been to give leave to amend refer to correction of donafide mistakes or slips. The case of Bakers Ltd. v. Midway Building andSupplies Ltd. {supra) is a decision in 1958 under Order 28 r. 1 and Order68 r. 3 (2). The trial Judge refused the defendant leave to amend, andin appeal leave was granted on the ground that the statement of claimdid not show that the plaintiff’s claim was to be put on the ground ofpersonal liability in equity as distinct from tracing trust money, and therefusal of leave to the defendants to amend by pleading that they werepurchasers for value without notice would deprive them of what wouldpossibly be their only effective defence to a claim so put. The followingwords of Jenkins L. J. indicate the basis on which leave was granted :—
“It is no doubt true that the function of a statement of claim isto plead the facts on which the plaintiff relies and that he is not strictlyobliged to plead law, but here it does seem to me that any person ofordinary experience reading the statement of claim would considerthat the matters in issue were confined to those which I have describedand would not appreciate that on this pleading it was intended notmerely to make out a claim of tracing in the old and restricted form,
. but also to rely on the personal liability in equity which was held toexist in Ministry of Health v. Simpson1 . .
The decisions referred to above, which interpret the scope and meaningof Order 28 r. 1, afford no authority for interpreting and determining inthe same way the scope of section 93 which is quite a different provisionmeant to serve a different purpose.-
In Wijewardene’s case 31 myself referred to Tildesley v. Harper {supra)and certain other English decisions {Re Trufort :Trafford v. Blanc 3; Clear v.Clear 4 ; Sharp v. Wakefield5 ; Wickins v. Wickins°; and Blunt v. Blunt7).But they were all cited in connexion with the discussion of the meaningand effect of the words “as it may think fit ” in section 93 and “ itthinks fit ” in section 211, and the principles governing the exercise ofthe discretionary power vested in tho Court by those words and not inconnexion with the scope of the power to amend ; because in that case thoplaintiff sought to supply an omission in his pleading by specifying the: names of the persons to whom the alleged defamatory words were spoken.The power to amend was not disputed, but the question was whetherthe discretion had been properly exercised. The following observationsin that case bring out the aspect of the section considered therein—
“ It would be unsafe to lay down any rules as to the limits of theexercise of the discretion vested in the Judge by that section. Never-theless pronouncements of this Court and of the Superior Courts inEngland afford some guidance in its exercise. It has been stated by this
(1950) 2 AU E. R. 1137.* (1958) 1 W. L. R. 467.
(1958) 60 N. L. R. 457.* (1891) A. C. 173 at 179.
3 53 L. T. (A'. S.) 498.8 (1918) P. 2G5 at 272.
(1943) A. C. 517 at 525.
472
BASNAYAKE, C.J-.—Lcbbc v. Sandanam
Court (Seneviratne v. Candappa1), quoting with approval the observa-tions of Brett M.R. in Clarapede v. Commercial Union Association2,that amendment should be allowed if it can be made ■without injusticeto the other side, however negligent or careless may have been thefirst omission, and however late the proposed amendment. ”
My words seek to underline the fact that even where there is a negli-gent or careless omission, mistake, slip or defect, the discretion cannot'be exercised if its exercise will cause injustice to the other side ;1 butwhere its exercise, does not cause injustice to the other side the fact thatthe omission or error is due to negligence or carelessness however grossdoes not prevent the Judge from exercising it even though the occasionfor its exorcise arises at a very late stago of the proceedings. It is im-portant to remember that a condition precedent to the exercise of theJudge’s discretion is the existence or disclosure of a mistake, defect,slip or omission in the pleadings.
In recent times there appears to have grown a practice of the respectiveparties repeatedly altering their pleadings, under the guise of amendmentas if they have an unlimited right to alter their pleadings as and whenthey think fit to do so. Judges of first instance appear to ignore theprovisions of the*Code and act as if Order 28 of the English Rules andOrders and all the rules under it Avere in force here and the parties them-selves had the right to alter pleadings and not as if the power was one ofamendment only and not alteration conferred on the Judge alone. Thistendency must be arrested and Judges both of appellate and originaljurisdiction have to be on their guard against the adoption of thepronouncements of the English Courts without a close scrutiny of theprovisions of law and the facts and^ circumstances in regard to whichthey are made.
The amendment that was sought in the instant case is not for thepurpose of correcting any mistake, defect, slip or omission, because theplaintiff has repeatedly assorted both in examination-in-chief .and cross-examination that the money he claimed was a loan which is the veryassertion he makes in his plaint. The plaintiff’s counsel seeks to bringinto the pleadings a case which the plaintiff himself has repeatedly andemphatically repudiated in his evidence. The amendment is designed tomeot a situation which may arise if the defendant succeeds in' estab-lishing the version of the facts outlined by his counsel. The Court waswrong in allowing the plaintiff’s application.
We therefore allow the appeal with costs, both of appeal and the con-test in regard to the amendment, set aside the order of the District Judgeallowing the amendment, and direct that the record be sent back in orderthat the trial of the action may proceed.
ABErESUNDERE, J.—I agree.
G. P. A. Silva, J.—I agree.
Appeal allowed.
> 32 W. B. 263.
i(1917) 20 N. L. B. 60 at 61.