076-NLR-NLR-V-70-J.-E.-D.-MARTIN-Appellant-and-S.-THENUWARA-Respondent.pdf
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SRI SKNDA RAJAH, J.—Martin v. Thenuwara
Present: Sri Skanda Rajah, J., and Alles, J.J.E. D. MARTIN, Appellant, and S. THENUWARA, Respondent
8. C. 110 (Inty.) 11964—D. C. Colombo, 58601 [M
Amendment of pleadings—Scope—Civil Procedure Code, ss. 93, 146.
Pleadings may be amended after issues which do not strictly arise from thepleadings are permitted to be framed.
A.PPEAL from an order of the District Court, Colombo.
H. W. Jayewardene, Q.C., with Cecil de 8. Wijeratne, for defendant-appellant.
C. Ranganathan, Q.C., with Vernon Martin, for plaintiff-respondent.
Cur. adv. vult.
October 8, 1965. Sri Skanda Rajah, J.—
The plaintiff is the administrator of the estate of the late Dr. A. S.Thenuwara, who was the owner of the premises in question.
The plaint averred that Dr. Thenuwara left a last will in which hi.widow Catherine was named executrix. She proved the will in D. CsColombo I6607/T and became entitled to the premises. She rentedthe premises to the defendant from 1st June, 1956. Later it was heldthat Catherine was not entitled to succeed to her husband’s estate asshe was aware of the plot to kill her husband. In consequence probatewas recalled and plaintiff was appointed administrator of the estate.Therefore, the contract of tenancy was null and void and the defendantwas a trespasser. The prayer was for a declaration that the premiseswere part of the estate of the late Dr. Thenuwara, ejectment of thedefendant and damages.
The answer admitted the averments in the plaint but maintained thatthe tenancy was valid, the plaintiff had recognised the defendant asenant of the premises and prayed that the action be dismissed.
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On these pleadings the plaintiff sought to frame the following, amongother issues :—
“ In the event of the Court holding that the defendant is a tenant
of the estate as from 1.9.57, is the plaintiff entitled to claim from
the defendant all rents from 1.9.57 ? ”
The defendant objected. The objection wras upheld. The plaintiffwas, however, given the opportunity to amend the plaint.
SRI SKANDA RAJAH, J.—Martin v. Thenuwara
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Thereafter, the plaintiff filed an amended plaint in which he set outevery averment in the original plaint and added :—
“ In the alternative the plaintiff states that the defendant wasin occupation of the said premises as from 1st June, 1056, as a tenantunder the estate of the late Dr. A. S. Thenuwara on a monthly rentalof Rs. 200 and the plaintiff as administrator of the estate of the lateDr. Thenuwara is entitled to claim from the defendant all rents from1st June, 1956, to the end of January, 1963.”
To this averment, objection was taken unsuccessfully. Hence thisappeal by the defendant.
As was pointed out by me in Thirumalay v. Kulandavelu, x, the wholepurpose of pleadings is to define, to clarify and to limit the issues whichare to be the subject of the pending contest.
The scope of the action may be determined by the pleadings, i.e.,the plaint and answer. On the plaint and answer the above issue arosefor consideration and it should not have been disallowed.
In recent times, there has been a tendency to insist that pleadingsshould be amended before issues which do not strictly arise from thepleadings are permitted to be framed. This tendency has been theresult of losing sight of the observations of this Court in some of theearlier decisions, e.g., Attorney-General v. Smith* and Silva v. Obeyesekera3.
In Attorney-General v. Smith supra) at 241, Layard, C.J., comparedour system of pleadings with those in England and India and went onto say, “ By section 146 of our Code, if the parties are agreed, the issuesmay be stated by them ; if not agreed, then the Court must frame them(see Fernando v. Soysa, 2 N. L. R. 41). In this case; the defendant’scounsel, i.e., pleader, expressed a wish to have a further issue settled.There is no necessity under our law to restrict the issues to the pleadings,as was done in this case ; it appears to me to be contrary to our law,and I think the Judge should have allowed an issue to be framed as towhether the bums contributed to the death of the deceased.”
In Silva v. Obeyesekera (supra) at 107, Bertram, C.J., said, “ Counselfor the plaintiff raised the objection that these issues did not arise on thepleadings, and that defendant should have got his answer amendedso as to raise these issues. On this objection being taken, the learnedDistrict Judge disallowed the issues. Here the learned Judge was ledinto a mistake. No doubt it is a matter within the discretion of theJudge whether he will allow fresh issues to be formulated after the casehas commenced, but he should do so when such a course appears to bein the interests of justice, and it is certainly not a valid objection to such acourse being taken that they do not arise on the pleadings.”
» (1964) 66 N. L. R. 285 at 287.
* (1923) 24 N. L. R. 97.
* (1905) 8 N. L. R. 229.
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Lafier v. Ediritoeera
In the recent case of The Bank of Ceylon, Jaffna v. Chelliahpillai1Lord Devlin said, “ The Civil Procedure Code gives in section 93 amplepower to amend pleadings. Moreover, the case must be tried upon the‘ issues on which the right decision of the case appears to the Courtto depend ’ and it is well settled that the framing of such issues is notrestricted by the pleadings ; see section 146 of the Code. Attorney-Generalv. Smith (supra) and Silva v. Obeyesekera (supra) *
In permitting the amendment in the present case, the learned Judgewas trying to grant relief on the basis of the defence set up. Thedefendant cannot, therefore, be heard to complain that he is prejudicedby this amendment.
The above are the reasons for the order we made dismissing the appealwith costs.
Alles, J.—I agree.
Appeal dismissed.