037-NLR-NLR-V-77-J.-P.-DINORIS-APPUHAMY-Appellant-and-Mrs-J.-P.-SOPHIE-NONA-and-another-Respo.pdf
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Dinoris Appuhamy v. Sophie Nona
1973Present: Wijayatilake, J., Walgampaya, J., and
Pathirana, J.
J.P. DINORIS APPUHAMY, Appellant, and Mrs. J. P. SOPHIENONA and another, Respondents
S. C. 215/69 (Inty.)—D. C. Kandy, 8644/1*
Civil Procedure Code—Sections 46 (2), 93, 146—Framing of issues
—Extent to which it is governed, by the pleadings.
Section 146 of the Civil Procedure Code cannot be readindependently of the proviso to section 46(2). Accordingly, whenissues are framed by the Court at the stage of the trial of a case,issues cannot be framed which will have the effect of convertingan action of one character into an action of another and inconsistentcharacter.
Although the word “ partnership ” was used in several places inthe pleadings, the plaintiff and the 1st defendant instituted thepresent action on the basis, in fact, of a co-ownership as betweenthe two of them and on the basis of a contract of roaster andservant and a trust as between the two of them on the one handand the 2nd defendant on the other.
Held, that the misdescription in the pleadings could not preventthe framing of issues on the basis of the true character of the
action.
(1967) 70 N.L.R. 200.
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(1908) 71 N.L.R. 138.
WT.JAYATILAKG, J.—Dinoria Appuhamy v. Sophie Nona
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Appeal
from an order of the District Court, Kandy.
H. W. Jayewardene, with L. D. Guruswamy, (Miss) IvyMarasinghe and J. C. Ratwatte, for the plaintiff-appellant.
Mark Fernando, with Maxwell A. Bastiansz, for the 1stdefendant-respondent.
C. Ranganathan, with K. Shanmugalingam, for the 2nddefendant-respondent.
Cur. adv. vult.
December 31, 1973. Wijayatilake, J.—
The question has arisen with regard to the propriety of theissues suggested by Counsel for the plaintiff in the course of thetrial on 23.6.69. Objection was taken to these issues by Counselwho appeared for the 2nd defendant and the learned DistrictJudge upheld these objections and he recast the issues. We havehad the benefit of a very illuminating and an exhaustiveargument by learned Counsel for the appellant and respondents.Mr. Jayewardene has submitted very strenuously that by virtueof Section 146 of the Civil Procedure Code, a case must be triedupon the issues on which the right decision of the case appearsto the court to depend and it is well settled that the framingof such issues is not restricted by the pleadings. In this contextsections 46, 93 and 146 of the Civil Procedure Code wereexamined thread bare. On a careful consideration of the several. cases referred to by the learned Counsel in my opinion section146 cannot be read independently of the proviso to section 46 (2).Under this proviso no amendment to a plaint shall be allowedwhich can have the effect of converting an action of onecharacter into an action of another and inconsistent character.So that, at the stage of a trial of a case when the Court framesthe issues such issues should have some relevance to the causeof action pleaded and one can ascertain the cause of actionpleaded by reference to the pleadings. The proviso to section 46clearly shows that an action of one character cannot be convertedinto an action of an inconsistent character. I am unable to agreewith Mr. Jayewardene that issues can be framed which fallentirely outside the scope of the action launched. If we do adopta procedure as suggested, it will in my opinion clearly defeatthe very object of the proviso to section 46. The principalquestion which arises therefore is as to whether the issues nowsuggested by Counsel for the plaintiff have in effect convertedan action of one character into an action of another andinconsistent character.
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WIJAYAIILAKE, X.—J).iiorts Appyhair.ij e. /Sophie Kova
Mr. Ranganathan learned Counsel for the 2nd respondent hassubmitted that the issues suggested seek to convert an actionbased on a partnership to one of a contract between master andservant. He also submits that the action being based on apartnership the issues on the basis of a trust would not arise.He also submits that issue (1) in effect seeks to convert anaction on the basis of a partnership to one of co-ownership. Heaccordingly very cogently contends that it would be highlyobjectionable to permit these issues particularly in the light ofsection 46 (2) of the Civil Procedure Code.
Assuming that the action is based on a partnership, in myopinion, there is much merit in these submissions and I am alsoinclined to agree with the reasoning of the learned DistrictJudge, although he has not considered the concept of masterand servant which Mr. Ranganathan has put in the forefrontof his submission.
Therefore the question does arise whether this action is basedon a partnership. We have examined the pleadings veryminutely and I am of opinion that although the word“ partnership ” has been used in several places, on a legalinterpretation of the averments there can be little doubt thatthe plaintiff and the 1st defendant have instituted this actionon the basis of a co-ownership as between the two of them andon the basis of a contract of master and servant and a trust asbetween the two of them on the one hand and the 2nd defendanton the other. Paragraphs 4, 5, 7, 8 and the prayer to the plaintmake this quite evident. In my opinion, therefore, the submissionmade by Mr. Jayewardene that this action is not based on apartnership as known to our law has to be sustained. I wouldtherefore overrule the objection to the issues suggested on23.6.69 and in addition frame a further issue. The issues thereforewould read as follows : —
Were the pla intiff and the 1st defendant the owners of
the business of wholesale dealers in vegetables atNo. 245, Central Market, Kandy ?
In or about 1948 was one J. P. S. Aboywickrema entrusted
with the management and control of the saidbusiness ?
Did the said J. P. S. Abeywickrema from and out of the
said income of the said business purchase movable andimmovable properties described in the schedule to theplaint ?
If so, is the plaintiff entitled to a declaration
(a) that the properties in the schedule to the plaintare the properties of the plaintiff and the 1stdefendant in equal shares,
Feduru v. Thahir
191
(b) that the said properties do not form part of theestate of the said J. P. S. Abeywickrema ?
Did J. P. S. Abeywickrema acquire the said properties out
of his own funds ?
If issue (5) is answered in the affirmative should these
properties be declared to be part of the estate of thesaid J. P. S. Abeywickrema which estate is beingadministered in case No. 2309/T D. C. Kandy ?
As would appear from paragraph (9) of the answer the saidAbeywickrema died leaving as his heirs the 2nd defendant andtwo minor children. In the circumstances, I am of opinion thatthis Court should ex mero motu make an order which will securethe interests of these heirs, particularly the minors. I wouldaccordingly direct the parties in possession of the propertiesreferred to, to deposit to the credit of this case pending its finaldisposal the nett income derived from these properties. TheDistrict Judge shall make a. suitable order with regard to thefurnishing of an audited statement of accounts about once inthree months.
I accordingly allow the appeal. In all the circumstances, thecosts of the proceedings in the District Court shall abide theresult of this action and the parties shall bear their own costsof this appeal.
Walgampaya, J.—I agree.
Pathirana, J.—I agree.
Appeal allowed.