ANTHONY v. WEERASINGHE

022-SLLR-SLLR-2000-V-2-ANTHONY-v.-WEERASINGHE.pdf


ANTHONY
v.
WEERASINGHE
COURT OF APPEAL.GUNAWARDENA. J.JAYAWICKREMA. J.
CALA 142/93 (IG).
DC COLOMBO 11969/MR.17th SEPTEMBER. 1999.
Libel – Libel not set out verbatim in English – Amendment of Plaint ■ Is therea cause of action-Appending to the Plaint of the relevant. Article – Sufficientcompliance – Civil Procedure Code S.40.
The Application to amend the Plaint in an action for libel, for the purposeof setting out the libel which was in English, was refused.
On Appeal
Held :
Forms of the Plaint given in the schedule to the Civil Procedure Codeare what one may call a specimen or an example of the outward form asdistinct from content or matter. The relevant form requires the Plaintiffto set out the libel in the foreign language.
Form of the Plaint can never affect the cause of action or have anybearing on it as such, because the cause of action is the fact or factsaverred in the plaint which give the Plaintiff the right to judicial relief andin holding that because the form of the Plaint had not been adhered tothe Plaint did not disclose a cause of action, the learned District Judgehad manifestly erred.
By appending/annexing the relevant publication to the originalplaint, the Plaintiff Appellant had already set out this as he has producedor set out the publication as an exhibit whilst pleading in the body of thePlaint. A translation of this publication alleged to be defamatory is givenin the body of the plaint.
APPEAL (leave been granted) from the Order of the District Court ofColombo.
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Anthony v. Weerasinghe (Gunawcirdena. J.)
213
S.L. Gunasekera with S.J. Mohideen for the Plaintiff-Appellant.
Romesh de Silva with Harsha Amerasekera for the Defendant-Respondent.
Cur. adv. vult.
October 15, 1999.
U.DE Z. GUNAWARDENA, J.This is an appeal against an order of the learned DistrictJudge dated 22. 06. 1992 whereby he had refused to allow anamendment of the plaint, in an action for libel, for the purposeof “setting out” the libel which was in English, which is notnow the language of the Court, as it was at the date of thepromulgation of the Civil Procedure in the year 1889 – Englishgiving place in the relevant District Court, to the vernaculari. e. Sinhala.
The learned District judge had, in the order complained of,held that as the libel had not been set out verbatim in theforeign language i. e. English in which it had been published,the original plaint did not disclose a cause of action and hadrefused leave to amend. To quote the relevant excerpt from theorder of the learned District judge: “e© q350 gc? ai@-SLd®d
Q22033C3 ESSg’ ts8 S35C335 ■ K53&3S035"® 0C3 £3qE02T) SSJDc) 35^35 <S0C3«eC9rfOS55C3 SCS3®SX)G SJSOgdj ®S. dad
0353Sg)e<5s 35© Oi&iQlSi® 3508>Bc3 035065^35:3" The
learned District judge had also expressed the view, albeitcircuitously, or in a roundabout way. that the plaint ought notto have been entertained or accepted . in the first instance, asit did not disclose a cause of action because the plaint is notmodelled on the form set out in the Civil Procedure Code, inthat the libel, according to his view, had not been “set out"verbatim in the plaint in the foreign language i. e. English inwhich it had been published.
It is well to remember that the Civil Procedure Code has setout, in the schedule the "forms of plaints" in various actions
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Sri Lanka Law Reports
1200012 Sri UR.
and, the heading, in the schedule to the Civil Procedure Code,viz. “Forms of plaints", is self-explanatory. The form set outin the schedule to the Civil Procedure Code in respect of anaction for libel, as are the forms prescribed for other types ofactions, is only a mere matter of form, if not of routine, and hasno special significance as such. “Forms of the plaints' givenin the schedule to the Civil Procedure Code are what one maycall a specimen or an example of the outward form as distinctfrom content or matter. The expression viz. “Forms of Action"has been used in the schedule to the Civil Procedure Code incontradistinction to their substance on which alone the causeof action can arise – “form” being the antithesis of substance.The Learned District Judge is clearly wrong in mist aking theform for substance as evidenced by the excerpt of his orderreproduced above-any form being extensive enough to admitof considerable adaptation to changing circumstances.Needless to say that form being only a model or skeleton oughtto be capable of being adapted to the circumstances of anygiven case. The Court ought not to make a fetish of the form ofthe plaint but care more about its substance or content onwhich alone the cause of action can be rested. It is worthy ofrepetition that the learned District Judge had taken the viewthat, as the foirn of the plaint set out in the schedule to the CivilProcedure Code had not been scrupulously adopted, in that,the words of the libel had not been set out verbatim in English,that being the language in which the libel had been published,the plaint does not disclose a cause of action. I am afraid theform of the plaint can never affect the cause of action or haveany bearing on it as such, because the cause of action is thefact or facts, averred in the plaint, which give the plaintiff inany action the right to judicial relief and in holding thatbecause the form of the plaint had not been adhered to theplaint did not disclose a cause of action the learned DistrictJudge had manifestly erred. In the case in hand, the fact thatgrounds the cause of action is alleged unlawful violation of theplaintiff-appellant’s right to reputation. It is clearly alleged oraverred in the original plaint that the publication of the
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Anthony u. Weerasinghe (Gunawardena, ,J.)
215
statement in question had tended to injure the reputation anddiminish the esteem in which the plaintiff-appellant was heldby others. It is to be observed that the plaint in this caseconforms to all the requirements of section 40 of the CivilProcedure Code which section prescribes the requisites ofa valid plaint, and in particular section 40(d) of the CivilProcedure Code which requires that there should be a plainand concise statement of the circumstances constituting thecause of action – the cause of action set out in the originalplaint being, broadly speaking, that the plaintiff-appellant wasdefamed in consequence of a publication made by defendant-respondent the translation of which publication is alreadyembodied in the original plaint. If one were to make a fetish offorms very awkward and intolerable results or consequencesare likely to follow as did happen in the Roman times in thecase cited below – a case which I read about as a law studentbut which is indelibly writ on my memory because of theodiously technical nature of the decision that was reached bythe Roman Judge who seems to be conspicuous not so muchfor his lack of knowledge of the law but more so for his lack ofcommon – sense. The Plaintiff in that case suing a defendantfor cutting his vines lost his case because he used the word‘vines'’ when he should have said "trees" for the law of TwelveTables, which gave or provided for the action, spoke in generalterms of "trees" (Actio de arboribus succisis). The Judge hadfailed to appreciate the obvious fact that, both trees and vines(creepers) fall under the genus of plants deriving nourishmentfrom the soil – the difference, if any. between the two being thatformer, with a self – supporting stem, grew vertically to theground while the later grew along the ground.
In any event, it can even be said that the Plaintiff-appellantin this case had complied with the form of the plaint, relevantto this case, as set out in the schedule to the Civil ProcedureCode. The relevant form requires the plaintiff to “set out" thelibel in the foreign language – If the publication is in thatlanguage. The expression "set out" is a somewhat elastic one.
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12000] 2 Sri L.R.
which means "demonstrate” or "exhibit" (vide OxfordDictionary). By appending or annexing the relevantpublication to the original plaint, the plaintiff-appellant hadalready done just that, that is. .he has produced or set out thepublication, as an exhibit whilst pleading in the body of theplaint itself that it is produced as part and parcel of the plaint.One cannot overlook or disregard the fact that a translation,of the publication alleged to be defamatory, is given in the bodyof the plaint – the translation being incorporated into the bodyof the original plaint itself. I think the Plaintiff-appellant byannexing and producing or tendering the publication (in theforeign language) at the same time as the original plaint hassubstantially complied with the form of the plaint as given inthe Civil Procedure, if, in fact, he has not complied with therelevant form in every particular – or to the very letter.
In any event, if the learned District Judge thought that theappending to the plaint of the relevant article alleged to bedefamatory was not sufficient compliance with the form andthat the form of the plaint mattered, and had to be reverencedso much, he should certainly have allowed the amendment toincorporate the libel, verbatim in the foreign language into thebody of the plaint – because the scope of the action and themedia upon which relief was claimed would necessarilyremain un-altered-notwithstanding such insertion. It isrelevant to note that this application to amend the plaint, if ifcan be called an amendment, in order to incorporate the libelin the foreign language in which it had been published hadbeen made prior to the action being set down for trial. “Formsof the plaints" given in the schedule to the Civil Procedure, orfor the matter, any other form are merely intended as guidesto the style and arrangement of the plaint and what is expectedby the law is not rigorous adherence to them but substantialcompliance. In any event, too much subtlety and technicalityin law are not be countenanced. Forms are immaterial,without substance., and cannot affect substantial orsubstantive rights. Form of the plaint is not a constituent of
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Anthony u. Weerasinghe (Giinawarclena, J.)
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the cause of action, as the learned District Judge haderroneously thought, nor an essential part thereof. The factthat none of the points, on which this order is based in favourof the Plaintiff-Appellant, was argued or put forward before usby the learned counsel calls for remark. It is to be observed thatit is by guiding the Court to a correct decision, as is their duty,that the learned Counsel can prevent the judges from making“palpable errors” in law.
The order of the learned District Judge dated 22. 06. 1992is hereby set aside and the application to amend the plaint toincorporate the relevant publication in to the body of the plaintis allowed.
D. JAYAWICKRAMA, J. I agree.
Appeal allowed.
Application to amend plaint allowed.