052-SLLR-SLLR-2005-V-2-SENEVIRATNE-vs-HERATH-AND-ANOTHER.pdf
Seneviratne vs Herath and Another (Wijayarathne J.)
295
CA
SENEVIRATNEVSHERATH AND ANOTHERCOURT OF APPEALWIJAYARATNE, J.
CA 423/03 (Rev.)
D. C. Kuliyapitiya No. 11813/LOCTOBER 11,2004
Civil Procedure Code – Section 93 (2) – amendment of Pleadings – after 10days of trial – Circumstances – when could court grant relief ? – Question ofpresumption ? – Could it be considered at the stage of amendment of thePlaint?
The Plaintiff – Petitioner instituted action on 18.11.97 after several postpone-ments of the trial, on the 10th date of trial the Plaintiff Petitioner in personmoved to amend the Plaint. The Defendants objected to same, and the trialJudge refused the application, on the ground of laches. The plaintiff moved inrevision.
Held
It is apparent that the Plaintiff-Petitioner had explained his delay as allregistered Attorneys at Law had withdrawn from the case, in view of thefact that the 2nd defendant is a colleague in practice. It is beyond argu-ment that the Plaintiff Petitioner was driven to this situation by severalAttorneys at Law who having accepted the brief from the Petitioner buthave later declined to appear.
It is in these circumstances that the Plaintiff was compelled to ulti-mately seek to amend the Plaint himself after 10 days of trial fixed.None of the Attorneys at Law have proceeded to take any steps worth-while.
The circumstances of withdrawal of the Attorney – at Law is a circum-stance the District Judge should have considered.
per Wijayaratne J
“ The presence of such circumstances even in view of the provisions ofsubsections 1 and 2 of Section 93 warrant the amendment being al-lowed”
changing the scope of action and that provisions relating to presump-tion barred the inclusion or addition of a new land-need not be consid-ered at the stage of the amendment of the Plaint.
2 – CM 7 647
296
Sri Lanka Law Reports
(2005) 2 Sri L. R.
APPLICATION in Revision from an Order of the District Judge of KuliapitiyaCases referred to :
Hatton National Bank Ltd., vs Whittal Baustead Ltd., 1978/79 – 2 Sri LR25
Mackinnon Mackenzie & Co. of Ceylon Ltd., vs Grindlays Bank 1986 2CALR 279
S. A. D. S. Suraweera with Dushantha Epitawela for petitionerM. C. Jayaratne with Ms. Sobha Adhikari for 1st and 2nd respondents.
July 4, 2005cur adv vult
Wijayarathe, J.This is an application for the revision of the order dated 21.12.2002(P3a) made by the learned District Judge of Kuliyapitiya dismissing theapplication of the plaintiff-prtitioner to amend the plaint. The plaintiff-peti-tioner instituted the relevant action by his plaint dated 18.11.1997 andafter due procedure, the case came up for trial on 09.09.98 and on 20.01.99when the case came up for trial, the action was dismissed due to non-attendance of the plaintiff-petitioner. However the case restored to the rollof pending cases by order dated 24.05.2000, has come up for trial on thedays before the plaintiff-petitioner in person moved to amend the plaint.The Several postponements of trial was granted on account of the Attor-ney-at-Law for plaintiff-petitioner moving to be released from the case onpersonal grounds of not agreeing to appear against the 2nd defendant-respondent a fellow practitioner of law.
However the amendment was objected to by the 1st and 2nd re-spondents on grounds of laches and the amendment being likely to changethe scope of the action as it proposed to bring in new land. The learnedDistrict Judge having considered the application and the objection refusedthe application to amend on grounds of laches when plaintiff-petitionerpresented the same on the 10th date of trial without any reason for delaybeing adduced.
CA
Seneviratne us Herath and Another (Wijayarathne J.)
297
Upon the perusal of the order it appears that the learned DistrictJudged has considered vide Hatton National Bank Ltd. vs. WhittalBaustead Ltd1)r (1978/79) 2 SLR 25, Makinon Mackenzie & Co. of CeylonLtd. Vs. Grind lays Bank Ltc/2*.
The amendment proposed to describe in a separate schedule thelot 2 already referred to in the original plaint. The amendment will serve thepurpose of the determination of the real question raised through-out theplaint and will help effectually adjudicate upon the dispute between par-ties. The learned District Judge considered only the'matter of delay butfailed to consider other grounds urged by the defendant-respondents. Theyurged that amendment proposed to bring in new land, lot 2, changed thescope of the action.
The parties who moved this Court to dispose of the matter by way ofwritten submissions already tendered by the parties have also urged thatbringing in 2nd land namely lot 2 after 4 years was barred by the provisionof the Prescription Ordinance.
It is apparent on the draft amended plaint that the plaintiff-petitionerexplained his delay as all registered Attorneys-at-Law. withdrawing in viewof 2nd defendant being their colleague in practice. This is a fact borne outby the record of the case itself. The learned District Judge should haveseen the explanation and considered whether it was reasonable explana-tion. It is beyond argument that the plaintiff-petitioner was driven to thissituation by several of Attorneys-at-Law who having accepted the brieffrom him have later decline to appear. It is in those circumstances that theplaintiff was compelled to ultimately seek to amend the plaint himself afterten days of trial fixed. It is also evident on record that none of those AALshave proceeded to take any step worthwhile in the prosecution of theplaintiff-petitioner’s case and the number of dates of trial increased onlywith their withdrawals. It is the considered view of the supreme Court thatit is the right of a litigant to have the services of a lawyer in presenting hiscase to a Court of Law. In such situation the circumstances of withdrawalof the AALs is a circumstance the learned District Judge should haveconsidered.
29S
Sri Lanka Law Repons
(2005) 2 Sri L. R.
m I ~- *
The presence of such circumstances even in view of the provisionsof sub sections 1 and 2 of section 93 warrants the amendment beingallowed.
The ground the (earned District Judge did not consider, that amend-ment proposed to being in new land, ie ; lot 2, change the scope of theaction and provisions relating to prescription barred the inclusion or addi-tion of new land need to be considered at least at this stage. Perusal ofthe original plaint dated 18.11.1997 in paragraphs 4, 5, 6, 7 and 8 settingout the facts disclosing the cause of action has already included lot 2 inplan No. 702 referred to therein as relevant land to the cause of action.Therefore addition of a schedule morefully describing lot 2 cannot in Jawbe considered as bringing in new land or addition of cause of action thatwould changed the scope of the action. For the same reason there cannotbe a question of prescription that the Court could have considered at thestage of amendment of the plaint, though the defendant – respondentsrights to raise such a plea is not affected by acceptance of the amend-ment.
The circumstances of the case of the plaintiff-petitioner being aban-doned by several of AALs who initially agreed with him to appear for himand the circumstances of the learned District Judge not having consideredall material grounds urged, provides, in my view, exceptional circumstancesfor the intervention of this Court in the exercise of its revisionary jurisdic-tion.
Accordingly the order of learned District Judge dated 21.12.2002refusing the amendment of plaint is revised and set aside and the applica-tion for the amendment of the plaint is allowed. The learned District Judgeof Kuliyapitiya is directed to accept the amended plaint as per draft dated21.01.2002, follow due procedures and proceed to trial according to law.
Application for revision allowed with costs.
Application allowed.