042-NLR-NLR-V-54-WADUGANATHAN-CHETTIARAppellantand-SENA-ABDUL-CASSIM-Respondent.pdf
Waduganathan Ohettiar v. Sena Abdul Gassim
185
1952Present: Rose C.J. and Pulle J.
WADUGANATHAN CHETTIAR, Appellant, andSENA ABDUL CASSEM, Respondent
S. C. 6—D.C. Kurunegala, 19,467_
Pleadings—Amendment of plaint—Scope of—Effect on plea of prescription—Relevantfactor.
A Court will refuse to allow a plaint to be amended so as to include a newcause of action if such amendment, by its relation back to the date of theoriginal plaint, is prejudicial to a plea of prescription which may be raisedby the defendant in respect of the new cause of action.
^LpPEAL from a judgment of the District Court, Kurunegala.
N. E. Weerasooria, Q.C., with. W. D. Gunasekera, for the plaintiffappellant.
E. G. Wikramanayalce, Q.G., with H. W. Jayewardene and D. B. P.Goonetilleke, for the defendant respondent.
Cur. adv. vult.
L
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PULLE J.—Wadtiganathan Ohettiar v. Sena Abd-uX Casaim
March 5, 1952. Pottle J.—
A plaint was filed by the appellant in this case on the 18th July,1938, praying for a declaration of title to seven allotments of lands,-ejectment of the defendant and other ancillary reliefs. He alleged thathe was the purchaser of these lands at a sale held in execution of amortgage decree against one Uduma Bebbe. The case is still in thestage of pleadings and the question to be determined is whether thelearned District Judge was wrong in refusing to grant an amendmentof the plaint dated the 8th November, 1950.
The answer to the plaint was filed on the 5th December, 1938. Thedefendant pleaded that by a Crown Grant dated the 26th March, 1938,he became the owner of the lands described in Schedule A to the answerand that by Crown Grants dated respectively the 16th December, 1932,and 8th May, 1937, three persons became entitled to the lands describedin Schedules B and C and that by a deed dated 1st October, 1937, thedefendant obtained a conveyance of the interests of the three grantees.The defendant further stated that he was unaware whether the landsdescribed in the plaint were identical with those in Schedules A, B and Cand that if any of the lands described in the plaint came within the CrownGrants then the plaintiff had no cause of action against him.
For reasons which are not material to this appeal the case was put offfrom time to time and on the 13th May, 1941, the plaintiff delivereda replication in which he stated that Uduma Lebbe the mortgagor againstwhom the lands were sold and the Crown Grantees had acted in collusion todefraud the mortgagee and the purchasers at the mortgage sale and that“ the defendant and those from whom the'defendant derives title if anyhold the said lands for the benefit of the plaintiff ”. In this replicationthe plaintiff asked that judgment be entered as prayed for in the plaint.On the 2nd July, 1941, the plaintiff’s Proctors filed a list of issues and thetrial was fixed for the 28th November, 1941. Owing to the pendency of aconnected case No. 19,466 the trial was put off with the consent of theparties. The case was restored to the roll on the 3rd May, 1950, andthereafter on 19th July, 1950, the defendant filed an amended answer.To this the plaintiff filed an amended replication on the 28th September,1950, joining issue with the defendant on the matters raised in the answersand again prayed that judgment be entered “ as prayed for in the plaint ’The amended replication of the 28th September, 1950, was followed byyet another amended replication dated 12th October, 1950. It purportedto embody all previous amendments and it set out a new amendment inparagraph 4. It is material to read this paragraph :
“ The plaintiff further states that the defendant holds in trust forthe plaintiff and/or to the extent necessary to satisfy plaintiff’s claimthe title if any of the defendant based on the said settlement orders and/or Crown Grants in favour of the defendant and that the plaintiff isentitled to a declaration to that effect and to a conveyance of thesaid lands in plaintiff’s favour and for ejectment of the defendant.”
This replication prayed for judgment as asked for in the plaint and interms of the paragraph quoted above. The defendant objected to the
‘PTTT.T.'R J.—Wadiujanathan Chettiar v. Sena Abdul Cassini
187
amendment but it was allowed conditionally and, admittedly, the presentposition is that the amended replication of the 12th October, 1950, isa part of the pleadings in the case.
By a still further amended answer of the 1st November, 1950, thedefendant having set out certain defences previously taken by him tookthe point that the plaintiff was not entitled by way of replication to setup a trust or ask for a declaration or conveyance in terms of the prayerin the replication of 12th October, 1950. It was at this stage that theplaintiff sought to file the amended plaint which is the subject of thisappeal. The amended plaint embodied in two new paragraphs theplaintiff’s claim that the defendant held the lands, in trust for him. Theprayer in the original plaint was altered to the extent that relief wasclaimed in the alternative for a declaration that the lands were heldin trust and that the defendant be ordered to execute a conveyancein plaintiff’s favour.
The amendment was resisted on the grounds that—
it altered the scope of the original action ;
it disclosed a cause of action which Was prescribed ; and
it imported into the original plaint a fresh claim for relief which
could not be joined with the original claim.
In my opinion the first two grounds of objection taken together aresubstantial. The plaintiff instituted the action on the footing that hehad a superior title to the defendant’s and that the defendant was atrespasser and asked for a declaration in his favour and ejectment ofthe defendant. The amendment seeks to make out, as an alternativecause of action, that the title to the property remained in the defendantand that he held it in trust for the plaintiff and that the defendant wasliable to execute in favour of the former a good and valid conveyance.I accept the contention of the learned Counsel for the respondent that theplaint in its amended form is not analogous to one which sets out a singlecause of action with alternative reliefs. The plaint incorporates twodistinct causes of action with the reliefs appropriate to each. Had the- amendments been made shortly after the answer was filed in 1938 it ispossible that the grounds of objection now urged might not have beensustained. The picture in 1950 is very much altered. The defendantstates that an amendment in 1950 which would relate back, by twelveyears, to the date of the plaint would seriously prejudice a plea of pre-scription. I accept this contention. The plaintiff alleges that hispredecessor in title, Uduma Lebbe, and the defendant and others wereparty to a conspiracy to defraud persons claiming title under UdumaLebbe and that in the circumstances mentioned the defendant as a CrownGrantee or claiming under Crown Grants became a trustee for the plaintiff.Learned Counsel for the appellant while conceding the principle that anamendment prejudicial to a plea of prescription ought to be refusedcontended that the new claim was not prescribed by reason of the-provision in section 111 (5) of the Trusts Ordinance (Cap. 72) to the effectthat prescription does not rim where the constructive trust sought to beenforced is regarded by the law of England as an express trust. Assuming
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JHailenthinona v. JPeiris <Sb de Silva tfc Co.
that the plaintiff is right in regarding the defendant as the trustee of aconstructive trust, I am far from being satisfied that such a constructivetrust is treated as an express trust by the law of England. The twocases cited, Perwmal v. Harding1 and Arunasalam Chetby v. SomasundramGhetty 2, are clearly distinguishable. In both cases the persons who tookconveyances in their own names were regarded as agents who stood in afiduciary relationship to their principals.
It was further argued that inasmuch as the list of issues tendered, onthe 2nd July, 1941, by the Proctors for the plaintiff and accepted byCourt without objection contained four issues relating to the allegedtrust and that as the amended replication of the 12th October, 1950,with the prayer embodied in it was also accepted by Court, the amendmentof the plaint merely reflected in a single document the substance of thevarious replications. The defendant, however, states that the plaintiffis perfectly free to raise any issue arising on the pleadings as they standnow but contends that he too should be equally free to raise any issueon the pleadings but without the embarrassment of meeting an amendedplaint which would relate back a new cause of action to the date of theplaint. In my opinion the defendant’s contention is right.
I would dismiss the appeal with costs.
Hose C. J.—I agree. •
Appeal dismissed.