Pre trial e version (1) (1)

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SALIENT FEATURES OF PLEADINGS AND PRE-TRIAL PROCEDURES

IN CIVIL SUITS

Civil litigation in our country is becoming more prevalent and complex

and the need for effective case management is considered paramount.

Systematic pre-trial procedures can have a dramatic impact on the

Court’s ability to manage cases. Effective pre-trial procedures prevent

unnecessary delay, encourage settlement, decrease cost of litigation,

and facilitate the effective use of judicial resources.

On the contrary, ineffective pre-trial management can lead to delays

and court congestion which eventually result in the denial of justice.

When justice is denied, it is the general public who suffers most.

Hence, the objectives of this workshop inter alia are to make the

general public the ultimate beneficiary of the whole exercise and

ensure that justice is meted out to the aggrieved with the least

possible delay at an affordable cost and in a friendly atmosphere.

It goes without saying that competence in law is one of the main skills

that an attorney at law has to develop to justify the enjoyment of his

privileged position over others, as a member of a noble profession. AN

ATTORNEY-AT-LAW IS AN OFFICER OF COURT. He has special

privileges in the society. Equally he is duty bound to fulfil certain

obligations. A legal practitioner has an overriding duty to court, to the

standards of his profession, and to the public. A lethargic Bar, can be

the root cause of public discontentment, in any legal system.

In our country, legal representation in civil courts has become so

indispensable, as the Bar plays a remarkably vital role in the

dispensation of justice. This is the reason as to why persons of good

repute, competent knowledge and ability are enrolled as attorneys at

law, subject to conditions. Hence, it is the obligation of every member

of the Bar to be well acquainted with the law and its development to

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make the general public the ultimate beneficiary of the legal system of

the country.

Steps that are desirable before the institution of an action include

taking instructions from the clients before setting the law in motion.

Sometimes the plaintiff may have to give notice of action to the

defendant. (e.g.; Section 461 of the CPC). In certain other cases to

make a positive demand of the defendant to do a particular act or to

refrain from doing an act may turn out to be advantageous. The

requirement of the dispute having to be previously referred for

arbitration (if necessary) and/or mediation also will fall under the

category of steps which can be classified as conditions precedent to

the filing of an action.

TAKING INSTRUCTIONS FROM THE CLIENTS

1. This is absolutely important and should not be lightly disregarded at

any stage of the case.

2. Since many a litigants are laymen it is the duty of the attorney-at-law

to take instructions and then advise him as to the manner in which

further action should be taken.

3. Even if the instructions taken from the client disclose a good case, it is

for the attorney-at-law to decide which remedy or the course would be

desirable in the best interest of the client.

4. In all matters whether or after the institution of an action subject to

the overriding duty to assist court, an attorney-at-law must act in the

best interest of his clients.

WHAT IS REGULAR PROCEDURE AND WHAT IS SUMMARY

PROCEDURE?

Chapter 24 of the CPC describes that summary procedure should be

followed in certain type of cases. It is trite law that summary

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procedure can be followed only in cases to which it is expressly stated

that "summary procedure" is applicable.

Illustrations to section 7 of the CPC shed enough light as to the nature

of the two sets of procedures. Regular procedure contemplates on the

defendant’s right to answer the allegations made in the plaint before

the pronouncement of the judgement. Under summary procedure the

applicant supports the contents of his petition by the affidavit and

other evidence (by way of exhibits) and the court after consideration of

the same, if a prima-facie case is established immediately passes an

order on the defendant on condition that if no opposition is shown

that the order will be made absolute. This is termed as order nisi

under 377 (a) of the CPC. The court is also empowered under

summary procedure to enter interlocutory order appointing a day for

the determination of the matter of the petition and intimating to the

respondents that he will be heard in opposition. This type of orders

are made under 377 (b) of the Code.

In summary procedure therefore, proceedings are instituted by way of

petition supported with proper evidence (affidavit and documentary

evidence) enabling the court to act under 377 (a) or (b).

Regular procedure

Under regular procedure an action commences with the filing of the

plaint. In terms of section 40 of the Code, the plaint shall be set forth

in duly numbered paragraphs and distinctly written upon good and

suitable paper, disclosing the name of the court, date of filing the

plaint, the name, description, and place of residence of the plaintiff

and that of the defendant so far as the same can be ascertained, a

plain and concise statement of the circumstances constituting each

cause of action, and where and when it arose and if more causes of

action than one are set out, the statement of the circumstances

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constituting each cause of action and finally a demand of the relief

which the plaintiff claims.

The court to which the plaint is presented must be the court which

has territorial jurisdiction in terms of Section 3 of the Judicature Act

read along with the relevant determination made by the Minister by

order published in the gazette. In deciding the court where the action

has to be instituted one has to strictly adhere to Section 9 of the CPC.

Section 9 deals with the jurisdiction of court. The existence of any one

of the four matters referred to in section 9 confers jurisdiction to that

particular court. Subject to pecuniary or other limitations

prescribed by law, action shall be instituted in the court within the

local limits of whose jurisdiction

A) A party defendant resides; or B)The land in respect of which the action is bought lies or is situate in whole or in part or C) The cause of action arises, or D) The contract sought to be enforced was made. Here, any party defendant resides means the place where any one of

the defendants resides – Hussain Vs Pieris et al 34 NLR 238.

A temporary residence of a defendant does not fall within the meaning

of this section and residence means where the family of the defendant

resides. If any doubt arises as to the permanent residence of the

defendant it may be appropriate to be guided by the electoral register,

probably the best evidence to establish the permanent residence of a

person.

It has been held in many cases that wherever, the defendant

physically resides in a place other than the place of residence of his

family, the court would look for evidence whether the defendant had

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the intention to return (animus revertendi) to the dwelling place of the

family.

Residence means the place of abode at the time when action was filed

and not where he resided thereafter - Jayamanna Vs Shabra Unico Finance

Ltd. 2001 3 SLR 321.

Where in an action instituted in a district court the defendant has not

denied in his answer the territorial jurisdiction of the court section 39

of the Judicature Act (71 of the Courts ord. then) precludes him from

raising such an objection subsequently by moving to amend the

answer.

ACTION BY AND ON BEHALF OF AND AGAINST JURISTIC PERSONS,

NATURAL PERSONS, PARTNERSHIP, SOLE PROPRIETORSHIP,

STATE, ATTORNEY GENERAL Etc.

There are two categories of persons who are entitled to have access to

a court of justice for relief and against whom relief can be sought.

They are primarily the natural persons and juristic persons. The law

does not recognise anyone other than those two categories of persons,

unless the law creates such other legal entities that can sue and be

sued. In such a case the plaint has to be filed in the designated name.

e.g. - The Council of Legal Education. When a plaint is filed by the

State, the Plaintiff would be the Attorney-General. In the case of a

Partnership, the partners have to be made plaintiffs and the name of

the Partnership needs to be mentioned in the caption. In the case of a

sole proprietorship, the plaintiff would be the proprietor of the

business and the name of the business needs to be inserted in the

caption.

CAN JURISTIC PERSONS SAID TO RESIDE AT THE REGISTERED

OFFICE

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A juristic person cannot be sued on the basis of it being resident at a

particular place- In Blue Diamond Ltd Vs Amsterdam Rotterdam Bank N.L

1993 2 SLR 249.

A liberal interpretation is permissible to include a corporate body as

residing at its registered office, where there is no other place of

business- MARTIN SILVA VS CENTRAL ENGINEERING CONSULTANCY 2003

SLR 2 228 (CA)

Although the decision in Martin Silva has provoked new

jurisprudential thinking with regard to the residence of a juristic

person, one must keep in mind that the judgement in Blue Diamond

case (supra) has been delivered by the Supreme Court.

Even if the residence of the defendant is not distinctly averred it is not

a ground to reject a plaint if the principal place of business is situated

within the jurisdiction of court- SOMASIRI VS CEYLON PETROLEUM

CORPORATION 1991 SLR 39

CONDITIONS PRECEDENT

When the jurisdiction is ousted by Statute no action is maintainable

in respect of such matters in the district court.

No action is maintainable to evict a tenant cultivator from a paddy

land by reason of the mandatory provisions of the Agrarian Services

Act No: 58 of 1979- TILLEKERATNE BANDA VS KALU BANDA (1993 1

SLLR 95)

PECUNIARY AND OTHER LIMITATIONS

Pecuniary limitations are generally interwoven with Jurisdiction. In

terms of Section 32 of the Judicature Act where the debt, damage,

demand or claim does not exceed Rs 1500/- original civil

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jurisdiction is vested in the Primary Court. But irrespective of the

value of such claims all those matters referred to in the Fourth

Schedule to the Judicature Act are taken away from the

jurisdiction of the Primary Court. For instance any action to obtain

an injunction is excluded. Vide- 4th Schedules to the Judicature Act

for the items that are specifically excluded from the jurisdiction of the

Primary Court.

FILING ACTION IN THE AREA OF THE COURT WHERE THE LAND IS

SITUATED

No confusion can arise as regard the invitation to exercise jurisdiction

based on the situation of a land. When the cause of action pertains to

a land, then the plaintiff could bring an action in respect of that land

in the court where the whole OR the part of that land is situate.

In a mortgage bond action based on immovable property should be

filed within the territorial limits of the court where the mortgaged

property is situated - DAVITH APPUHAMY V PERERA 11 NLR150

The question as to whether certain types of actions could be,

categorized as being "actions relating to land" was the subject of

interpretation in several cases. An action by a Lessee compelling his

Lessor to accept rental cannot be considered as an action relating to

land since the claim is based on the Lease Agreement. APPUHAMY VS.

GUNASEKARA 2 NLR 155

In a similar decision an action for specific performance of an

agreement to sell land was held not to be an action in respect of land

within the meaning of section 9 (b) of the Civil Procedure Code. A

Court, therefore, has no jurisdiction to try a case merely on the

ground that the land in respect of which the contract was made is

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situated within the local limits of its jurisdiction- PELIS V SILVA 60 NLR

289

The above Judgment has to be compared with the case of Ranghamy.

The plaintiff in that case sued the defendant in the District Court of

Kandy. The defendants were resident outside Kandy and the land

itself was situated outside. The District Court of Kandy was yet held to

have had jurisdiction by reason of the fact that the lease agreement

was entered into in Kandy. RANGHAMY VS KIRIHAMY 7 NLR 357.

An action for the redemption of an OTTY mortgage (where the

mortgagor reaps only the benefits or fruits of the property) and for the

release of the mortgaged land from the mortgage was considered a

dispute affecting an interest in land and therefore, be brought in the

court within the local limits of whose jurisdiction the land is situate-

NALLATHAMBI VS KURUKKAL 57 NLR 166,.

On a writ issued by the DC Negombo a land in Kurunegala was seized,

and a claim made and reported to the District Court of Negombo. The

claim being disallowed by the said Court, the claimant brought an

action, under section 247 of the Civil Procedure Code, in the Court of

Requests of Negombo against the judgment-creditor, who resided

outside the jurisdiction of such Court. It was held in that case that the

Court of Requests of Negombo had no jurisdiction to entertain the

action- WERTHELIS VS DANIEL APPUHAMY 12 NLR 196

When it is uncertain as to which local limit of a court any immovable

property would fall, or where any immovable property is located within

the territorial jurisdiction of more than one court, anyone of the courts

within whose jurisdiction the land is situated may, if satisfied that

there is "ground for the alleged uncertainty, record a statement to that

effect, and thereupon proceed to entertain and dispose of any action

relating to that property. The decree in such an action shall have the

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same effect as if the property was situated within the local limits of the

jurisdiction of such court.

2. Preparation and filing of Plaint.

Institution of civil suit under regular procedure begins with the

presentation of a plaint to court conforming to Section 40 which

requires that the plaint should contain a plain and concise

statement of the circumstances constituting each cause of action

and where and when it arose and such statement shall be set

forth in duly numbered paragraphs; and where two or more

causes of action are set out the statement of the circumstances

constituting each cause of action must be separately numbered. The

plaint must be simple, precise and short. Odgers' says that pleading

must state facts and not law. It must state material facts only. It

must state the facts and not the evidence by which they are to

be proved. It must state such facts concisely in a summarized form.

Section 46(2) deals with circumstances as to when can a court refuse

to entertain a plaint. In terms of 46(2) (a) to (f) a plaint may be

refused if it does not state correctly, and without prolixity, the several

particulars required to be specified therein, if it contains any

particulars other than those so required and/or Where plaint is

presented to a wrong court, if it is not subscribed to by the attorney-

at-law or the party concerned as the case may be, if it does not

disclose the cause of action, if it is not so framed as to afford a final

decision on the dispute or if it is wrongly framed by reason of

misjoinder or non-joinder of parties or misjoinder or non-joinder of

causes of action.

When refusing to accept a plaint the court can impose its own

conditions including a deadline before which the amendment has to

be effected. This would facilitate the plaintiff to amend the plaint so as

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to fall in line with the provisions of the law. However it must be noted

that upon the refusal of the court to entertain the plaint in terms of

section 46 (2), no amendment is permitted so as to convert an action

of one character to an action of another and inconsistent character.

Generally, in terms of section 46(2) of the CPC acceptance of a plaint

is refused before the issuance of summons on the defendant. If the

plaint had been accepted and summons issued on the defendant, it is

not a matter for the court to act under 46 (2) but for the defendant to

raise the point in his answer- MOHIDEEN VS GNANAPRAKASAM 14 NLR

33..

The question as to the fate of an insufficiently stamped plaint was

considered in a few cases. When a plaint or an answer is not rejected

by a District Judge under section 46 or section 77 of the Civil

Procedure Code for deficiency of stamps, the presumption is that the

Judge has adjudicated in favour of the party who had tendered the

pleading on the question as to the sufficiency of the stamp thereon -

JAYAWICKRAMA VS AMARASOORIYA 17 NLR 174.

The question whether the plaint should be dismissed on the ground of

insufficiency of stamps when a deficiency has been supplied was

considered in a series of decisions. The authorities on this matter are

quite clear that when the plaintiff supplies the deficiency even after

objection is taken in the answer, the court has no power to dismiss

the plaint on that account. It is well established principle of law that

the plaint cannot be dismissed on the ground of insufficiency of

stamps alone. 37 NLR 436

On the question of stamping a very important decision needs to be

adverted to here. That is the case of Sita Rajasingham. It is an

important decision and would be applicable not only to the plaint but

to the answer, application and petition filed in court under the Civil

Procedure Code. The principle laid down here was that in the absence

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of any statutory provision in relation to the petitions filed under

section 86 of the CPC, requiring that stamps should be supplied at the

time of its presentation; or that such a petition filed without stamps is

valueless and therefore should be rejected, or that such a petition

which is unstamped should not be acted upon, such a document

cannot be rejected. It was held in this case that when a petition,

affidavit and proxy filed under section 86 to purge default have not

been stamped the proper course is to call for the deficiency of stamps

to be supplied by the party who tendered that document – SITA

RAJARATNAM VS MAUREEN SENEVIRATNA 1995 2 SLR 69

Note: It was held that the decision in Sathasivan v. Cadiravel Chetti

(1919) 21 NLR 93 had been misapplied in Sita Rajaratnam’s case.

On the aspect of the failure to provide sufficient stamps or providing

insufficient stamps along with the plaint or other pleadings, it can be

concluded that neither the failure to stamp the pleadings nor the

insufficiency of stamps on the pleading will give rise to a dismissal of

the action. It is never treated as a fatal defect. The proper procedure to

be followed when pleadings are not stamped or insufficiently stamped

is to call for the stamps to be provided with and upon failure to reject

the plaint or other pleadings - YUSUF MOHAMED VS INDIAN OVERSEAS

BANK 1999 3 SLR 278 AND 1999 1 SLR 332.

ISSUE AND SERVICE OF SUMMONS ON THE DEFENDANT

Service of summons on the defendant is considered to be a significant

step during the pre-trial stage and a sacred duty. This is the only

means by which the defendant notified of the case against him and

therefore afforded the opportunity of being heard. As a matter of fact

the principle of AUDI ALTERAM PARTEM is given effect to and made

meaningful by due service of summons.

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The Summons along with a copy of the Plaint and the translation if

necessary as required, should be delivered with a precept in Form

No: 17 to Court and subsequently required to be personally served on

the defendant through the fiscal or Grama Niladari concerned.

The requirement of a proper service of summons on the defendant is

an imperative requirement under the Code. In the recent case of

Leelawathie enjoining order was served on the defendants and no

summons was served. The Plaintiff contended that the service of the

enjoining order was sufficient notice of the pending action and that

the defendant was bound to enter an appearance and file answer. This

argument was rejected and the court stressed the need to adhere

strictly to the provisions relating to service of summons. LEELAWATHIE

V JAYANERIS 2001 2 SLR 231

P Beatrice Perera Vs Commissioner of National Housing reported in 77

NLR at page 361 is a landmark judgement every lawyer should be

equipped with in the task of assisting court. The facts and

circumstances that led to this judgement are briefly referred to in the

head note itself. It reads as follows…

Where summons has not been served at all, an exparte judgment

against the defendant is void ab-initio and the defendant can

challenge its validity at any time when the judgment so obtained is

sought to be used against him either in the same proceedings or

collaterally, provided always that he has not by subsequent conduct

estopped himself by acquiescence, waiver or inaction.

The judgment discusses in detail the difference in effect between

patent want of jurisdiction and latent want of jurisdiction. The 3rd

respondent was a tenant of the petitioner. She was summarily ejected

from the rented premises under a writ of possession issued by the

Court of Requests, Colombo, following an exparte decree entered

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against her in an action in ejectment instituted by the petitioner.

Soon afterwards she filed petition and affidavit praying that the

judgment and decree entered exparte against her be vacated on the

ground that no summons had been served on her either personally or

by means of substituted service and that she had been quite unaware

of the action. After inquiry the Commissioner of Requests found that

the Fiscal's Officer who gave evidence of his efforts to serve summons

and of the substituted service on the 3rd respondent was totally

unworthy of credit. The default judgment and decree were therefore

vacated and the 3rd respondent was granted an opportunity to file

answer and defend the action. The Court, however, omitted to make a

consequential order that the 3rd respondent be restored to

possession of the premises immediately, pending the action, even

though it was the fraud of the Court's own officer-the Fiscal's Officer-

that had led to her summary ejectment. The 3rd respondent then

applied to the Commissioner of National Housing for immediate

restoration of possession of the premises to her under section 5 (2) (c)

of the Protection of Tenants (Special Provisions) Act, No. 28 of 1970

on the ground that she had been lawfully ejected " otherwise than on

an order of a competent Court". The Assistant Commissioner of

National Housing, after holding an inquiry, made order in favour of

the 3rd respondent. The present application by the petitioner was for

a Writ of Certiorari quashing the order of the Assistant Commissioner

of National Housing.

The Court held that the Assistant Commissioner of National Housing

made no error in law in holding that the exparte order of ejectment on

the basis of which the 3rd respondent was ejected was the order of a

Court not competent to make it. The order of ejectment which had

been made by the Court of Requests was void ab initio.

Service of summons on the defendant is a fundamental and

imperative requirement and a precondition before a case is fixed for

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an ex parte trial by Court. If there is non-observance of this

imperative requirement of service of summons, it cannot be said even

obliquely that the service of an order nisi on the defendant in regard

to alimony and cost under section 377 consequent to which the

defendant-appellant has entered her appearance through an

Attorney-at-Law and filed her objections along with her counter claim

for alimony making reference to the plaint amounts to sufficient

compliance under the provisions relating to service of summons. In

this case there was no service of summons. The order is not an ex

parte judgment but an order made in fixing the case for ex parte trial.

There is a wide divergence between an ex parte judgment and an

incidental order of fixing the case for ex parte trial. Section 88 (1)

would not apply. It is thus clear that no consequences would apply to

a defendant unless summons is properly served on him. JOYCE

PERERA V LAL PERERA 2002 3 SLLR 8

In another case the summons was served on the Defendant in

substituted form at his residence which was the last known place

of abode according to the Plaintiff. The Defendant was in fact at

the Mahara Prisons as last known to the Plaintiff. The service was

held to be invalid. MEERALEWAI VS. SEENITHAMBY 48 NLR 140

The facts in yet another remarkable decision (filtering out

unnecessary details) are that the defendant entered an appearance on

the summons returnable date after service of summons on him

through an attorney-at-law and moved for time to take necessary

steps including the filing of the proxy. A date was granted for the

defendant to file his objections against the notice of interim

injunction, answer and also to file proxy. Thereafter on another day

the plaintiffs moved for an order for ex parte trial on the e ground that

the defendant failed to appear on 5.4.2002 and the defendant's

attorney-at-law who was not duly authorized was not entitled to

move for time. The Supreme Court rightly held that "The Code must

be interpreted as far as possible, in consonance with the principles of

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natural justice, and the court can only be satisfied that summons

had been "duly served" where the defendant has been given a fair

opportunity of presenting his case in his answer. If not, the court has

the power to give further time for answer even if the defendant does

not ask. Held further that the order of the learned district judge

refusing to fix the matter for exparte trial is quite correct.

DHARMASENA AND ANOTHER VS THE PEOPLE'S BANK - SUPREME COURT

2003 SLR 1 122

The Rules applicable to service of summons underwent sweeping

changes in the year 1997 when the legislature in its own wisdom

introduced a new procedure with regard to service of summons by Act

No 14 of 1977. The amendment included the service of summons in

the first instance by registered post and the returnable date for

service of summons was made less than three months from the date

of institution of the action.

Section 60 of the CPC provides for the consequential steps to be

followed after the defendant is issued with summons by registered

post. Section 60 is worded as follows..

60.(1) The court shall, where it is reported that summons could not be effected by registered post or where the summons having been served and the defendant fails to appear, direct that such summons be served personally on the defendant by delivering or tendering to him the said summons through the Fiscal or the Grama Niladhari within whose division the defendant resides or in any case where the plaintiff is a lending institution within the meaning of the Debt Recovery (Special Provisions) Act, No. 2 of 1990, through the Fiscal or other officer authorized by court, accompanied by a precept in form No. 17 of the First Schedule. In the case of a corporation summons may be served personally by delivering or tendering it to the secretary or like officer or a director or the person in charge of the principal place of business of such corporation.

An important amendment was introduced with regard to substituted service. Sub-Section (2) to Section 60 reads as follows…

(2) If the service referred to in the preceding provisions of this section cannot by the exercise of due diligence be effected, the Fiscal or Grama Niladhari shall affix the

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summons to some conspicuous part of the house in which the defendant ordinarily resides or in the case of a

corporation or unincorporated body, to the usual place of business or office of such corporation or such body and in every such case the summon shall be deemed to have been duly served on the defendant.

AMENDMENT OF PLEADINGS

The purpose of amendment of pleadings is to facilitate the proper

adjudication of the disputes. The provisions relating to amendment

of pleadings are spelt out in Section 93 of the Code. Quite

importantly, the original Section 93 was amended twice once by Act

No. 79 of 1988 and then by Act No.9 of 1991. The liberal approach

towards amendment of pleadings was restricted by the amendment.

The object, the Legislature apparently aimed at achieving by

introducing amendments to section 93 is to cut short delay in the

disposal of civil suits. This is a warning sounded to caution the bar

against negligence committed in drafting pleadings. Hence, the

Lawyers must be extremely careful in the preparation of pleadings. In

the light of the stringent provisions of the law now in force, it is of

utmost importance that lawyers are extremely cautious attitude at

the point of drafting pleadings. However, it may so happen that

matters having a bearing on the case, may come to light at a

subsequent stage of the proceedings or it could well be that a party

might by inadvertence omit to include a material fact in the original

pleadings. The primary motive in enacting Section 93 in the amended

form is to cater to the needs of such instances. However, in the

proper exercise of the discretion the court has to be on its guard to

ensure that no prejudice is caused to a party by reason of the court

having allowed an amendment.

There may not be much of a difficulty to comprehend the need to

amend the pleadings before the case is first fixed for trial. In terms of

subsection (1) of section 93 the court is vested with full power to allow

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amendments of pleadings in its discretion, by way of addition, or

alteration, or of omission.

The difficulty arises only when an application is made for amendment

of pleadings after the case is first fixed for trial. In such an instance,

the person who seeks an amendment of pleadings will be given the

green light only upon the court being satisfied, for reasons to be

recorded, that grave and irremediable injustice will be caused if

such amendment is not permitted and that the party so applying

has not been guilty of laches. If amendments are allowed the court

has a discretion to impose terms. The mode of amending pleadings is

set out under subsection (4).

The discretionary power to amend pleadings must be exercised subject

to the limitations set out in Section 46(2) of the said Code and that no

amendment should be permitted which has the effect of converting an

action one character into an action of another or inconsistent

character. JAYASIRI EDIRISINGHE VS CITY PROPERTIES (PVT) LTD..,

S.C.H.C.L.A. 18/08, H.C. CIVIL) 47/2006(01)

The principle by which a Court ought to be guided in deciding to alter

pleadings is that the alteration will make the real issues clear.

Rathwatte v. Owen 2 NLR 141

A bonafide amendment which does not cause prejudice to the other

party should be allowed. IN CASIM LEBBE V. NATCHIYA 21 NLR 205

In Vipassi Nayake Thero vs. Jinarathane Thero 66 CLW 43, it was

held that there should not be an objection to a correction sought to

be made facilitating the court to identify the real issue between

the parties. This principle should however operate subject to the

condition that no injustice is done to the opposite party.

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In the case of Lebbe vs. Sandanam 64 NLR 461 a Divisional Bench

considered the rules applicable in the case of amendment of

pleadings and stated that the court should not allow an

amendment in the following instances:

(a) If the amendment sets up a new case.

(b) If the amendment converts an action of one character

into an action of another character.

(c) If the amendment has the effect of defeating an objection based

on prescription made by the other party.

(d) If the amendment adds a new cause of action.

(e) An amendment prejudices the rights of the opposite party.

(f) If the amendment changes the substance and the essence of

the original action.

An action in respect of one land cannot be converted into an action in

respect of another land by an amendment of pleadings.

IN UBERIS VS JAYAWARDENE 62 NLR 217

The use of the machinery to amend pleadings, should not be

permitted in the conversion of an action of one character to that of

another. Accordingly, a plaint filed in an action for definition of

boundaries cannot be amended so as to convert the action to one of

declaration of title to land. EKANAYAKE V. EKANAYAKE 63 NLR 188

In ODIRIS SILVA & SONS LTD Vs JAYAWARDENE 55 NLR 335, The plaint

was filed within the period of limitation, but the defendant was

wrongly named as " C. A. Odiris Silva and Sons Oil Mills," and not " C.

A. Odiris Silva and Sons, Limited. After the expiry of the period of

limitation, the caption of the plaint was amended by insertion of the

word "Limited " immediately after " C. A. Odiris Silva and Sons ". It

is contended for the defendant company that the action against the

company must be taken to have been instituted only upon the

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amendment of the caption of the plaint and that the plea of

prescription should therefore have been upheld. The learned judge's

rejection of the plea is based upon a finding that it was the defendant

company, on whose behalf its manager had bought the drums from

the plaintiff, that the plaintiff intended to sue, though the plaint had

given the defendant a wrong description. This is a finding of fact

which, it seems to me, it was open to the learned judge to reach upon

the evidence, and in this view of the facts no objection can be taken to

the order allowing the plaintiff to amend the caption of the plaint.

The plaintiff designated the chairman of the urban Council as the

defendant and later by an amendment sought to bring in the urban

Council in place of the inadvertently named defendant. It was held

that the amendment is justifiable. VELUPILLAI V. THE CHAIRMAN,

URBAN DISTRICT COUNCIL 1[(1936) 39N.L.R. 464].

For a different approach adopted by court not allow an amendment

which defeats a plea of prescription the decision in WADUGANATHAN

CHETTIAR Vs SENA ABDUL CASSIM, 54 NLR 185 may be useful. It

was held in that case that A Court will refuse to allow a plaint to be

amended so as to include a new cause of action if such amendment,

by its relation back to the date of the original plaint, is prejudicial to a

plea of prescription which may be raised by the defendant in respect

of the new cause of action.

In De Alwis v. De Alwis - 76 NLR 444 it was laid down as a rule that

a Court will not allow to set up a claim by an amendment of the plaint

if a fresh claim would be barred by prescription at the date of the

application to amend the plaint. However, where there are special and

peculiar circumstances which require the amendment to be ordered in

the interests of justice the provisions of section 93 of the Civil

Procedure Code are wide enough to allow such an

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amendment.

An important decision on this matter is reported in 58 NLR 169. In

that case, Plaintiff sued the defendant on the basis that the

defendant, was an over holding lessee by atonement. Defendant

admitted the bare execution of the lease, but stated that the lessors

were unable to give him possession of the land in question. He averred

that the land was sold to him by its lawful owner (not one of the

lessors) and that by adverse possession from that date he had

acquired title by prescription. The plaintiff then sought to amend the

plaint by claiming a declaration of title and ejectment upon the footing

that his rights of ownership had been violated. The plaintiff’s attempt

to amend the plaint failed as the court took the view that the

amendment would cause prejudice to the defendant's plea of

prescriptive possession. PATHIRANA VS JAYASUNDARA

Fernando v. Fernando (74 NLR 57) is a decision that laid down the

rule that objection relating to the want of jurisdiction in a Court to

hear a case may be waived by the defendant, if the want of jurisdiction

is not apparent on the face of the record but depends upon the proof

of facts. After the plaintiff's case was closed and after the defendant

and two witnesses had given evidence the trial Judge allowed an

application made by the defendant to amend the answer in order to

raise the plea that the Court had no jurisdiction to try the case as the

dispute had not been referred to the Conciliation Board and no

certificate from the Chairman had been annexed "to the plaint as

required by section 14 (1) (a) of the Conciliation Boards Act. Having

regard to the prejudice to the plaintiff and the late stage at which the

amendment of the answer was sought to be made, the defendant was

precluded by delay and acquiescence from raising the objection to

jurisdiction and that she had in fact waived it.

In Samarasinghe Vs Pagngnasara Thera 53 NLR 271, the two

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plaintiffs, who were Buddhist monks, sought to vindicate title to a

land in their personal capacity on the footing that it was their private

pudgalika property. During the trial, however, it appeared that the

land in question was the Sanghika property of a Vihare. The 2nd

plaintiff, thereupon, claimed to vindicate title to the land, not in his

personal capacity as owner, but on behalf of the temple. It was held

that it would be improper to permit the whole nature and scope of the

action to be altered.

In Daryani Vs Eastern Silk Emporium Ltd, 64 N.L.R. 529, plaintiff

sued the defendant by summary procedure to recover a certain sum of

money due on a cheque. The defendant obtained leave to appear and

defend unconditionally. Thereafter, the Court allowed an application

made by the plaintiff to amend his plaint by pleading an alternative

cause of action for goods sold and delivered for the same amount. It

was held that the Court was correct in allowing the alternative cause

of action to be pleaded. “An amendment seeking to add a new or

alternative cause of action, which is so germane and so connected

with the original cause of action, should be permitted. The real subject

matter being the indebtedness, no prejudice can arise from an

amendment which raises such an issue.

In the same judgment at page 531 it was observed as follows

“There are two main rules of practice that have emerged from the

decided cases regarding the principles which a Court should take into

consideration when it exercises the power to amend the plaint. Firstly,

the amendment should be allowed, if it is necessary for the purpose of

clarifying or raising the real question or issues between the parties.

This rule is based on the principle that a multiplicity of actions should

be avoided. The whole purpose of pleading is to define, clarify and to

limit the issues which are to be the subject of the pending contest”.

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SHERMAN DE SILVA & CO. LTD., Vs MRS. ARIYALATHA DE SILVA,

77 NLR 275 is a decision where the discretion to amend pleadings has

been looked at from the point of view of putting the real subject matter

in issue. Plaintiff sued the defendant company for an order to register

certain shares in her name. Before answer was filed, she proposed to

amend plaint by stating that the shares had been unlawfully

registered in the name of one R. Sherman de Silva and prayed "for an

order that the defendant company do cancel the registration of the

said shares in the name of R. Sherman de Silva and to register the

said shares in the name of the plaintiff. It was held that the

amendment of the plaint should be allowed as it merely sought to put

the real subject matter of the action in issue even though it was done

by way of the additional relief claimed. Neither the fundamental

character of the suit nor its nature and scope was altered by the

amendment.

As regards amendment the test is whether in order to effectively

adjudicate upon the dispute between the parties amendment of the

pleadings is necessary. The main considerations to be borne in mind

in exercising the discretion whether to allow or refuse the amendment

are (a) that the rules of procedure have no other aim than to facilitate

the task of administering justice, (b) that multiplicity of suits should

be avoided. As a general rule leave to amend ought not to be refused

unless the applicant is acting mala fide and the blunder has resulted

in injustice to the other party which cannot be compensated costs. An

amendment of a clerical error or a bona fide wrong description of

property should be allowed-so also an amendment clarifying the

position put forward in a pleading. Amendments which do not alter

the fundamental character of the action or the foundation of the suit

are readily granted. But if an injustice and prejudice of an

irremediable character will be inflicted on the opposite party the

amendment will not be allowed. As a rule an amendment will not be

allowed if a fresh suit on the amended claim would be barred by

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prescription but while this is a factor to be taken into account it does

not affect the power of the court to order it if that is required in the

interests of justice. However negligent or careless may have been the

first omission and however late the proposed amendment, the

amendment may be allowed if it can be made without injustice to the

other - MACKINNON MACKENZIE & CO. GRINDLAYS BANK LTD 1986 2 SLR

272.

However, consequent to the amendment introduced in 1991, the

court would adopt two different approaches in considering an

application to amend pleadings. If the application is made before

the first date of trial the courts would yet exercise the same

liberal approach which was exercised under the original Section

93. In this context it could be stated that the statement of the

law in the above case still operates as the guide for a court.

If the application for amendment is made either on the first day of

trial or thereafter the courts would adopt a more strict approach in

considering such an application. In such an instance, as a rule, an

amendment will not be allowed unless the applicant satisfies the

court that grave and irremediable injustice would be caused to

him and that he is not guilty of laches. Accordingly, if an

application is made in circumstances falling under Section 93(2), the

burden shifts on to the applicant to adduce material and satisfy

court as to why his application should be allowed.

In Colombo Shipping Co. Ltd v. Chirayn Clothing Pvt Ltd 1995 2

SLR 97 it was held that an amendment after the first date of trial

should be allowed only in limited circumstances.

In Paramalingam v Senevirathne 2001 2 239 the Court of Appeal

considered the concept of "laches" referred to in section 93 and

stated that "laches" mean negligence or unreasonable delay in

asserting or enforcing a right. There are two equitable principles

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which come into play when a statute refers to a party guilty of

laches; the doctrine is that delay defeats equities, and the second

is that equity aids the vigilant and not the indolent."

It was stated in Gunasekera v. Abdul Latiff 1995 1 SLR 225 that an

application for an Amendment should not be allowed unless the

delay is explained. In Avudiappan v. Indian Overseas Bank Ltd 1995

2 SLR 131 the guideline suggested is that “laches" be taken to mean

delay that cannot be reasonably explained.

In Insurance Co. Ltd. V. Nanayakkara 1999 3 SLR 50 it was held

that an amendment should not be allowed unless the Court is

satisfied that;

a) Grave and irremediable injustice will be caused to the

party applying, and

b) That such party is not guilty of laches.

It was further held in that case that the Court must be satisfied

about both reasons above and then record the reasons for its

order.

In Hatton National Bank v. Silva 1999 3 SLR 113 the plaintiff had

instituted action against the Defendants, and later sought to add a

cause of action based on damages. The application was allowed by

the trial Judge. However, it was held by the Court of Appeal that

the Amendment should not have been allowed since it introduces a

new cause of action.

In Gunasekera v. Punchimenike 2002 2 SLR 43 Plaint was filed

seeking a declaration of title to an undivided share of a land. It was

pleaded that the defendant-appellant had encroached upon a portion

which was not described with reference to physical metes and

Bounds or by reference to any map or sketch. The matter was fixed

for ex parte trial; after ex parte trial application was made to issue a

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commission to survey the land and identify same. The ex parte trial

did not end up in a judgment. After the return of the Commissioner,

the plaint was amended, a fresh ex parte trial was thereafter held.

After the decree was served, the defendant-appellant sought to purge

default, which was refused.

In appeal it was held that

(i) The Court was obliged initially to have rejected the original plaint

since it did not describe the portion encroached upon - s. 46 (2) (a)

read together with s. 41 of the CPC.

(ii) When a plan was prepared after ex parte evidence had been

partially led and recorded and an amended plaint filed, Court should

have issued notice as per s. 93 of the CPC.

Per Wigneswaran,J. stated that "A Court should not allow amendment

of pleadings after an ex parte trial has been ordered. The scheme of

the Code had been where the defendant is absent on the day fixed for

his appearance and answer, trial ex parte should be held either

immediately or as the next step."

In the case of Seylan Bank v. Thangaveil, 2004 2 SLR 101 the Bank

sought to recover an overdraft facility granted to Thangavelu. In the

original plaint the Defendant's name is described as Sabapathy

Thangavelu - address being the same. Summons was served on

Sinnamah Thangavelu. Upon summons being served Sinniah

Thangavelu appeared in court, filed proxy/answer describing himself

as S. Thangavelu.

When the case was called on 05.04.2002 attorney-at-law for the

defendant petitioner submitted that though he had filed proxy for the

defendant's Sabapathy Thangavelu, his correct name is Sinniah

Thangavelu. The trial judge directed the plaintiff to correct the

mistake in the caption of the plaint. The trial court accepted the

amended plaint on 10.01.2003 and granted time to the defendant to

file his answer.

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The defendant-petitioner having moved in revision the Court of

Appeal ruled out the opportunity for revision and stated inter alia

that the amendment effected to the caption is only the correction of a

clerical error in the name of the defendant. The defendant's surname

and address have been correctly given.

Names are needed only to designate persons and the suit is not

against names but against persons designated thereby.

The effect of the 1991 amendment was discussed in the case of

MASEENA Vs. SAHUD 2003 3 SLR 109 where the 1st plaintiff

divorced his wife the defendant and thereafter he and the 2nd

plaintiff-respondent - Lessee - instituted action against the defendant-

petitioner. The 1st plaintiff-respondent sought a declaration to the

property in question and the eviction of the defendant-petitioner, his

former wife, and also sought a declaration that the 2nd plaintiff -

respondent is the Lessee.

Of the issues raised by the defendant four issues were tried as

preliminary issues. The trial court in answering the preliminary issue

12 - held that the action is not properly constituted and it is contrary

to section 35(1) and that there is mis-joinder of parties and returned

the plaint for amendment under section 46(2). The defendant-

petitioner sought leave to appeal against the order. It was held: (i) The

trial Judge has failed to take into account section 93(2) of Act 9 of

1991. (ii) The amendment has taken away the power of court to amend

pleadings ex mero motu. An amendment could be allowed only upon

the application of a party when that party satisfies two conditions in

section 93(2). In this case there was no such application. Per Gamini

Amaratunga. J.

'The Judge has held that the action is not properly constituted and

that there is a misjoinder of parties then no further amendments of

the plaint should have been allowed."

The following judgment may be useful under the heading amendment

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of pleadings….

HATTON NATIONAL BANK LTD. v. WHITTAL BOUSTEAD LTD. SLR 1978-79, Vol :2, Page: 257

GORDON FRAZER & CO. LTD. v. LADY GYMARA FERNANDO SLR 1980, Vol :2, Page: 97

ABEYWARDENA AND OTHERS v. EUGINAHAMY AND OTHERSSLR 1984, Vol :2, Page: 231

MACKINNON MACKENZIE & CO. v. GRINDLAYS BANK LTD. SLR 1986, Vol :2, Page: 272

WIJESINGHE v. KARUNADASA SLR 1987, Vol :2, Page: 179

PILAPITIYA v. BUDDADASA AND ANOTHER SLR 1990, Vol :2, Page: 186

GUNASEKERA AND ANOTHER v. ABDUL LATIFF SLR 1995, Vol :1, Page: 225

AVUDIAPPAN v. INDIAN OVERSEAS BANK SLR 1995, Vol :2, Page: 131

COLOMBO SHIPPING CO. LTD. v. CHIRAYU CLOTHING (PVT) LTD. SLR 1995, Vol :2, Page: 97

KURUPPUARACHCHI v. ANDREAS SLR 1996, Vol :2, Page: 11

JAYASINGHE v. GNANAWATHIE MENIKE SLR 1997, Vol :3, Page: 410

SHAMMARI v. PREMIER AIRLINE AGENCIES (PVT) LTD. SLR 1998, Vol :2, Page: 162

HATTON NATIONAL BANK v. SILVA AND ANOTHER SLR 1999, Vol :3, Page: 113

ROHANA v. SHYAMA ATTYGALA &OTHERS SLR 1999, Vol :3, Page: 381

CEYLON INSURANCE CO., LTD. v. NANAYAKKARA AND ANOTHER SLR 1999, Vol :3, Page: 50

PARAMALINGAM v. SIRISENA AND ANOTHER SLR 2001, Vol :2, Page: 239

RAJASINGHAM v. SENEVIRATNE AND ANOTHER SLR 2002, Vol :1, Page: 82

GUNASEKERA v. PUNCHIMENIKE AND OTHERS SLR 2002, Vol :2, Page: 43

WIJESUNDARA v. WIJESUNDARA SLR 2003, Vol :1, Page: 374

WIMALASIRI AND ANOTHER v. PREMASIRI SLR 2003, Vol :3, Page: 330

SEYLAN BANK v THANGAVEIL SLR 2004, Vol :2, Page: 101

RUSHANTHA PERERA VS WIJESEKERA SLR 2005, Vol :3, Page: 105

COLOMBO DOCKYARD LTD VS JAYASIRI PERERA AND OTHERS SLR 2006, Vol :1, Page: 99

PERERA v GEEKIYANA SLR 2007, Vol :1, Page: 202

KARUNARATNE V ALWIS SLR 2007, Vol :1, Page: 214

MENDIS V MENDIS SLR 2007, Vol :2, Page: 79

KANAGARAJ VS. ALANKARA SLR 2010, Vol :1, Page: 185

SENEVIRATNA v. CANDAPPA NLR Vol :20, Page: 60

CASSIM LEBBE v. NATCHIYA NLR Vol :21, Page: 205

AVVA UMMAH v. CASINADER NLR Vol :24, Page: 199

FERNANDO v. PALANIAPPA CHETTY NLR Vol :28, Page: 273

of 45

RATWATTE v. OWEN NLR Vol :2, Page: 141

FERNANDO v. SOYSA NLR Vol :2, Page: 40

MUTTUMENIKA v. SUDUMENIKA NLR Vol :45, Page: 58

WADUGANATHAN CHETTIAR v. SENA ABDUL CASSIM NLR Vol :54, Page: 185

DON ALWIS v. VILLAGE COMMITTEE OF HIRIPITIYA NLR Vol :54, Page: 225

C. A. ODIRIS SILVA & SONS, LTD. v. JAYAWARDENE, P. NLR Vol :55, Page: 335

LUINONA v. GUNASEKARA NLR Vol :60, Page: 346

WIJEWARDENE v. LENORA NLR Vol :60, Page: 457

AZIZ v. THONDAMAN NLR Vol :61, Page: 217

UBERIS v. JAYAWARDENE NLR Vol :62, Page: 217

EKANAYAKE v. EKANAYAKE NLR Vol :63, Page: 188

THE BANK OF CEYLON, JAFFNA v. CHELLIAHPILLAI NLR Vol :64, Page: 25

LEBBE v. SANDANAM NLR Vol :64, Page: 461

DARYANANI v. EASTERN SILK EMPORIUM LTD. NLR Vol :64, Page: 529

THIRUMALAY v. KULANDAVELU NLR Vol :66, Page: 285

N.DALUWATTA v. M.B. SENANAYAKE NLR Vol :67, Page: 524

E.VELUPILLAI v. C. SIVASITHAMPARAM NLR Vol :67, Page: 80

WALLES v. HECTOR SILVA NLR Vol :70, Page: 308

MARTIN v. THENUWARA NLR Vol :70, Page: 332

MUNICIPAL COUNCIL OF JAFFNA v. DODWELL & Co. LTD. NLR Vol :74, Page: 25

FERNANDO v. RONALD NLR Vol :75, Page: 231

DE ALWIS v. DE ALWIS NLR Vol :76, Page: 444

DINORIS APPUHAMY v. SOPHIE NONA NLR Vol :77, Page: 188

SHERMAN DE SILVA & Co., LTD. v. DE SILVA NLR Vol :77, Page: 275

JOINDER OF PARTIES AND MISJOINDER

In drafting plaints a question that has to be adverted to by the

Lawyers centres round joinder of parties and consequences of

misjoinders. (Vide Chapter IV CPC - Sections 11 to 23).

It is permissible under CPC to join any number of persons having a

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common interest in one and the same action. But wherever a cause of

action is separate and distinct such Plaintiffs cannot be joined. It

would be misjoinder to join such Plaintiffs in such an instance.

In an aquilian action it was held that the widow and the minor

children could sue the Defendant jointly as Plaintiffs (Vide Section

11 CPC) Fernando vs. Sunthari Pillai (45 NLR Page 126).

Ceylon Mercantile Union Vs. Insurance Corporation of Sri Lanka (80

NLR309) is a case where the Trade Union was held to enjoys no

locus standi to maintain a suit for relief based on the contractual

relationship of it’s members.

Section 14 of the CPC deals with the principle involved in joinder of

Defendants. When the Plaintiff finds that there are more than

one person against whom the right to any relief exists in respect of

the same cause of action whether jOintly, severally or in the

alternative he could join them all as Defendants in the same action.

The important matter to remember is that the claim for relief

should arise in respect of the same cause of action. In Lowe vs.

Fernando (16 NLR 398) it was held that it was a misjoinder to

join as Defendants several persons who were occupying different

portions of a large land unless there was evidence that they were

acting in concert.

A new Section 14 A was introduced by Act No: 6 of 1990. It

permits the substitution of the person alleged to be the legal

representative. (Vide amended Section 394(2) CPC).This Section

enumerates the procedural mechanism that has to be adhered to in

a case where the Defendant dies and the right to sue survives.

In Nilamdeen vs. Dayananda (20011 SLLR 160) the scope of this

Section was gone into by the Court of Appeal.

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Section 15 CPC permits a Plaintiff to join as parties to a suit all

persons who are jointly and/or severally Liable on anyone contract.

Section 16 is important. It deals with Representative Actions. Thus

where several persons have a common interest in initiating or

defending an action, one or more of such persons may with the

permission of Court sue or be sued on behalf of all interested

parties. But the Court is expected to give notice of the institution

of the action to all parties either by personal service or by public

advertisement.

In Pabilis Vaidiya vs. Kumara Young Farmers' Club 69 NLR 569 it

was held that a person is not entitled to sue in a representative

capacity on behalf of a Club unless he was also liable to be sued

in a representative capacity. Thus a Patron or an Advisor to a Club

was held to have had no common interest with the members of the

Club and therefore had no standing to sue in a representative

capacity. Thus according to Section 16 it is the common interest

that all persons suing or being sued which must be taken into

account when filing such representative actions.

In Ranasinghe vs.Nandanee Abeydheera 1997 3 SLLR 401 it was

held that the notice referred to in Section 16 was imperative and

failure to comply would be a fatal irregularity. (see also 39 NLR 90

earlier mentioned).(Vide also the recent case of Pinto vs. Trelleborg

Lanka Pvt. ltd. 2003 3 SLLR 214 with regard to validity of proxies

filed on behalf of parties in representative actions).

Misjoinder means the joinder of wrong parties. But Section 17

specifically says "No action shall be defeated by reason of the

misjoinder or non joinder of parties ..... " In Appuhamy vs.

Pangnananda Thero 67 NLR 89, it was held that no action should

be defeated merely for the reason of misjoinder or non joinder of

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parties. (vide also Kudhoos vs. Joonoos 41NLR 251 and Podihamy

vs. Seimon Appu 47 NLR 503; also later case Ranasinghe vs.

Fernando 69 NLR 115). In Morathota Sobhitha Thero vs.

Amunugama Rathnapala Thero 1981 1 SLLR 201 it was held that

wherever there is a misjoinder or non joinder, the proper

procedure would be not to dismiss the action but to strike off the

wrong party. This view has been endorsed subsequently in Uragoda

vs. Jayasinghe 2004 1 SLLR 108 too.

Objections under Section 17 CPC needs to be taken at the earliest

possible opportunity. In any event in terms of Section 18 every

application made to Court to rectify a misjoinder has to be made on

or before the date of hearing. Once such an application is made the

Court could make an order striking out any party improperly

joined either as Plaintiff or Defendant. Yet in Banda vs.

Dharmaratne 24 NLR 210 it had been held that irrespective of the

stage of the application parties can be joined at any stage of a civil

suit. The principle behind such an order was that the objective of

the Code was to avoid multiplicity of suits and that if the

proposed addition or the deletion of a party facilitates the task of

administration of justice and the proper determination of the

matter before Court the order under Section 18 could be made at

any point of the case.

In considering an application under Section 18 CPC the primary

consideration of the Court should be whether the addition of a

party or the striking out of a party would facilitate the proper

adjudication of the matter before it. (Vide Arumugam

Coomaraswamy vs. Andiris Appuhamy-1985 2 SLLR 110 and

Keerthiwansa vs. Urban Council, Horana - 2001 3 SLLR 252). In

the case of Robert Dissanayake vs. People's Bank - 1995 2 SLLR

320 it was held that every application for the addition of a party

ought to be allowed if a Plaintiff can show that he cannot get

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effectual and complete relief unless the new party is added. In the

case of a Defendant he must show that he cannot effectually set up

a defence unless such a party is added. If any party is added

consequent to an application under Section 18 such party will

thereafter be called as "added party".

A Court is expected to look into following matters when considering

addition of parties-

a. That such party has an interest in the litigation before Court.

b. That he would be prejudiced by a judgment being made either

for the Plaintiff or the Defendant.

c. That his admission would prevent the same question being

tried over twice.

d. That the subject matter of the action is the same as the

subject matter claimed by him. (Paulu Perera vs. Fernando -2

Leader Law Reports 48) In Ponnamma vs.Kasipathi Pillai 4 NLR 261

it was held that if the objection was one of non joinder the

Defendant has to name the party who has to be joined.

Sometimes objections are raised by Defendants that the action had

been instituted against the wrong party. Should the Court allow

the correct party to be added or dismiss the action? The correct

procedure to be followed was set out in Don Alwis vs. Village

Committee of Hiripitiya (54 NLR 225) where it was held that in such

an instance it was not possible to permit a Plaintiff to amend the

Plaint in order to add the correct party but to dismiss the action

permitting the Plaintiff to commence a new action.

Section 85 CPC outlines the procedure to be followed in an ex parte

trial. At such trials too the evidence led must be evidence that are

legally admissible. They must be given orally as far as possible.

Affidavits should be resorted to only in exceptional cases. (Vide

Seneviratne vs. Dharmaratne 1997 1 SLLR 76).ln Sirimavo

Bandaranaike vs. Times of Ceylon (1995 1 SLLR 22) it was held

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that judges have a duty to act according to law even in ex parte

trials. The Courts should ensure that the claim of the Plaintiff is

due in fact and in law and must dismiss his action if he is not

entitled to it. Once an ex parte judgment and decree are entered

a copy of the decree must be served on the Defendant. Such copy

must contain an endorsement that any application to set aside the

decree must be made within 14 days of the service of the decree. If

such an application is made by petition and affidavit with notice

to Plaintiff by the Defendant indicating the reasons for his non-

appearance the Court would conduct an inquiry and if satisfied

that the reasons offered are reasonable, would set aside the

judgment and decree earlier made and the Defendant would be

permitted to proceed with his defence from the stage of his

default. According to Section 86 (2A) 'At any time prior to the

entering of judgment against a Defendant for default, the Court

may, if the plaintiff consents, but not otherwise, set aside any

order made on the basis of the default of the Defendant and permit

him to proceed with his defence as from the stage of default upon

such terms as to costs or otherwise as to the Court shall appear

fit.' Such an application too has to be made by petition supported

by affidavit though Courts do allow applications in open Court

made by Attorneys at law who had missed their cases to have the

ex parte orders vacated when the other side lawyer consents, out

of courtesy to the Bar.

In Sirimavo Bandaranaike vs.Times of Ceylon ltd.1995 1 SLLR 22

it was held that the revisionary jurisdiction of the Court of Appeal

under Article 138 of the Constitution extends to revising or

varying an ex parte judgment entered upon the default of

appearance of the Defendant on the ground of manifest error,

perversity or the like. Thus it was held possible for a Defendant

to revise the ex parte judgment entered against him without

following the procedure laid down under Section 86(2) CPC if the

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order of the District Court was sought to be attacked on manifest

error ,lack of jurisdiction and the like.

Non appearance of the Plaintiff If Plaintiff is absent on the date of

trial the Court would dismiss the action of the Plaintiff. Section

87 [1]. What is important to remember is that when an action is

so dismissed the Plaintiff is prevented from instituting a fresh

action in respect of the same cause of action. Section 87[2]. But

Section 87[3] permits the Plaintiff to apply within a reasonable time

from the date of dismissal to have the dismissal set aside.

The reasons for non appearance must be on reasonable grounds

and the Court should be satisfied of such grounds.

Section 88(1) CPC states that no appeal shall lie against any

judgment entered upon default. That means that a party at default

cannot file a direct appeal but has to follow the procedures set

out in either Section 87(2) or Section 86 (2) Cpc. But under

Section 88(2) the order made by Judge after inquiry into the

default of Plaintiff or Defendant would become appealable.

In such an event the proper remedy for the affected party is to go

by way of direct appeal and not by way of leave to appeal.(Vide

Sangarapillai vs Karthigesu 2 Sri Kantha Law Report page 99 and

Wijenayake vs. Wijenayake ( 5 Sri Kantha Law Report Page 28).

Discovery of Documents Interrogatories

Section 94 to 100 CPC deal with Interrogatories. The purpose of

Interrogatories is to obtain from the party interrogated admissions

of facts which is necessary for the party interrogating to prove in

order to establish his case" (Vide Kennedy vs. Dodson 1895 1

Chancery Division 341; Wijesekera vs. Eastern Bank Ltd. 43 NLR

109).

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A litigant could serve interrogatories on the other side at any

time before hearing with permission of Court obtained by filing

motion ex parte. (Section 94) Serving of interrogatories has to be

done before the hearing of a case and where the Defendant wishes

to pose the questions it could be done only after Answer is

tendered. (Vide Independent Newspapers Ltd. vs. Gunasingham

19911 SLLR 285).They have to be filed in Court and then be

delivered to the other side. In Gunawardhane vs.Dunuwille 46 NLR

565 it was held that the Court would not allow interrogatories if

they are too wide or where they are only remotely connected to the

case.

When served, such party is expected to answer same within 10 days.

Court can extend the time.(Section 99).

In terms of Section 98 a party can refuse to answer on the following

grounds-1. that they are scandalous or irrelevant 2. that they have

been framed mala fide 3. that the answer will tend to incriminate

himself 4. that the matter inquired after is not sufficiently material

at that stage of the action or any like ground.

Parties are duty bound to answer interrogatories. If not answered or

insufficiently answered the party interrogating could make an

application to Court for a directive on the other party to answer

the interrogatories. Before such a directive is issued it is

imperative that the party interrogated is given notice of the

application for an order under Section 100 made by the party

interrogating.(Ceylon Insurance Co.Ltd.vs. Sudu Banda 70 NLR 261 )

If any party fails to comply with any order to answer

interrogatories, if he be a Plaintiff, he is liable to have his case

dismissed for want of prosecution and if he be a Defendant to

have his defence struck out and to be placed in the same

position as if he had not appeared and answered. (Vide Section

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109 CPC)Thus the consequences are very severe. An interesting

observation was made in Chetty vs. Ragsoobhoy 46 NLR 12. That

is, a failure to answer interrogatories does not make a Defendant

liable to have his defence cut off. It is only the failure to comply

with an order made by Section 100 CPC that makes a Defendant

liable to face the same consequences as in the case of an ex

parte trial. In Lechimanan vs de Silva 2 CLW 29 it was held that

the Court should act extremely cautiously before dismissing a

Plaintiffs action under Section 109 of the Code. (Vide also Amin

Jrai vs. Hadji Omar and Co. Ltd. 71 NLR 115; Appusinno vs. Obis

Appuhamy 22 CLW 80; Namasivayam Chetty vs. Ragsoobhoy 46

NLR 12; Abrew vs. Sekeram 2003 1 SLLR 381 and Nihal Sri

Amarasekera vs. G.L.Peiris 20011 SLLR 417.)

Genuineness of Documents

This is also an optional step similar to interrogatories. But the

consequences are not as severe. Under Section 101 any party can

go before Court and obtain an order by way of an ex parte motion

requiring the other party to admit the genuineness of any

document material to the action. Such motion has to be filed at least

10 days before the date of trial. Once an order is obtained a notice

would be despatched to the opposite party which has a duty to

comply with the order within 4 days of the order being served.

Such admission of any document is required to be in writing and

has to be signed by the party or his registered attorney at law and

filed in Court. (Section 101 (2)).

The consequence of failure to comply would be that the Court

would direct the party refusing to admit the genuineness of any

such document to bear the expenses involved in proving such

document whatever may be the result of the action.(Section 101 (4)).

Discovery of Documents Any time during pendency of an action the

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Court can on its own or on the application of a party direct any

other party to a suit to declare by affidavit all documents currently

in his possession and which are relevant to the case.

When such an order is made a party can object to the production

of a document by way of an affidavit stating his grounds for

objection. What shall be the contents of such affidavit would be as

per Section 181 of the CPC. (Vide Eastern Star Lines Ltd. vs.

Deutsche Bank of Hamburg 76 CLW 93). It is not incumbent on the

District Court to make an order under Section 102 as a matter of

course in circumstances where the Court feels that no good is

reasonably to be expected and therefore could refuse such an

application. (Vide Weerasuriya vs. Croos 22 NLR 87 and De Silva

vs. De Silva 58 NLR 97). Inspection of Documents Under Section

104(1) CPC a party to a case may at any time before the hearing

file an ex parte motion and ask for notice on the other party to

produce any document referred to either in their pleadings or their

affidavits for the purpose of inspecting such documents. Once

notice is issued the party noticed has to permit the other party

or their registered attorney to inspect the document and take

copies thereof.

The consequences of failing to comply with such notice would be

that such party shall not afterwards be entitled to put any such

document in evidence on his behalf in such an action unless he

satisfies Court that such document relates only to his own title or

that he had some other and sufficient cause for not complying

with such notice. Section 104 (2). In such an event Court could

permit such document to be put in evidence. Chettiar vs. Bandirala

2 CLW 51 affirmed the position that an order for production of

documents for inspection could only be made in respect of

documents which are referred to in the pleadings or the affidavits

of a party. A document not in the possession of a party but

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added under Section 51 CPC to the list of documents, would also

be a document in respect of which such an order could be made.

Section 105 specifies the mode of production of documents for

inspection. Response to notice under Section 104 should be within

10 days of the receipt of such notice. In his response through

Court he must indicate a time and place within three days from

such delivery to inspect. If the right of inspection is not granted

under Section 106 an application could be made to Court for an

order of inspection by petition and affidavit. The affidavit must

state those matters enumerated in Section 107 CPC. The

consequences of non conforming is set out in Section 109. Such

party in that instance, if he is the Plaintiff, is liable to have his

action dismissed for want of prosecution. If he be the Defendant

he is liable to have his answer struck off and to be placed in the

same position as if he had not filed answer in the said case. In

addition such party would be guilty of contempt of Court.

Further steps regarding Documents before Trial Sections 111 to

120 CPC set out these further steps.

ISSUES

A civil case proceeds to trial on the issues framed. All areas in a case

where parties are in dispute would form the basis for issues. The

ultimate responsibility with regard to framing of issues would lie

with the Court. This was affirmed in Padmawathie vs. Jayasekera

1997 1 SLR 248. While I was Additional District Judge, Colombo, I

believe it was in my Court that the practice of each party

preparing and handing over issues in writing to Court, with copy to

the other side, was started. This enabled both sides to see where

the differences were. Section 146(1) CPC says that "if the parties are

agreed as to the question of fact and of law to be decided between

them, they may state the same in the form of an issue and the

Court shall proceed to determine the same". Obtaining the issues

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in writing with notice to each other enabled Court to identify the

areas of agreement and dispute. If it was found that parties were

not agreed then the Court in terms of Section 146(2)CPC proceeded

to peruse the Plaint, Answer, replies to interrogatories delivered in

the action and on the basis of documents produced by either

party framed the issues on which the right decision of the case

appeared to depend. Yet when issues are recorded there is a

possibility that either party may object to the other party's issues.

An objection can be raised that the issues suggested alter the

nature of the action. It might be said that the issues suggested

are irrelevant. The Court must then go through the issues and

make its order immediately. It was said in Delpachitra vs.

Thamitagama 1986 3 Colombo Appellate Law Reports 63, that the

Court cannot postpone making its finding on the objections raised,

at the end of the case. It was held in Avudaiappan vs. Indian

Overseas Bank 1995 2 SLLR 131, that the simple test was to

ascertain whether the issue makes the dispute clear and helps the

Court to come to a correct decision.(See also Bank of Ceylon vs.

Che"appapillai 64 NLR 25; Lanka Orient Leasing Company vs. Ali

1999 3 SLLR 109; Gordon Frazer and Company Ltd. vs. Lady

Gimara Fernando 1980 2 SLLR 07 and Adlin Fernando vs. Lionel

Fernando 1995 2 SLLR 25).

The question is raised often whether issues must be strictly based

the pleadings. A long line of judicial authorities conclude that there

is no requirement under our law that issues must be strictly

confined to the pleadings. A Court is expected to examine the

pleadings, answers to interrogatories and the documents and then

decide what the parties intended. When objections are raised

saying the issue is extraneous to the pleadings what the Court

should decide is whether the proposed issue would help the Court

to come to a correct decision.

There are some rules relating to issues which could be

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summarized as follows-1. Issues need not be confined to pleadings.

2. Issues must have a bearing on the case presented.

3. They should be relevant.

4. They should not alter the nature of the action contemplated

by the pleadings. (Candappa vs.Ponnambalampillai-Bar Association

Law Journal-1994Vol.5,Part 2,Page3.

5. Issues should not be framed so as to present a case materially

different to the case set up in the pleadings- Gnananathan vs.

Premawardene 19993 SLLR 301

6. If issues are accepted by Court but found that the issues do

not arise from the pleadings the pleadings should then be called to

be amended.(Martin vs. Thenuwara 70 NLR 332).

7. If issues make the dispute between the parties clear and would

help Court to come to a correct decision then they should be

permitted.

8. Any objection to an issue has to be specific and should not be

vague.

9. When issues suggested by either party are at variance, the

Court must decide upon the issues on which the case should

proceed to trial. (Fernando vs. Pieris 18 NLR 55)

When issues of fact and law arise in the same action, the Court

has to decide whether there are any issues of law on which alone

the case could be disposed of. If there are any such issues the

Court must try such issues of law first. These issues would be

called as preliminary issues since they would go to the root of the

case. If at the end of the consideration of such preliminary issues

it is found that the plaintiff's case must be dismissed, the Court

could do so without recording any evidence. (Cathiravelu vs.

Oadabhoy 15 NLR 339).

In Sothiratnam vs. Annammah 50 CLW 35 it was held that for the

purpose of trying such preliminary issues the Court could

postpone the trial of the issues of fact. Unless the issues of law to

be initially considered go to the root of the case they would not be

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considered as preliminary issues. That means such issues of law

must not be issues of law in a general sense but issues on which

alone an action can be dismissed. (Muthukrishna vs. Gomes 1994 1

SLLR 1).

Thus only an issue on which alone the action can be disposed of

would be a preliminary issue. Where the issue involves the

determination on facts too then it would not be a preliminary

issue. Under such circumstances the Court should decide on the

matter only after recording evidence. (Vide Mohinudeen vs. Bank of

Ceylon -2001 1 SLLR 290; Pure Beverages Ltd.vs. Shanil Fernando

1997 3 SLLR 202 and Ramani Karunanayake vs.Girlie

Wimalaratne-2001 3 SLLR 56).

Courts have always permitted the parties to a civil action to frame

issues even at a subsequent stage of the proceedings. Such

permission is granted if the issues sought to be framed facilitates

the adjudication of the matter before Court and if no prejudice

would be caused to the other party. Such a power of the Court is

discretionary and should be exercised by Court in the interest of

justice.

Consequential Issues

The term consequential issue is not found in the Code. But it is

a term used in legal parlance when issues framed by one party

raised many other consequential issues which would become

relevant for the determination of the case.

Amendment of Issues

Section 149 CPC empowers a Court to amend the issues at any

time before passing a decree. The Section empowers Court to

frame additional issues too. In such circumstances the

paramount consideration of Court should be interests of justice. In

Hameed vs. Cassim 1996 2 SLLR 30 it was held that new issues

could arise even as a result of the evidence led. Once additional

issues are framed or when issues are amended the correct

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procedure would be to amend the pleadings too, to suit the

amended issues.

e. Filing Answer

Sections 72 to 78 deal with the preliminary steps that a

Defendant must take after receiving summons. An Answer has to

be filed by a Defendant in every regular action except where he

admits the claim of the Plaintiff. In such an instance the Court

would record such admission and give judgment in favour of the

Plaintiff. (Section 72) The scope of the provisions of Section 72

came for examination in Sivaratnam and others vs. Dissanayake

and others (2004 1 SLLR 144). Certain matters admitted in an

affidavit tendered along with the statement of objections filed in

respect of an application for injunctive relief were attempted to be

marked as admissions even though a contrary position had been

taken up in the Answer filed. It was held that such an admission

cannot be used. Justice Amaratunga said "An affidavit is written

evidence. But such written evidence cannot be used to force an

admission on the Defendants when they in their answer have

taken up a contrary position".

Requirements of a valid Answer

Section 73 to 76 sets out the requirements of a valid Answer. Apart

from the fact that the Answer must be in writing, contain the

caption and be properly stamped, the Defendant is expected to

answer all allegations of fact contained in the Plaint. When factual

matters contained in a Plaint are dealt with, a mere denial of such

matters is not sufficient. A statement admitting or denying the

several averments of the Plaint and setting out in detail plainly

and concisely the matters of fact and law and the circumstances

of the case upon which the Defendant means to rely for his

defence drawn in duly numbered paragraphs referring by number

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where necessary to the paragraphs of the Plaint are imperative as

per Section 75. Wherever a Defendant does not answer the

contents of any averment in a Plaint he is deemed to have

admitted such contents. (Vide Fernando vs. Samarakoon 49 NLR

285; Paul Perera vs. Chelliah and another 74 NLR 61).

In Wijeratne vs. Wijeratne CALA 4212003 decided on 4/8/2004 it

was held that there must be specific denial or a definite refusal to

admit. It must be unambiguous and not evasive. That meant that a

general denial of an averment or a general statement of non-

admission did not amount to specific denial. Where jurisdiction of

the Court is disputed, in terms of Section 76 it must be done

by way of a separate and distinct plea. (vide Joonoos vs.

Chandraratne 1990 2 SLLR 337). It must be taken up at the

earliest.(Vide Section 39 Judicature Act Ne: 2 of 1978) In Oliver vs.

The Ceylon Company Ltd. (3 NLR 182) it was held that an objection

to jurisdiction cannot be raised at the trial stage. (Vide also Andiris

vs. Siriya 27 NLR 70; Jalaldeen vs. Rajaratnam 1986 2 Colombo

Appellate Law Reports 201 and David Appuhamy vs. Yassassi

Thero 1987 1 SLLR 253). In Dheerasooriya vs. Vanderpooten 63

NLR 226 it was held that no objection to jurisdiction could be

raised at the stage of appeal.(Vide also Blue Diamonds Ltd. vs.

Amsterdam-Rotterdam Bank -1993 2 SLLR 249).

Claim in Reconvention

Section 75(1)(e) CPC entitles the Defendant to set up a claim in

reconvention. "A Claim in Reconvention duly set up in the Answer

shall have the same effect as a plaint in a cross action so as to

enable the Court to pronounce a final judgment in the same

action both on the original and on the cross claim." Section 75(I)(e).

A Claim in Reconvention must be of such a nature that the

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respective claims of the parties may be mutually adjusted and a

final decree entered in favour of one party or the other. The Claim

must be of such a nature that all issues between the parties could

be settled. Vide Silva vs. Perera 17 NLR 206.But it is not necessary

that the claim be in any way connected to the original claim of

the Plaintiff. (VIDE MALLIKA DE SILVA VS. GAMINI DE SILVA 1999 1

SLLR 85; MUTHUCUMARANA VS. WIMALARATNE 1999 1 SLLR 139 AND

NADARAJAH VS. DANIEL 1999 1 SLLR 240)

Replication

If the Answer contains a Claim in Reconvention the Plaintiff is

accorded a further opportunity of filing a Replication. According

to Section 79 CPC the Replication should be confined to matters

raised in the Claim in Reconvention of the Defendant. All rules

under Section 75 CPC relative to the form and substance of an

Answer ought to be complied with when filing a Replication. A new

matter amounting to a new cause of action cannot be introduced in

a Replication.

( COO RAY VS. JAYAWARDENE 43 NLR 427; ALSO DE MEL VS. THENUWARA

30 NLR 391).

List of witnesses and documents will be dealt in the presentation and

have not been included here.

End.

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