AMENDMENT OF PLEADINGS

 AMENDMENT OF PLEADINGS- synopsis of discussion held on  16.11.2015 at the Judges Institute……. 

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 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. 

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. 

In UBERIS VS JAYAWARDENE 62 NLR 217 it was laid down  that an action in respect of one land cannot be converted into an  action in respect of another land by an amendment of pleadings.

The principle of Lawdiscussed in Abeywardene v. Euginahamy  1984 2 SLLR 231 is quite important. It is in that case emphasis  was made to the age old concept that belatedness of the  application for amendment is not a ground for refusing the  application AS FAR AS the Amendment of the plaint does not  seek to widen the scope or alter the character of the action and No  new cause of action is averred. Merely seeking to elucidate the  title in the original plaint BY THE AMENDMENT SHOULD BE  PERMITTED 

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 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 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 58 NLR 169) 

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. 

SAMARASINGHE VS PANNASARA THERA 53 NLR 271 The  two 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. 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”. 

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 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 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 991, 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 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 this 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 the encroached portion 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 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 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,  CPC and that 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, CPC.

Wigneswaran,J. emphasized in this case 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 wase 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. 

The defendant-petitioner having moved in revision the court of  appeal ruled out the opportunity for revision and stated inter lai  that the 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. A false  description does not harm if there is sufficient certainty as to the 

object, corpus or person. Further the court expressed the view  that the amendment in question consists of the correction of a  clerical error appearing only in the caption of the plaint. The  mistake is not a mistake of the identity of the man but only his  name. It does not fall within the category of the amendments  contemplated under section 93. 

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. 

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 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 NLRVol :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 

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

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

MUTTUMENIKA v. SUDUMENIKA NLRVol :45, Page: 58 

WADUGANATHAN CHETTIAR v. SENA ABDUL CASSIMNLR 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 NLRVol :60, Page: 346 WIJEWARDENE v. LENORA NLRVol :60, Page: 457 AZIZ v. THONDAMAN NLRVol :61, Page: 217 

UBERIS v. JAYAWARDENE NLRVol :62, Page: 217 EKANAYAKE v. EKANAYAKE NLRVol :63, Page: 188 

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

LEBBE v. SANDANAM NLRVol :64, Page: 461 

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

THIRUMALAY v. KULANDAVELU NLRVol :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 NLRVol :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 NLRVol :75, Page: 231 DE ALWIS v. DE ALWIS NLRVol :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