The court can allow amendment of pleadings even after the limitation period if it does not change the cause of action and prevents injustice to the rightful claimant.

Headnote:(A) Rules of High Court 1980 - Order 20 - Amendment of pleadings - A firm must be sued in the name of its sole proprietor; amendment sought from 'Petroserv General Trading Establishment' to 'Sheikh Khaled Bin Jassem Bin Mohammad Jassem Al-Thani trading as Petroserv General Trading Establishment' allowed as it is a mere procedural amendment with no change in cause of action. The amendment is bona fide and does not prejudice the defendant. (Paras 1, 2, 5, 6, 7)

(B) Limitation period - The court has discretion to allow amendments after the expiry of the limitation period provided the new cause of action arises from the same facts; no prejudice to the defendant as the amendment does not change the essential character of the suit (Paras 5, 6, 8).

Facts of the case:
The plaintiff sought to amend its title during the trial to correctly reflect the sole proprietor's name, asserting that a firm cannot be sued in its own name. The defendant argued that the amendment was prejudicial and out of time.

Findings of Court:
The amendment is necessary to accurately name the plaintiff, with no unfair prejudice to the defendant, who was aware of the plaintiff's actual status.

Issues: Whether the amendment was necessary and if it imposed any prejudice against the defendant's ongoing appeals.

Ratio Decidendi: The court emphasized the importance of justice over technicalities, allowing the amendment to prevent injustice to the rightful claimant while maintaining the same cause of action.

Result: Application for amendment allowed.

Table of Content
1. amendment of plaintiff's name in title. (Para 1)
2. court's discretion on proceedings of amendment. (Para 2 , 3)

[1] This appeal arose from an oral application by the plaintiff to amend the title and para 1 of the statement of claim in the course of the trial on 14 March 2012 during the examination-in-chief of the first and sole witness for the plaintiff. The amendment is on the name of the plaintiff in the title of the suit from 'Petroserv General Trading Establishment' to 'Sheikh Khaled Bin Jassem Bin Mohammad Jassem Al-Thani Berniaga Sebagai Petroserv General Trading Establishment' and in para 1 of the statement of claim by deleting the words 'sebuah syarikat yang diperbadankan di Doha, Qatar' and substituting it with 'seorang individu yang berniaga di bawah nama Petroserv General Trading Establishment'. This amendment is necessary as a firm cannot sued in its own name although it may be sued in such name. It must therefore be sued in the name of the sole proprietor of the firm; see Wee Tiang Kheng & Ors v. Ngu Nii Soon & Ors, 1989 MarsdenLR 1150 . The main ground of objection from the defendant is that the amendment, if allowed, will render their appeal against their O 14A application which had been dismissed by the court, nugatory or defeat their appeal based on the pleadings. In brief, the defendant is altering that the amendment is prejudicial to them. It was also contended that such amendment is after the expiry of the limitation period.

Findings Of The court

[2] O 20 of the Rules of the High 1980 ('RHC') gives the court a discretion to allow leave to amend pleadings which must of course be exercised judicially (see Kam Hoy Trading v. Kam Fatt Tin Mine ; [1963] MLJ 248 ): per Mohd Azmi FCJ in Yamaha Motor Co Ltd v. Yamaha (Malaysia) Sdn Bhd & Ors; 1983 MarsdenLR 38 ; [1983] CLJ (Rep) 428 where the Federal court laid down the cardinal principles of law pertaining to amendment of pleadings as follows:

Three basic questions should be considered to determine whether injustice would or would not result:

(1) whether the application is bona fide;

(2) whether prejudice caused to the other side can be compensated by costs; and

(3) whether the amendments would not in effect turn the suit from one character into a suit of another and inconsistent character.

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2012 MarsdenLR 1094

HIGH COURT MALAYA PULAU PINANGSHEIKH KHALED JASSEM MOHAMMAD JASSEM AL-THANI – AppellantVersusMERBOK HILIR BHD – Respondent[Civil Suit No: 22-616-2006]

The court can allow amendment of pleadings even after the limitation period if it does not change the cause of action and prevents injustice to the rightful claimant.

Cases Referred (2)

HIGH COURT MALAYA PULAU PINANG
SHEIKH KHALED JASSEM MOHAMMAD JASSEM AL-THANI – Appellant
Versus
MERBOK HILIR BHD – Respondent
[Civil Suit No: 22-616-2006]