SUNNY RODRIGO

Vs.

KINGSLEY RODRIGO AND OTHERS

SUPREME COURT
MALALGODA, J.
GOONERATNE, J.
SAMAYAWARDHENA,J.
SC/APPEAL/24/2020
SC/HCCA/LA/434/2018
WP/HCCA/NEG/LA/23/2018
DC NEGOMBO 7143/L
MARCH 18, 2021

Civil Procedure Code, sections 18, 21, 80, 93(1), 93(2)-Amendmentof pleadings-Day first fixed for trial

The plaintiff by plaint dated 05.11.2008 filed action in the District Court against the defendant seeking several reliefs. On 20.10.2009, the plaintiff made an application to court to amend the plaint. Although this was allowed, he did not file an amended plaint. By petition dated 04.05.2010, the plaintiff made an application in terms of section 18 of the Civil Procedure Code to add parties, which was allowed. The case was called on 20.01.2015 in open court and the trial was fixed for 30.04.2015. On the date first fixed for trial, i.e. 30.04.2015, on an application made by the plaintiff, the case was taken out of the trial roll in order for the plaintiff to take out a commission. After several days of court sittings, the District Court fixed the case for the pre-trial hearing on 27.02.2018. On 21.02.2018, the plaintiff filed an amended plaint and the defendant objected. The District Court allowed the amendment and on appeal the High Court affirmed it. The defendant appealed to the Supreme Court.

Held:

1. The order made fixing the date of trial in terms of section 80 of the Civil Procedure Code becomes the "day first fixed for trial" within the meaning of section 93(2) of the Civil Procedure Code.

2. The position of the plaintiff that the day first fixed for trial is not necessarily the first day on which the case is first fixed for trial and includes any day to which the trial is postponed cannot be accepted.

3. If an application is made to add a party as a defendant after the first day of trial, sections 18, 21 and 93(2) of the Code have to be read together in allowing or refusing such application.

4. The amendment of pleadings on or after the first day of trial can now be allowed only in very limited circumstances. The court is constrained from allowing an application for amendment unless it is satisfied that grave and irremediable injustice will be caused if the amendment is not permitted and the party applying is not guilty of laches.

5. The doctrine of laches is based on the maxim that "equity aids the vigilant and not those who slumber on their rights." The outcome is that a legal right or claim will not be enforced or allowed if a long delay in asserting the right or claim has prejudiced the adverse party.

6. There was a delay of about 10 years on the part of the plaintiff to move for the amendment of the plaint. Taking in to consideration the delay and the circumstances peculiar to this case, the amended plaint, if permitted, would cause grave prejudice to the defendant. The application to amend the plaint should be rejected in terms of section 93(2) of the Civil Procedure Code.

7. The fact that the defendant did not object to the case being taken off the trial roll on 30.04.2015 cannot be held against the defendant.

Cases referred to:

1. Colombo Shipping Co Ltd v. Chirayu Clothing (Pvt) Ltd [1995] 2 Sri LR 97

2. Karunaratne v. Alwis (2007] 1 Sri LR 214

3. Sri Lanka Savings Bank v. Global Tea Lanka (Pvt) Ltd and others (SC/APPEAL/171/2015, SC Minutes of 12.06.2019)

4. Kuruppuarachchi v. Andreas [1996] 2 Sri LR 11

5. Ceylon Insurance Co Ltd v. Nanayakkara and another [1999] 3 Sri LR 50

6. Maseena v. Sahud and another [2003] 3 Sri LR 109

7. Siripura Hewavasam Pushpa v. Leelawathie Bandaranayake and three others [2004] 3 Sri LR 162

8. Kanagaraj v. Alankara [2010] 1 Sri LR 185

9. Gunasekera and another v. Abdul Latiff [1995] 1 Sri LR 225 at 232

10. Paramalingam v. Sirisena and another [2001] 2 Sri LR 239

11. Nimalraj v. Thamarajah and others [2005] 3 Sri LR 309

12. Rushantha Perera v. Wijesekara [2005] 3 Sri LR 105

13. Avudiappan v. Indian Overseas Bank [1995] 2 Sri L