SISIRA SUSANTHA Vs. INDIAN OVERSEAS BANK PLC AND ANOTHER

SISIRA SUSANTHA
Vs.
INDIAN OVERSEAS BANK PLC AND ANOTHER

SUPREME COURT
AMARATUNGA, J.,
EKANAYAKE. J AND
SURESH CHANDRA, J
S.C. APPEAL No 108/2011
SC (LA) No. SC (HC) LA 47/11
COMMERCIAL HIGH COURT CASE No. HC (CIVIL) 105/2002(1)
NOVEMBER 29TH, 2011

Civil Procedure Code - Section 21 - Addition of Parties - Amendment of Plaint - Section 93(2) - Amendment of Pleadings - Delay

The question that arose for consideration before the Supreme Court was the law relating to amendment of a plaint, in that whether Section 93 of the Civil Procedure Code was applicable or whether Section 21 applies. It is to be noted that since there was a change in circumstances relating to the case, as the 1st Respondent had sold the property in question to the 2nd Respondent after the enjoining order obtained initially by the Appellant had been dissolved and since the Appellant was challenging the vesting of the property in the 1st Respondent, it became necessary to bring the 2nd Respondent as a party to the action. The Court directed to amend the caption accordingly, but when the Appellant moved to amend the plaint, made order refusing the amendment citing Section 93 of the Civil Procedure Code.

Held:

(1) The learned Judge of the Commercial High Court by applying Section 93 (2) of the Civil Procedure Code to base his order, erred in law as the application to amend the plaint with the addition of the new party would not come within the purview of Section 93 (2) of the Civil Procedure Code.

(2) The direction by the learned Judge to submit facts in terms of Section 93 (2) of the Civil Procedure Code was not necessary as the relevant section regarding the amendment of the plaint when adding a party is Section 21 of the Civil Procedure Code.

(3) The learned trial Judge erred in refusing to accept the amended plaint and proceeding to trial.

Appeal from an order of the Commercial High Court.

S.A.Parthalingam, PC, with C.Liyanapatabendi for the Plaintiff - Petitioner - Appellant

Harsha Zosa, PC, with V. Puvitharan for Defendant - Respondent.

Cur.adv.vult

March 5, 2012

SURESH CHANDRA J,

This is an appeal against an order of the Commercial High Court regarding an application made by the Appellant to amend the plaint after adding a party Initially the Appellant as the Administrator of the estate of the late J.P.I Piyadasa, instituted action in the District Court of Colombo seeking a declaration that the said J.P.I. Piyadasa was the lawful owner of premises No. 432, Sri Sangaraja Mawatha, Colombo 10 which had been advertised for sale by the 1st Respondent, to have the Resolution passed by the 1st Respondent as void and bad in law, for a declaration that Mortgage Bond No 1975 dated 17.11.1982 was void and could not be enforced, to set aside and postpone the sale of the said property which had been scheduled to be sold, an enjoining order and/or interim injunction preventing the auction sale of the said premises An enjoining order had been issued by the District Court as prayed for by the Appellant. Thereafter the case had been transferred to the Commercial High Court. After an inquiry regarding the extension of the enjoining order, Court had refused to extend same The 1st Respondent had thereafter sold the property in question by Public Auction and since there were no other buyers the said property was purchased by and vested with the 1st Respondent Thereafter the 1st Respondent had sold the said premises to the 2nd Respondent Thereupon the Appellant sought to add the 2nd Respondent as a party to the said action and Court had directed that notice be given to the said Respondent The 1st Respondent had not objected to the said application to add the 2nd Respondent and the Court had directed the Appellant to amend the caption of the plaint. Thereafter the Appellant had tendered to Court the amended caption together with a motion moving to amend the plaint. Subseq

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