SUMANASEKERA AND 2 OTHERS Vs. MOHAMMED TUWAN MOHOMMED MEEZAM

SUMANASEKERA AND 2 OTHERS
Vs.
MOHAMMED TUWAN MOHOMMED MEEZAM

SUPREME COURT
AMARATUNGA, J.,
SURESH CHANDRA, J., AND
DEP, PC, J
S.C. APPEAL No. 04/2011
SC/HCCA/LA No. 228/2010
WP/HCCA/Col/09/2008/LA
D.C. Colombo No. 37512/MR
March 9th, 2012

Civil Procedure Code - Amendment of pleadings - The purpose of the amendment is to add a party - Section 18 and Section 93 of the Civil Procedure Code - Prescription of 229 Ordinance-1871 - Section 9 applicability = Addition of a Party after decree? Is Court not functions? Addition of a party after Section presonipture period - Permitted?

This appeal raises an important issue as to the amendment of pleadings in a case before the District Court where the purpose of amendment is to add a party. The relevant sections of the Civil Procedure Code in regard to this matter are Section 18 and Section 93.

Held:

(1) The purpose of addition of parties according to Section 18(1) is to enable the Court to "effectively and completely adjudicate upon and settle all the questions involved" in an action However, the addition of a party should be subject to any positive rule of law that would be applicable in relation to the cause of action against such party sought to be added, specially relating to limitation of time as set out in Section 9 of the Prescription Ordinance.

(2) Section 18(1) would not permit the addition of a party after a decree had been entered. The Court is functus after entering the decree and had no jurisdiction to add parties.

(3) An 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.

(4) An amendment which works an injustice to the other side would not be allowed in that,

(a) which alters or which has the effect of converting an action of one character into an action of another or inconsistent character;

(b) which has the effect of taking the action out of the provisions governing the limitations of actions in the Prescription Ordinance or any other enactment of law;

(c) which has the effect of prejudicing the rights of the other side existing at the date of the proposed amendment, or which is made mala fide.

Cases referred to:

(1) Sherman De Silva and Co. Ltd. V Ariyalatha De Silva - 77 NLR 275
(2) G.L. Baker Ltd. V Medway Building and Supplies Ltd. - 1958 1 W.L.R. 1216
(3) Daryani V Eastern Silk Emporium Ltd. - 64 NLR 529
(4) Lloyd Berenger Vs. F.N. De Silva and others - CA Appeal No 884/92 decided on 16.07.1994

APPEAL from the order of the Civil Appellate High Court

Ranjan Suwandaratne, with S Tennakoon for the Defendants - Respondents - Petitioners - Appellants
A.H.G. Ameen with D.K.S. Kodagoda for the Plaintiff - Petitioner - Respondent - Respondent

Cur.adv.vult.

June 7, 2012
SURESH CHANDRA, J.

This is an appeal from the Order of the Civil Appellate High Court holden at Colombo which had affirmed the Order of the District Court of Colombo.

The Plaintiff-Respondent had filed action against the 1st and 2nd Defendants-Appellants in the District Court of Colombo to recover damages in a sum of Rs. 2,000,000/- as a result of receiving injuries due to a motor traffic accident The case? had gone ex-parte against the Appellants and judgment had been entered in favour of the Plaintiff- Respondent The said Appellants objected to the ex-parte decree and sought to set aside the said decree and moved to tender their answer The Court had held an inquiry into the said application of the Appellants and had made order setting aside the ex-parte order and allowed the Appellants to

tender their answer. Thereafter the Plaintiff- Respondent had made an application to add the 3rd Defendant-Appellant as a Defendant in terms of Section 18 of the Civil Procedure Code. The basis of the said application was that it h

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