WANIGASINGHE VS. JAYARATNE

WANIGASINGHE VS. JAYARATNE

COURT OF APPEAL
BASNAYAKE.J
CHlTRASIRI.J
CALA 294/005 (LG)
DC RATNAPURA 18166/MR
OCTOBER 15, 2009
MAY 11,2010
JULY 26,2010

Civil Procedure Code - Section 146 - Raising of Issues - Is it restricted to the pleading? - Pure questions of Iaw - Should Court accept such issues?

The trial Judge permitted the defendant to raise an issue though there was no averment found to that effect in the pleadings filed. The plaintiff sought and obtained leave.

It was contended that the defendant cannot raise the issue in the manner suggested unless the answer is amended to include the matters raised therein.

Held:

(1) Plain reading of Section 146 docs not impose a blanket prohibition to frame issues on the matters that have not been averred in the pleadings filed in the case. The object of the legislature in having Section 14h had been to allow the issues on which the right decision of the case appears to the Court to depend.

Per Chitrasiri.J

"Line of authorities permit a trial Judge to allow an issue to be raised though the matters contained therein had not been pleaded when justice demands it and also to arrive at the right decision of the case at the same time while adhering to the said position of

the law, Courts have repeatedly held that issues cannot be raised preventing the opposing party being taken up by surprise of the facts raised in the case".

(2) In thc instant case the defendant was fully aware of the contents of the agreement in issue therefore the matter that was raised viz the alleged penal clause W8S within the knowledge of the defendant even before filing of this action. There is no element of surprise.

(3) It is clear that, the matters raised are pure question of law. Court should accept issues concerning pure questions of law though such matters are not pleaded.

AN APPLICATION for Ieave to appeal from an order of the District Court of Ratnapura with leave being granted.

Cases referred to:-

1. Silinduhamy vs. Weerapperuma 56 NLR 182 at 196

2. Jayawardane vs. Amerasuriya 20 NLR 289

3. Silva vs. Obeysekera 24 NLR 97

4. Brampy Appuhamy vs. Gunasekara 50 NLR 253

5. Marfer vs. Thenuwara 70 NLR 332

6. De Alwis vs. De Alwis 76 NLR 444

7. Gnanarathan vs. Premawardane 1999 3 Sri LR 301

8. Ranasinghe vs. Somawathie and others 2004 2 Sri LR 159

9. Candappa vs. Ponnambalampillai BALJ 1994 Vol 5 Part 2 - page 3

10. A. G. vs. Smith 8 NLR 241

11. Mackinnon Mackenzie & Co vs. Grindlays Bank Ltd. 1982 - 2 Sri LR 212

12. Nadarajah. vs. Ramesh. 1991 1 Sri LR 240

13. Hameed. vs. Cassim  1922 2 Sri LR

14. Lanka Orient Leasinq Company Ltd  vs. Ali and. another  1999- 3 Sri LR 109

15. Herath vs. Jayasinqhe BALJ 2008 page 93

Navin Marapana with Nishanthi Mendis for plaintiff petitioner

M.V.M. Ali Sabry with Shamith Fernando for defendant-respondent.

December 09th 2010

CHITRASIRI, J.

    Plaintiff-petitioner (hereinafter referred to as the plaintiff) filed this application seeking to set aside an order made by the learned Additional District Judge of Ratnapura which is dated 14thJuly2005, On that day being the date of the commencement of the trial learned Additional District Judge, having considered the submissions of both parties, made order accepting an issue suggested by the defendant-respondent, (hereinafter referred to as the defendant) The issue so accepted was numbered as 10 and it reads thus:

    Being aggrieved by the said order of the learned Judge, plaintiff filed this application and moved that leave be granted to proceed with the same. Consequently, this Court granted leave and the matter was then fixed for argument, Thereafter, both Counsel made their submissions on the matter.

    Learned Counsel for the plaintiff argued that the aforesaid issue raised by the respondent should not have been accepted by Court since no averments arc found to that effect in the pleadings filed. He also submitted that it would lead to ch

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