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

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