CITY PROPERTIES (PVT) LTD V EDIRISINGHE

CITY PROPERTIES (PVT) LTD. V. EDIRISINGHE

SUPREME COURT
TILAKAWARDANA, J.
SRIPAVAN, J. AND
IMAM, J.
S.V. (CHC) APPEAL NO. 34/2008
S.C.H.C.L.A 18/2008
COMMERClAL HIGH COURT
CASE NO. HC (CIVIL) 47/2006 (01)
FEBRUARY 18TH, 2010

Civil Procedure Code - Section 46(2) - Court may reject the plaint, when the plaint having been returned for amendment with in a time fixed by the court is not amended with in such time - Section 93 - Wide discretion to Court to amend the pleadings.

The Plaintiff - Respondent based his action on an oral agreement which he alleged to have been entered into with the Defendant - Petitioner. When the matter was taken up for trial, the Petitioner objected to issue No.2 raised by the Respondent on the ground that the plaint did not disclose either the date of the oral agreement or the identity of the person with whom such agreement had been entered into. Thereupon the learned High Court judge made the order marked 'A6' Wherein the learned Judge rejected the proposed issue No.2 as the date or the approximate period during which the agreement was entered into or the identity of the authorized representative of the Petitioner with whom the oral agreement was entered into was not specified with clarity in the plaint.

The Respondent did not prefer an appeal against the said order, but sought to amend his plaint. The Court allowed the amendment sought by the Respondent. One of the requirement of 'A6' is the disclosure of the name of the Petitioner's purported representative with whom the Respondent claims to have entered into an oral agreement. The Respondent did not amend the plaint in accordance with the direction given by Court.

Held:

(1) A party who had failed to comply with the order made by Court, cannot seek the protection of law thereafter on the same cause of action. He has to face the consequence of non-compliance.

(2) The provisions contained in Section 93 of the Civil Procedure Code grants a wide discretion to Court to amend the pleadings. Its discretionary power must, however, be exercised subject to the limitations set out in Section 46(2) of the Civil Procedure Code that no amendment is to be made which has the effect of converting an action of one character into an action of another or inconsistent character.

(3) The Appellate Court would be hesitant to interfere with the exercise of such a discretion by the trial Judge. This discretion could be viewed from the perspective of the flexibility and the choice granted to the trial Judge based upon a consideration of all factors involved. This judicial discretion of the Court must be exercised so as to do justice in a case that is being tried with the ascertainment, declaration and enforcement of the rights and liabilities of the parties as they exist or are deemed to exist at the time the proceedings were instituted.

(4) It is the duty of the Court to consider the issues already raised and to allow any fresh issues to be formulated based on the clarification sought by Court only if such a course appears to Court to be in the best interest of justice.

APPEAL from an order of the Commercial High Court of Colombo exercising Civil Jurisdiction.

Harsha Amarasekera with Kanchana Pieris for Defendant - Petitioner

Kuvera de Soysa for Plaintiff- Respondnet.

Cur.ade. vult.

June 2nd 2011

SRIPAVAN, J.

    The Plaintiff-Respondent (hereinafter referred to as the Respondent) instituted an action in the District Court and against the Defendant-Petitioner (hereinafter referred to as

the Petitioner) seeking to recover a sum of Rs. 12 Million as Commission/brokerage fees due to the Respondent in respect of a sale of a particular property. Upon an objection being raised by the Petitioner to the jurisdiction of the Court, the case was transferred to the High Court of the Western Province exercising civil jurisdiction. The Petitioner filed answer and took up the position that the R

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