KANAGARAJ VS. ALANKARA

KANAGARAJ VS. ALANKARA

COURT OF APPEAL
ERIC BASNAYAKE J.
CHITRASIRIJ.
CALA 33/2007
DC COLOMBO 20660/L
SEPTEMBER 14,2007
APRIL 23, 2007

Civil Procedure Code amended by Acts Nos 79 of 1988, 9 of 1991 - Section 93 of Pleadings -Law after the 1991 amendment to Section 93 - Rei vindicatio - action - Burden of proof? - Date first fixed for trial?

The trial Judge refused to accept the amended answer of the 1st defendant.

In the rei vindicatio action filed against the 1st, 2nd and 3rd defendants, the plaintiff pleaded that his predecessors in title became the owner of the larger land and he purchased a portion of the property. The plaintiff contended that, the 2nd defendant had begun to use a portion of the property.

The 1st and 2nd defendants filed separate answers - the 1st defendant states that he purchased the land from a third party and that he had leased the land to the 2nd defendant. After the trial was postponed, and before the case was taken up for trial, the defendant sought to amend the answer. By the amendment, the 1st defendant sought to dispute the corpus admitted previously and describe the title of the 1st defendant. This was rejected by the trial Judge on the ground that the 1st defendant has admitted the corpus, and that it is not necessary for the 1st defendant to describe in detail his title.

On leave being sought,

Held:

    (1) The Law had undergone tremendous changes Section 93 of the Code was amended by Act 79 of 1988 and later by Act 9 of 1991 -

the wide discretion enjoyed by Court has been restricted. The discretion is allowed to be exercised only to applications made before the day fixed for trial.

(2) Amendments on or after the first date of trial can now be allowed only in very limited circumstances - namely when the Court is satisfied that grave and irremediable injustice will be caused if the amendment is not permitted and the party is not guilty of laches.

Held further:

(3) In a Rei Vindicatio action it is the duty of the plaintiff to prove his title. If the plaintiff fails to prove his title, action will he dismissed. If the defendant has a title he could plead it and pray for a declaration. The 1st defendant only seeks a dismissal of the action in the answer and in the proposed amended answer - thus by disallowing the amendment the defendant would lose nothing. At the time of filing the answer, the 1st defendant was well aware of what the 1st defendant now wants in the amendment. No explanation is offered for his failure not to mention them in the answer. What is contemplated by Section 93 (2) are those necessitated due to unforeseen circumstances.

Per Eric Basnayake, J.

"The fact that the trial did not commence has no bearing. What is important is the date first fixed for trial".

APPLICATION for leave to appeal from an order of the District Court of Colombo.

Cases referred to:-

1. Abeywardane vs. Euginhamy 1984 - 2 Sri LR 23 1 (distinguished)
2. Seneuiratne vs. Chadappa -20 NI,R 60 (distinguished)
3. Colombo Shipping Co. Ltd vs. Chiraya Clothing pvt.) Ltd. - 1995 - 2 Sri LR 97
4. Silva vs. Goonetilake -32 NLR 217
5. Hamine vs. Appuhamy - 52 NLR at 49-50
6. Muthusamy vs. Senauiratne - 31 CLW 91
7. Myaka vs. Haveman - 1948 - 3 SA 457

8. Jeena vs. Minister of Lands - 1955 - 2 SA 380
9. Avdiappa vs. Indian Oversees Bank - 1995 - 2 Sri LR 13
10. Kumppu Arachchi vs. Andreas - 1996 - 2 Sri LR 11
11. Ceylon Insurance Co. Ltd vs. Nanayakkara - 1999 - 3 Sri LR 50

Ikram Mohamed PC with M S. A Wadood for 1st defendant - petitioner.

J. P. Gamage with K. H. D. Priyadharshani for plaintiff-respondent.

Cur.adv.vult

May 05th 2010
ERIC BASNAYAKE J.

    The 1st defendant-petitioner (1st defendant) is seeking to have the order dated 23.1.2007 of the learned Additional District Judge of Colombo set aside. By this order the learned Judge had refused to accept the amended answer of the 1st defendant.

    This is a rei uindicatio action filed on

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