1963 Present: Basnayake, C. J., Abeyesundere, J., and G. P. A. Silva, J.

LEBBE, Appellant, and SANDANAM, Respondent

S. C. 127159-D. C. Kandy, 7457 /MR

    Pleadings-Amendment of plaint-Scope of the power of Court to amend plaint-Distinction between amendment and alteration-
Civil Procedure Code, ss. 21,38, 46 (2), 93.

Sections 21, 28, 46 (2) and 93 of the Civil Procedure Code provide for amendment of the plaint in each of the cases specified in those sections, Except in section 93 the burden of making the amendment is imposed on the plaintiff. In section 93 the power to amend is conferred on the Court. The Court may not exercise that power before the hearing of the action or after final judgment.

The power conferred on the Court by section 93 of the Civil Procedure Code is the limited power of amendment. The word " amend " means, in legal procedure, the correction of an error. The Court's power is therefore limited to the correction of errors (of both commission and omission) in pleadings. As the power is limited to the correction of errors, it follows that the Court has no power to make alterations-

(a) which set up a new case,

(b) which have the effect of converting an action of one character into an action of another character,

(c) which have the effect of taking the action out of the provisions governing the limitation of actions in the Prescription Ordinance or any other enactment of law,

(d) which have the effect of the addition of a new cause of action,

(e) which have the effect of prejudicing the rights of the other side existing at the date of the proposed amendment, and

(f) which have the effect of changing the substance or essence of the action.

When seeking the aid of English decisions for the solution of questions under section 93 of our Code, it is well to examine the specific rule or provision of law which the particular decision whose aid is invoked seeks to interpret or give effect to. There are material differences between section 93 and the corresponding English Orders and Rules.

Plaintiff was a businessman who was engaged in several kinds of business such as dealing in estate lands, running 'cinemas, and lending money. On 26th August 1958 he instituted the present action in which he sought to recover from the defendant a sum of Rs. 15,000 which he alleged he had loaned to the defendant. The trial commenced on 28th July 1959, and on that day the chief issue framed was whether the defendant borrowed from the plaintiff and the plaintiff lent and advanced to the defendant the sum ? The defendant, while admitting the receipt of the sum, denied that the money was a loan and claimed that it was an advance given by the plaintiff towards the purchase from the defendant of an estate called Hyndford Estate, in respect of which transaction, an action filed by the plaintiff against the defendant was already pending. On 20th August 1959 the plaintiff, while he was still under cross-examination, moved that the plaint be amended so that he might take up the alternative position that, in the event of it being established that there was no money lending transaction, the sum of Rs. 15,000 was due to him as an advance paid by him to the defendant towards the purchase of Hyndford Estate.

Held, that the plaintiff was not entitled to amend his plaint in terms of the motion of 20th August 1959. The amendment that was sought was not for the purpose of correcting any mistake, defect, slip or omission but to bring into the pleadings a case which the plaintiff himself had repudiated in his evidence. The amendment was designed to meet a situation which might arise if the defendant succeeded in establishin