Daryanani V. Eastern Silk Emporium Ltd.

1963 Present: Sansoni, J., and L. B. de Silva, J.

R. J. DARYANANI, Appellant, and EASTERN SILK
 EMPORIUM LTD., Respondent

S. C. 41/61 (Inty.)-D. C. Colombo, 23,565/S

Pleadings-Application to amend plaint-Scope of power of Court to grant it- Discretion of Court-Rules of practice regarding the exercise of the discretion- Addition of a new or alternative cause of action-Permissibility-Amendment before hearing of action-Permissibility-Civil Procedure Code, ss. 46, 93.

           In the exercise of the discretion vested in Court by section 93 of the Civil Procedure Code regarding amendment of a plaint the Court should take into consideration well-established rules of practice. The rules should not be treated as though they were statutory rules or provisions of positive law of a rigid and inflexible nature. The two main rules which have emerged from the decided cases are :-

     (i) the amendment should be allowed if it is necessary for the purpose of raising the real question between the parties; and

    (ii) an amendment which works an injustice to the other side should not be allowed.

       There is no rule that only slips or accidental errors are to be corrected. The Court has power to permit a plaintiff to plead an alternative cause of action by way of amending his plaint, if no injustice can possibly result to the defendant and so long as the amendment does not have the effect of converting an action of one character into an action of another and inconsistent character. (Lebbe v. Sandanam (1963) 64 N. L. R. 461, discussed and distinguished.)

          An amendment of a plaint may be allowed under section 93 of the Civil Procedure Code before the hearing of the action. (Observations to the contrary in Lebbe v. Sandanam (1963) 64 N. L. R. 461, disapproved.)

           The plaintiff sued the defendant by summary procedure to recover a certain sum of money due on a cheque. The defendant obtained leave to appear and defend unconditionally. Thereafter, the Court allowed an application made by the plaintiff to amend his plaint by pleading an alternative cause of action for goods sold and delivered for the same amount.

   Held, that the Court was correct in allowing the alternative cause of action to be pleaded. " An amendment seeking to add a new or alternative cause of action, which is so germane and so connected with the original cause of action, should be permitted. The real subject matter being the indebtedness, no prejudice can arise from an amendment which raises such an issue. "

Per SANSONI, J.-  " With regard to the addition of a new cause of action, which is the amendment that was applied for in Lebbe v. Sandanam ................... I am unable, for the reasons I have already given, to subscribe to an I absolute and inflexible rule that in no circumstances may a new cause of action be added."

Per L. B. DE SILVA, J.-" The statement of the learned Chief Justice (in Lebbe v. Sandanam) laying down what may appear to be rules for the exercise of the discretionary power of the Courts under section 93 (of the Civil Procedure Code) are not rules of law binding on our Courts,"

     APPEAL from an order of the District Court, Colombo.

                            Nimal Senanayake, for the Defendant-Appellant.

                           C. Ranganathan, for the Plaintiff-Respondent.

Cur. adv. vult.

April 4, 1963. SANSONI, J.-

         The plaintiff brought this action by summary procedure to recover a sum of Rs. 7,449/96 upon a cheque drawn in his favour by the defendant. The defendant applied for and obtained leave to appear and defend unconditionally. The plaintiff thereafter moved to amend his plaint, filing an amended plaint at the same time. This procedure was wrong, because the plaintiff should have first set out the amendments he wished to make and the defendant should have been given an opportunity to object to them.

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