1964 Present: Basnayake, C.J., Abeyesundere, J., and
Sri Skanda Rajah, J.

S. THIRUMALAY and another, Appellants, and
P. KULANDAVELU, Respondent

 S. C. 106/61 (Inty.)-D. C. Hatton, 5907

Pleadings-Amendment of plaint-Scope-Alternative cause of action-No provision for pleading it-Civil Procedure Code, ss. 36, 46, 93.

      Plaintiff filed a plaint basing his action on a contract of partnership. He sought to amend the plaint subsequently by adding an alternative cause of action based on trust.

     Held, that a plaint cannot be amended so as to convert an action of one character to an action of another and inconsistent character.

     Held further, that, while section 36 of the Civil Procedure Code permits a plaintiff to unite in the same action several causes of action, there is no provision in the Code for pleading causes of action in the alternative. The Court has therefore no power to amend a plaint by adding an alternative cause of action.

APPEAL from a judgment of the District Court, Hatton.

                    H. W. Jayewardene, Q.C., with L. C. Seneviratne and I. S. de Silva, for the defendants-appellants.

                   C. Ranganathan, with M. T. M. Sivardeen and Mark Fernando, for the plaintiff-respondent.

June 2, 1964. BASNAYAKE, C.J.-

     The plaintiff-respondent instituted this action on 2nd May 1960 against the defendants-appellants for the recovery of a sum of Rs. 5,000. The material statements in the plaint are as follows :-

             " 2. Prior to the dates material to this action S. Thirumalay, S. K. Sellamuttu, P. Ramasamy, V. Vaithilingam, P. Tharmalingam Nadar and S. Thangiah Nadar were carrying on business together under the name, style and firm of " S. T. T. R. V. Thirumalay & Co." at No. 42 Tillicoultry Bazaar, Lindula.

               3. On or about the 17th day of December 1954, the plaintiff above-named joined the said business having contributed as his capital an aggregate sum of Rs. 3,250.00.

              4. At all times material to this action the said business was carried on by the plaintiff and the defendants, the others mentioned in paragraph 2 above having from time to time retired from the said business.

              5. On or about the 22nd day of June 1958 the plaintiff above named gave notice to the defendants that he would cease to be a partner of the said Firm as from the 30th day of September 1959.

              6. The defendants agreed and undertook to pay to the plaintiff his capital and share of profits after going into the accounts.

             7. On the 1st day of September 1959 the defendants wrongfully and without notice to the plaintiff intimated to the Registrar of Business Names that the plaintiff was no longer a partner of the said Firm and had the plaintiff's name expunged from the said Register.

            8. Notwithstanding their undertaking to pay to the plaintiff his capital and share of profits the defendants have failed and neglected to pay the said sum to the plaintiff though thereto often demanded.

            9. Apart from his capital of Rs. 3,250.09 the plaintiff estimates his share of the profits upto date at Rs. 1,750.00 -which aggregate sum of Rs. 5,000.00 or any part thereof the defendants have failed and neglected to pay."

         The defendants filed answer denying that a cause of action had accrued to the plaintiff and pleaded that on the averments contained in the plaint the plaintiff was not entitled to maintain this action as the partnership agreement pleaded was of no force or avail in law as it was not in writing (s. 18 (c) Prevention of Frauds Ordinance). That answer was filed on 6th September 1960. The case was fixed for trial on 24th January 1961. On that day the Procter for the plaintiff moved for a postponement of the trial on the ground that he wished to amend his plaint. The learned District Judge made order-" Take case off trial roll. Call c