Pre trial e version (1) (1)

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SALIENT FEATURES OF PLEADINGS AND PRE-TRIAL PROCEDURES
IN CIVIL SUITS
Civil litigation in our country is becoming more prevalent and complex
and the need for effective case management is considered paramount.
Systematic pre-trial procedures can have a dramatic impact on the
Court’s ability to manage cases. Effective pre-trial procedures prevent
unnecessary delay, encourage settlement, decrease cost of litigation,
and facilitate the effective use of judicial resources.
On the contrary, ineffective pre-trial management can lead to delays
and court congestion which eventually result in the denial of justice.
When justice is denied, it is the general public who suffers most.
Hence, the objectives of this workshop inter alia are to make the
general public the ultimate beneficiary of the whole exercise and
ensure that justice is meted out to the aggrieved with the least
possible delay at an affordable cost and in a friendly atmosphere.
It goes without saying that competence in law is one of the main skills
that an attorney at law has to develop to justify the enjoyment of his
privileged position over others, as a member of a noble profession. AN
ATTORNEY-AT-LAW IS AN OFFICER OF COURT. He has special
privileges in the society. Equally he is duty bound to fulfil certain
obligations. A legal practitioner has an overriding duty to court, to the
standards of his profession, and to the public. A lethargic Bar, can be
the root cause of public discontentment, in any legal system.
In our country, legal representation in civil courts has become so
indispensable, as the Bar plays a remarkably vital role in the
dispensation of justice. This is the reason as to why persons of good
repute, competent knowledge and ability are enrolled as attorneys at
law, subject to conditions. Hence, it is the obligation of every member
of the Bar to be well acquainted with the law and its development to

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make the general public the ultimate beneficiary of the legal system of
the country.
Steps that are desirable before the institution of an action include
taking instructions from the clients before setting the law in motion.
Sometimes the plaintiff may have to give notice of action to the
defendant. (e.g.; Section 461 of the CPC). In certain other cases to
make a positive demand of the defendant to do a particular act or to
refrain from doing an act may turn out to be advantageous. The
requirement of the dispute having to be previously referred for
arbitration (if necessary) and/or mediation also will fall under the
category of steps which can be classified as conditions precedent to
the filing of an action.
TAKING INSTRUCTIONS FROM THE CLIENTS
1. This is absolutely important and should not be lightly disregarded at
any stage of the case.
2. Since many a litigants are laymen it is the duty of the attorney-at-law
to take instructions and then advise him as to the manner in which
further action should be taken.
3. Even if the instructions taken from the client disclose a good case, it is
for the attorney-at-law to decide which remedy or the course would be
desirable in the best interest of the client.
4. In all matters whether or after the institution of an action subject to
the overriding duty to assist court, an attorney-at-law must act in the
best interest of his clients.
WHAT IS REGULAR PROCEDURE AND WHAT IS SUMMARY
PROCEDURE?
Chapter 24 of the CPC describes that summary procedure should be
followed in certain type of cases. It is trite law that summary

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procedure can be followed only in cases to which it is expressly stated
that "summary procedure" is applicable.
Illustrations to section 7 of the CPC shed enough light as to the nature
of the two sets of procedures. Regular procedure contemplates on the
defendant’s right to answer the allegations made in the plaint before
the pronouncement of the judgement. Under summary procedure the
applicant supports the contents of his petition by the affidavit and
other evidence (by way of exhibits) and the court after consideration of
the same, if a prima-facie case is established immediately passes an
order on the defendant on condition that if no opposition is shown
that the order will be made absolute. This is termed as order nisi
under 377 (a) of the CPC. The court is also empowered under
summary procedure to enter interlocutory order appointing a day for
the determination of the matter of the petition and intimating to the
respondents that he will be heard in opposition. This type of orders
are made under 377 (b) of the Code.
In summary procedure therefore, proceedings are instituted by way of
petition supported with proper evidence (affidavit and documentary
evidence) enabling the court to act under 377 (a) or (b).
Regular procedure
Under regular procedure an action commences with the filing of the
plaint. In terms of section 40 of the Code, the plaint shall be set forth
in duly numbered paragraphs and distinctly written upon good and
suitable paper, disclosing the name of the court, date of filing the
plaint, the name, description, and place of residence of the plaintiff
and that of the defendant so far as the same can be ascertained, a
plain and concise statement of the circumstances constituting each
cause of action, and where and when it arose and if more causes of
action than one are set out, the statement of the circumstances

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constituting each cause of action and finally a demand of the relief
which the plaintiff claims.
The court to which the plaint is presented must be the court which
has territorial jurisdiction in terms of Section 3 of the Judicature Act
read along with the relevant determination made by the Minister by
order published in the gazette. In deciding the court where the action
has to be instituted one has to strictly adhere to Section 9 of the CPC.
Section 9 deals with the jurisdiction of court. The existence of any one
of the four matters referred to in section 9 confers jurisdiction to that
particular court. Subject to pecuniary or other limitations
prescribed by law, action shall be instituted in the court within the
local limits of whose jurisdiction
A) A party defendant resides; or
B)The land in respect of which the action is bought lies or is situate in whole or in
part or
C) The cause of action arises, or
D) The contract sought to be enforced was made.
Here, any party defendant resides means the place where any one of
the defendants resides – Hussain Vs Pieris et al 34 NLR 238.
A temporary residence of a defendant does not fall within the meaning
of this section and residence means where the family of the defendant
resides. If any doubt arises as to the permanent residence of the
defendant it may be appropriate to be guided by the electoral register,
probably the best evidence to establish the permanent residence of a
person.
It has been held in many cases that wherever, the defendant
physically resides in a place other than the place of residence of his
family, the court would look for evidence whether the defendant had

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the intention to return (animus revertendi) to the dwelling place of the
family.
Residence means the place of abode at the time when action was filed
and not where he resided thereafter - Jayamanna Vs Shabra Unico Finance
Ltd. 2001 3 SLR 321.
Where in an action instituted in a district court the defendant has not
denied in his answer the territorial jurisdiction of the court section 39
of the Judicature Act (71 of the Courts ord. then) precludes him from
raising such an objection subsequently by moving to amend the
answer.
ACTION BY AND ON BEHALF OF AND AGAINST JURISTIC PERSONS,
NATURAL PERSONS, PARTNERSHIP, SOLE PROPRIETORSHIP,
STATE, ATTORNEY GENERAL Etc.
There are two categories of persons who are entitled to have access to
a court of justice for relief and against whom relief can be sought.
They are primarily the natural persons and juristic persons. The law
does not recognise anyone other than those two categories of persons,
unless the law creates such other legal entities that can sue and be
sued. In such a case the plaint has to be filed in the designated name.
e.g. - The Council of Legal Education. When a plaint is filed by the
State, the Plaintiff would be the Attorney-General. In the case of a
Partnership, the partners have to be made plaintiffs and the name of
the Partnership needs to be mentioned in the caption. In the case of a
sole proprietorship, the plaintiff would be the proprietor of the
business and the name of the business needs to be inserted in the
caption.
CAN JURISTIC PERSONS SAID TO RESIDE AT THE REGISTERED
OFFICE

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A juristic person cannot be sued on the basis of it being resident at a
particular place- In Blue Diamond Ltd Vs Amsterdam Rotterdam Bank N.L
1993 2 SLR 249.
A liberal interpretation is permissible to include a corporate body as
residing at its registered office, where there is no other place of
business- MARTIN SILVA VS CENTRAL ENGINEERING CONSULTANCY 2003
SLR 2 228 (CA)
Although the decision in Martin Silva has provoked new
jurisprudential thinking with regard to the residence of a juristic
person, one must keep in mind that the judgement in Blue Diamond
case (supra) has been delivered by the Supreme Court.
Even if the residence of the defendant is not distinctly averred it is not
a ground to reject a plaint if the principal place of business is situated
within the jurisdiction of court- SOMASIRI VS CEYLON PETROLEUM
CORPORATION 1991 SLR 39
CONDITIONS PRECEDENT
When the jurisdiction is ousted by Statute no action is maintainable
in respect of such matters in the district court.
No action is maintainable to evict a tenant cultivator from a paddy
land by reason of the mandatory provisions of the Agrarian Services
Act No: 58 of 1979- TILLEKERATNE BANDA VS KALU BANDA (1993 1
SLLR 95)
PECUNIARY AND OTHER LIMITATIONS
Pecuniary limitations are generally interwoven with Jurisdiction. In
terms of Section 32 of the Judicature Act where the debt, damage,
demand or claim does not exceed Rs 1500/- original civil

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jurisdiction is vested in the Primary Court. But irrespective of the
value of such claims all those matters referred to in the Fourth
Schedule to the Judicature Act are taken away from the
jurisdiction of the Primary Court. For instance any action to obtain
an injunction is excluded. Vide- 4th Schedules to the Judicature Act
for the items that are specifically excluded from the jurisdiction of the
Primary Court.
FILING ACTION IN THE AREA OF THE COURT WHERE THE LAND IS
SITUATED
No confusion can arise as regard the invitation to exercise jurisdiction
based on the situation of a land. When the cause of action pertains to
a land, then the plaintiff could bring an action in respect of that land
in the court where the whole OR the part of that land is situate.
In a mortgage bond action based on immovable property should be
filed within the territorial limits of the court where the mortgaged
property is situated - DAVITH APPUHAMY V PERERA 11 NLR150
The question as to whether certain types of actions could be,
categorized as being "actions relating to land" was the subject of
interpretation in several cases. An action by a Lessee compelling his
Lessor to accept rental cannot be considered as an action relating to
land since the claim is based on the Lease Agreement. APPUHAMY VS.
GUNASEKARA 2 NLR 155
In a similar decision an action for specific performance of an
agreement to sell land was held not to be an action in respect of land
within the meaning of section 9 (b) of the Civil Procedure Code. A
Court, therefore, has no jurisdiction to try a case merely on the
ground that the land in respect of which the contract was made is

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situated within the local limits of its jurisdiction- PELIS V SILVA 60 NLR
289
The above Judgment has to be compared with the case of Ranghamy.
The plaintiff in that case sued the defendant in the District Court of
Kandy. The defendants were resident outside Kandy and the land
itself was situated outside. The District Court of Kandy was yet held to
have had jurisdiction by reason of the fact that the lease agreement
was entered into in Kandy. RANGHAMY VS KIRIHAMY 7 NLR 357.
An action for the redemption of an OTTY mortgage (where the
mortgagor reaps only the benefits or fruits of the property) and for the
release of the mortgaged land from the mortgage was considered a
dispute affecting an interest in land and therefore, be brought in the
court within the local limits of whose jurisdiction the land is situate-
NALLATHAMBI VS KURUKKAL 57 NLR 166,.
On a writ issued by the DC Negombo a land in Kurunegala was seized,
and a claim made and reported to the District Court of Negombo. The
claim being disallowed by the said Court, the claimant brought an
action, under section 247 of the Civil Procedure Code, in the Court of
Requests of Negombo against the judgment-creditor, who resided
outside the jurisdiction of such Court. It was held in that case that the
Court of Requests of Negombo had no jurisdiction to entertain the
action- WERTHELIS VS DANIEL APPUHAMY 12 NLR 196
When it is uncertain as to which local limit of a court any immovable
property would fall, or where any immovable property is located within
the territorial jurisdiction of more than one court, anyone of the courts
within whose jurisdiction the land is situated may, if satisfied that
there is "ground for the alleged uncertainty, record a statement to that
effect, and thereupon proceed to entertain and dispose of any action
relating to that property. The decree in such an action shall have the

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same effect as if the property was situated within the local limits of the
jurisdiction of such court.
2. Preparation and filing of Plaint.
Institution of civil suit under regular procedure begins with the
presentation of a plaint to court conforming to Section 40 which
requires that the plaint should contain a plain and concise
statement of the circumstances constituting each cause of action
and where and when it arose and such statement shall be set
forth in duly numbered paragraphs; and where two or more
causes of action are set out the statement of the circumstances
constituting each cause of action must be separately numbered. The
plaint must be simple, precise and short. Odgers' says that pleading
must state facts and not law. It must state material facts only. It
must state the facts and not the evidence by which they are to
be proved. It must state such facts concisely in a summarized form.
Section 46(2) deals with circumstances as to when can a court refuse
to entertain a plaint. In terms of 46(2) (a) to (f) a plaint may be
refused if it does not state correctly, and without prolixity, the several
particulars required to be specified therein, if it contains any
particulars other than those so required and/or Where plaint is
presented to a wrong court, if it is not subscribed to by the attorney-
at-law or the party concerned as the case may be, if it does not
disclose the cause of action, if it is not so framed as to afford a final
decision on the dispute or if it is wrongly framed by reason of
misjoinder or non-joinder of parties or misjoinder or non-joinder of
causes of action.
When refusing to accept a plaint the court can impose its own
conditions including a deadline before which the amendment has to
be effected. This would facilitate the plaintiff to amend the plaint so as

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to fall in line with the provisions of the law. However it must be noted
that upon the refusal of the court to entertain the plaint in terms of
section 46 (2), no amendment is permitted so as to convert an action
of one character to an action of another and inconsistent character.
Generally, in terms of section 46(2) of the CPC acceptance of a plaint
is refused before the issuance of summons on the defendant. If the
plaint had been accepted and summons issued on the defendant, it is
not a matter for the court to act under 46 (2) but for the defendant to
raise the point in his answer- MOHIDEEN VS GNANAPRAKASAM 14 NLR
33..
The question as to the fate of an insufficiently stamped plaint was
considered in a few cases. When a plaint or an answer is not rejected
by a District Judge under section 46 or section 77 of the Civil
Procedure Code for deficiency of stamps, the presumption is that the
Judge has adjudicated in favour of the party who had tendered the
pleading on the question as to the sufficiency of the stamp thereon -
JAYAWICKRAMA VS AMARASOORIYA 17 NLR 174.
The question whether the plaint should be dismissed on the ground of
insufficiency of stamps when a deficiency has been supplied was
considered in a series of decisions. The authorities on this matter are
quite clear that when the plaintiff supplies the deficiency even after
objection is taken in the answer, the court has no power to dismiss
the plaint on that account. It is well established principle of law that
the plaint cannot be dismissed on the ground of insufficiency of
stamps alone. 37 NLR 436
On the question of stamping a very important decision needs to be
adverted to here. That is the case of Sita Rajasingham. It is an
important decision and would be applicable not only to the plaint but
to the answer, application and petition filed in court under the Civil
Procedure Code. The principle laid down here was that in the absence

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of any statutory provision in relation to the petitions filed under
section 86 of the CPC, requiring that stamps should be supplied at the
time of its presentation; or that such a petition filed without stamps is
valueless and therefore should be rejected, or that such a petition
which is unstamped should not be acted upon, such a document
cannot be rejected. It was held in this case that when a petition,
affidavit and proxy filed under section 86 to purge default have not
been stamped the proper course is to call for the deficiency of stamps
to be supplied by the party who tendered that document – SITA
RAJARATNAM VS MAUREEN SENEVIRATNA 1995 2 SLR 69
Note: It was held that the decision in Sathasivan v. Cadiravel Chetti
(1919) 21 NLR 93 had been misapplied in Sita Rajaratnam’s case.
On the aspect of the failure to provide sufficient stamps or providing
insufficient stamps along with the plaint or other pleadings, it can be
concluded that neither the failure to stamp the pleadings nor the
insufficiency of stamps on the pleading will give rise to a dismissal of
the action. It is never treated as a fatal defect. The proper procedure to
be followed when pleadings are not stamped or insufficiently stamped
is to call for the stamps to be provided with and upon failure to reject
the plaint or other pleadings - YUSUF MOHAMED VS INDIAN OVERSEAS
BANK 1999 3 SLR 278 AND 1999 1 SLR 332.
ISSUE AND SERVICE OF SUMMONS ON THE DEFENDANT
Service of summons on the defendant is considered to be a significant
step during the pre-trial stage and a sacred duty. This is the only
means by which the defendant notified of the case against him and
therefore afforded the opportunity of being heard. As a matter of fact
the principle of AUDI ALTERAM PARTEM is given effect to and made
meaningful by due service of summons.

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The Summons along with a copy of the Plaint and the translation if
necessary as required, should be delivered with a precept in Form
No: 17 to Court and subsequently required to be personally served on
the defendant through the fiscal or Grama Niladari concerned.
The requirement of a proper service of summons on the defendant is
an imperative requirement under the Code. In the recent case of
Leelawathie enjoining order was served on the defendants and no
summons was served. The Plaintiff contended that the service of the
enjoining order was sufficient notice of the pending action and that
the defendant was bound to enter an appearance and file answer. This
argument was rejected and the court stressed the need to adhere
strictly to the provisions relating to service of summons. LEELAWATHIE
V JAYANERIS 2001 2 SLR 231
P Beatrice Perera Vs Commissioner of National Housing reported in 77
NLR at page 361 is a landmark judgement every lawyer should be
equipped with in the task of assisting court. The facts and
circumstances that led to this judgement are briefly referred to in the
head note itself. It reads as follows…
Where summons has not been served at all, an exparte judgment
against the defendant is void ab-initio and the defendant can
challenge its validity at any time when the judgment so obtained is
sought to be used against him either in the same proceedings or
collaterally, provided always that he has not by subsequent conduct
estopped himself by acquiescence, waiver or inaction.
The judgment discusses in detail the difference in effect between
patent want of jurisdiction and latent want of jurisdiction. The 3rd
respondent was a tenant of the petitioner. She was summarily ejected
from the rented premises under a writ of possession issued by the
Court of Requests, Colombo, following an exparte decree entered

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against her in an action in ejectment instituted by the petitioner.
Soon afterwards she filed petition and affidavit praying that the
judgment and decree entered exparte against her be vacated on the
ground that no summons had been served on her either personally or
by means of substituted service and that she had been quite unaware
of the action. After inquiry the Commissioner of Requests found that
the Fiscal's Officer who gave evidence of his efforts to serve summons
and of the substituted service on the 3rd respondent was totally
unworthy of credit. The default judgment and decree were therefore
vacated and the 3rd respondent was granted an opportunity to file
answer and defend the action. The Court, however, omitted to make a
consequential order that the 3rd respondent be restored to
possession of the premises immediately, pending the action, even
though it was the fraud of the Court's own officer-the Fiscal's Officer-
that had led to her summary ejectment. The 3rd respondent then
applied to the Commissioner of National Housing for immediate
restoration of possession of the premises to her under section 5 (2) (c)
of the Protection of Tenants (Special Provisions) Act, No. 28 of 1970
on the ground that she had been lawfully ejected " otherwise than on
an order of a competent Court". The Assistant Commissioner of
National Housing, after holding an inquiry, made order in favour of
the 3rd respondent. The present application by the petitioner was for
a Writ of Certiorari quashing the order of the Assistant Commissioner
of National Housing.
The Court held that the Assistant Commissioner of National Housing
made no error in law in holding that the exparte order of ejectment on
the basis of which the 3rd respondent was ejected was the order of a
Court not competent to make it. The order of ejectment which had
been made by the Court of Requests was void ab initio.
Service of summons on the defendant is a fundamental and
imperative requirement and a precondition before a case is fixed for

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an ex parte trial by Court. If there is non-observance of this
imperative requirement of service of summons, it cannot be said even
obliquely that the service of an order nisi on the defendant in regard
to alimony and cost under section 377 consequent to which the
defendant-appellant has entered her appearance through an
Attorney-at-Law and filed her objections along with her counter claim
for alimony making reference to the plaint amounts to sufficient
compliance under the provisions relating to service of summons. In
this case there was no service of summons. The order is not an ex
parte judgment but an order made in fixing the case for ex parte trial.
There is a wide divergence between an ex parte judgment and an
incidental order of fixing the case for ex parte trial. Section 88 (1)
would not apply. It is thus clear that no consequences would apply to
a defendant unless summons is properly served on him. JOYCE
PERERA V LAL PERERA 2002 3 SLLR 8
In another case the summons was served on the Defendant in
substituted form at his residence which was the last known place
of abode according to the Plaintiff. The Defendant was in fact at
the Mahara Prisons as last known to the Plaintiff. The service was
held to be invalid. MEERALEWAI VS. SEENITHAMBY 48 NLR 140
The facts in yet another remarkable decision (filtering out
unnecessary details) are that the defendant entered an appearance on
the summons returnable date after service of summons on him
through an attorney-at-law and moved for time to take necessary
steps including the filing of the proxy. A date was granted for the
defendant to file his objections against the notice of interim
injunction, answer and also to file proxy. Thereafter on another day
the plaintiffs moved for an order for ex parte trial on the e ground that
the defendant failed to appear on 5.4.2002 and the defendant's
attorney-at-law who was not duly authorized was not entitled to
move for time. The Supreme Court rightly held that "The Code must
be interpreted as far as possible, in consonance with the principles of

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natural justice, and the court can only be satisfied that summons
had been "duly served" where the defendant has been given a fair
opportunity of presenting his case in his answer. If not, the court has
the power to give further time for answer even if the defendant does
not ask. Held further that the order of the learned district judge
refusing to fix the matter for exparte trial is quite correct.
DHARMASENA AND ANOTHER VS THE PEOPLE'S BANK - SUPREME COURT
2003 SLR 1 122
The Rules applicable to service of summons underwent sweeping
changes in the year 1997 when the legislature in its own wisdom
introduced a new procedure with regard to service of summons by Act
No 14 of 1977. The amendment included the service of summons in
the first instance by registered post and the returnable date for
service of summons was made less than three months from the date
of institution of the action.
Section 60 of the CPC provides for the consequential steps to be
followed after the defendant is issued with summons by registered
post. Section 60 is worded as follows..
60.(1) The court shall, where it is reported that summons could not be effected by
registered post or where the summons having been served and the defendant fails
to appear, direct that such summons be served personally on the defendant by
delivering or tendering to him the said summons through the Fiscal or the Grama
Niladhari within whose division the defendant resides or in any case where the
plaintiff is a lending institution within the meaning of the Debt Recovery (Special
Provisions) Act, No. 2 of 1990, through the Fiscal or other officer authorized by
court, accompanied by a precept in form No. 17 of the First Schedule. In the case of
a corporation summons may be served personally by delivering or tendering it to
the secretary or like officer or a director or the person in charge of the principal
place of business of such corporation.
An important amendment was introduced with regard to substituted
service. Sub-Section (2) to Section 60 reads as follows…
(2) If the service referred to in the preceding provisions of
this section cannot by the exercise of due diligence be
effected, the Fiscal or Grama Niladhari shall affix the

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summons to some conspicuous part of the house in
which the defendant ordinarily resides or in the case of a
corporation or unincorporated body, to the usual place
of business or office of such corporation or such body
and in every such case the summon shall be deemed to
have been duly served on the defendant.
AMENDMENT OF PLEADINGS
The purpose of amendment of pleadings is to facilitate the proper
adjudication of the disputes. The provisions relating to amendment
of pleadings are spelt out in Section 93 of the Code. Quite
importantly, the original Section 93 was amended twice once by Act
No. 79 of 1988 and then by Act No.9 of 1991. The liberal approach
towards amendment of pleadings was restricted by the amendment.
The object, the Legislature apparently aimed at achieving by
introducing amendments to section 93 is to cut short delay in the
disposal of civil suits. This is a warning sounded to caution the bar
against negligence committed in drafting pleadings. Hence, the
Lawyers must be extremely careful in the preparation of pleadings. In
the light of the stringent provisions of the law now in force, it is of
utmost importance that lawyers are extremely cautious attitude at
the point of drafting pleadings. However, it may so happen that
matters having a bearing on the case, may come to light at a
subsequent stage of the proceedings or it could well be that a party
might by inadvertence omit to include a material fact in the original
pleadings. The primary motive in enacting Section 93 in the amended
form is to cater to the needs of such instances. However, in the
proper exercise of the discretion the court has to be on its guard to
ensure that no prejudice is caused to a party by reason of the court
having allowed an amendment.
There may not be much of a difficulty to comprehend the need to
amend the pleadings before the case is first fixed for trial. In terms of
subsection (1) of section 93 the court is vested with full power to allow

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amendments of pleadings in its discretion, by way of addition, or
alteration, or of omission.
The difficulty arises only when an application is made for amendment
of pleadings after the case is first fixed for trial. In such an instance,
the person who seeks an amendment of pleadings will be given the
green light only upon the court being satisfied, for reasons to be
recorded, that grave and irremediable injustice will be caused if
such amendment is not permitted and that the party so applying
has not been guilty of laches. If amendments are allowed the court
has a discretion to impose terms. The mode of amending pleadings is
set out under subsection (4).
The discretionary power to amend pleadings must be exercised subject
to the limitations set out in Section 46(2) of the said Code and that no
amendment should be permitted which has the effect of converting an
action one character into an action of another or inconsistent
character. JAYASIRI EDIRISINGHE VS CITY PROPERTIES (PVT) LTD..,
S.C.H.C.L.A. 18/08, H.C. CIVIL) 47/2006(01)
The principle by which a Court ought to be guided in deciding to alter
pleadings is that the alteration will make the real issues clear.
Rathwatte v. Owen 2 NLR 141
A bonafide amendment which does not cause prejudice to the other
party should be allowed. IN CASIM LEBBE V. NATCHIYA 21 NLR 205
In Vipassi Nayake Thero vs. Jinarathane Thero 66 CLW 43, it was
held that there should not be an objection to a correction sought to
be made facilitating the court to identify the real issue between
the parties. This principle should however operate subject to the
condition that no injustice is done to the opposite party.

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In the case of Lebbe vs. Sandanam 64 NLR 461 a Divisional Bench
considered the rules applicable in the case of amendment of
pleadings and stated that the court should not allow an
amendment in the following instances:
(a) If the amendment sets up a new case.
(b) If the amendment converts an action of one character
into an action of another character.
(c) If the amendment has the effect of defeating an objection based
on prescription made by the other party.
(d) If the amendment adds a new cause of action.
(e) An amendment prejudices the rights of the opposite party.
(f) If the amendment changes the substance and the essence of
the original action.
An action in respect of one land cannot be converted into an action in
respect of another land by an amendment of pleadings.
IN UBERIS VS JAYAWARDENE 62 NLR 217
The use of the machinery to amend pleadings, should not be
permitted in the conversion of an action of one character to that of
another. Accordingly, a plaint filed in an action for definition of
boundaries cannot be amended so as to convert the action to one of
declaration of title to land. EKANAYAKE V. EKANAYAKE 63 NLR 188
In ODIRIS SILVA & SONS LTD Vs JAYAWARDENE 55 NLR 335, The plaint
was filed within the period of limitation, but the defendant was
wrongly named as " C. A. Odiris Silva and Sons Oil Mills," and not " C.
A. Odiris Silva and Sons, Limited. After the expiry of the period of
limitation, the caption of the plaint was amended by insertion of the
word "Limited " immediately after " C. A. Odiris Silva and Sons ". It
is contended for the defendant company that the action against the
company must be taken to have been instituted only upon the

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amendment of the caption of the plaint and that the plea of
prescription should therefore have been upheld. The learned judge's
rejection of the plea is based upon a finding that it was the defendant
company, on whose behalf its manager had bought the drums from
the plaintiff, that the plaintiff intended to sue, though the plaint had
given the defendant a wrong description. This is a finding of fact
which, it seems to me, it was open to the learned judge to reach upon
the evidence, and in this view of the facts no objection can be taken to
the order allowing the plaintiff to amend the caption of the plaint.
The plaintiff designated the chairman of the urban Council as the
defendant and later by an amendment sought to bring in the urban
Council in place of the inadvertently named defendant. It was held
that the amendment is justifiable. VELUPILLAI V. THE CHAIRMAN,
URBAN DISTRICT COUNCIL 1[(1936) 39N.L.R. 464].
For a different approach adopted by court not allow an amendment
which defeats a plea of prescription the decision in WADUGANATHAN
CHETTIAR Vs SENA ABDUL CASSIM, 54 NLR 185 may be useful. It
was held in that case that A Court will refuse to allow a plaint to be
amended so as to include a new cause of action if such amendment,
by its relation back to the date of the original plaint, is prejudicial to a
plea of prescription which may be raised by the defendant in respect
of the new cause of action.
In De Alwis v. De Alwis - 76 NLR 444 it was laid down as a rule that
a Court will not allow to set up a claim by an amendment of the plaint
if a fresh claim would be barred by prescription at the date of the
application to amend the plaint. However, where there are special and
peculiar circumstances which require the amendment to be ordered in
the interests of justice the provisions of section 93 of the Civil
Procedure Code are wide enough to allow such an

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amendment.
An important decision on this matter is reported in 58 NLR 169. In
that case, Plaintiff sued the defendant on the basis that the
defendant, was an over holding lessee by atonement. Defendant
admitted the bare execution of the lease, but stated that the lessors
were unable to give him possession of the land in question. He averred
that the land was sold to him by its lawful owner (not one of the
lessors) and that by adverse possession from that date he had
acquired title by prescription. The plaintiff then sought to amend the
plaint by claiming a declaration of title and ejectment upon the footing
that his rights of ownership had been violated. The plaintiff’s attempt
to amend the plaint failed as the court took the view that the
amendment would cause prejudice to the defendant's plea of
prescriptive possession. PATHIRANA VS JAYASUNDARA
Fernando v. Fernando (74 NLR 57) is a decision that laid down the
rule that objection relating to the want of jurisdiction in a Court to
hear a case may be waived by the defendant, if the want of jurisdiction
is not apparent on the face of the record but depends upon the proof
of facts. After the plaintiff's case was closed and after the defendant
and two witnesses had given evidence the trial Judge allowed an
application made by the defendant to amend the answer in order to
raise the plea that the Court had no jurisdiction to try the case as the
dispute had not been referred to the Conciliation Board and no
certificate from the Chairman had been annexed "to the plaint as
required by section 14 (1) (a) of the Conciliation Boards Act. Having
regard to the prejudice to the plaintiff and the late stage at which the
amendment of the answer was sought to be made, the defendant was
precluded by delay and acquiescence from raising the objection to
jurisdiction and that she had in fact waived it.
In Samarasinghe Vs Pagngnasara Thera 53 NLR 271, the two

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plaintiffs, who were Buddhist monks, sought to vindicate title to a
land in their personal capacity on the footing that it was their private
pudgalika property. During the trial, however, it appeared that the
land in question was the Sanghika property of a Vihare. The 2nd
plaintiff, thereupon, claimed to vindicate title to the land, not in his
personal capacity as owner, but on behalf of the temple. It was held
that it would be improper to permit the whole nature and scope of the
action to be altered.
In Daryani Vs Eastern Silk Emporium Ltd, 64 N.L.R. 529, 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. It
was 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.
In the same judgment at page 531 it was observed as follows
“There are two main rules of practice that have emerged from the
decided cases regarding the principles which a Court should take into
consideration when it exercises the power to amend the plaint. Firstly,
the amendment should be allowed, if it is necessary for the purpose of
clarifying or raising the real question or issues between the parties.
This rule is based on the principle that a multiplicity of actions should
be avoided. The whole purpose of pleading is to define, clarify and to
limit the issues which are to be the subject of the pending contest”.

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SHERMAN DE SILVA & CO. LTD., Vs MRS. ARIYALATHA DE SILVA,
77 NLR 275 is a decision where the discretion to amend pleadings has
been looked at from the point of view of putting the real subject matter
in issue. Plaintiff sued the defendant company for an order to register
certain shares in her name. Before answer was filed, she proposed to
amend plaint by stating that the shares had been unlawfully
registered in the name of one R. Sherman de Silva and prayed "for an
order that the defendant company do cancel the registration of the
said shares in the name of R. Sherman de Silva and to register the
said shares in the name of the plaintiff. It was held that the
amendment of the plaint should be allowed as it merely sought to put
the real subject matter of the action in issue even though it was done
by way of the additional relief claimed. Neither the fundamental
character of the suit nor its nature and scope was altered by the
amendment.
As regards amendment the test is whether in order to effectively
adjudicate upon the dispute between the parties amendment of the
pleadings is necessary. The main considerations to be borne in mind
in exercising the discretion whether to allow or refuse the amendment
are (a) that the rules of procedure have no other aim than to facilitate
the task of administering justice, (b) that multiplicity of suits should
be avoided. As a general rule leave to amend ought not to be refused
unless the applicant is acting mala fide and the blunder has resulted
in injustice to the other party which cannot be compensated costs. An
amendment of a clerical error or a bona fide wrong description of
property should be allowed-so also an amendment clarifying the
position put forward in a pleading. Amendments which do not alter
the fundamental character of the action or the foundation of the suit
are readily granted. But if an injustice and prejudice of an
irremediable character will be inflicted on the opposite party the
amendment will not be allowed. As a rule an amendment will not be
allowed if a fresh suit on the amended claim would be barred by

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prescription but while this is a factor to be taken into account it does
not affect the power of the court to order it if that is required in the
interests of justice. However negligent or careless may have been the
first omission and however late the proposed amendment, the
amendment may be allowed if it can be made without injustice to the
other - MACKINNON MACKENZIE & CO. GRINDLAYS BANK LTD 1986 2 SLR
272.
However, consequent to the amendment introduced in 1991, the
court would adopt two different approaches in considering an
application to amend pleadings. If the application is made before
the first date of trial the courts would yet exercise the same
liberal approach which was exercised under the original Section
93. In this context it could be stated that the statement of the
law in the above case still operates as the guide for a court.
If the application for amendment is made either on the first day of
trial or thereafter the courts would adopt a more strict approach in
considering such an application. In such an instance, as a rule, an
amendment will not be allowed unless the applicant satisfies the
court that grave and irremediable injustice would be caused to
him and that he is not guilty of laches. Accordingly, if an
application is made in circumstances falling under Section 93(2), the
burden shifts on to the applicant to adduce material and satisfy
court as to why his application should be allowed.
In Colombo Shipping Co. Ltd v. Chirayn Clothing Pvt Ltd 1995 2
SLR 97 it was held that an amendment after the first date of trial
should be allowed only in limited circumstances.
In Paramalingam v Senevirathne 2001 2 239 the Court of Appeal
considered the concept of "laches" referred to in section 93 and
stated that "laches" mean negligence or unreasonable delay in
asserting or enforcing a right. There are two equitable principles

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which come into play when a statute refers to a party guilty of
laches; the doctrine is that delay defeats equities, and the second
is that equity aids the vigilant and not the indolent."
It was stated in Gunasekera v. Abdul Latiff 1995 1 SLR 225 that an
application for an Amendment should not be allowed unless the
delay is explained. In Avudiappan v. Indian Overseas Bank Ltd 1995
2 SLR 131 the guideline suggested is that “laches" be taken to mean
delay that cannot be reasonably explained.
In Insurance Co. Ltd. V. Nanayakkara 1999 3 SLR 50 it was held
that an amendment should not be allowed unless the Court is
satisfied that;
a) Grave and irremediable injustice will be caused to the
party applying, and
b) That such party is not guilty of laches.
It was further held in that case that the Court must be satisfied
about both reasons above and then record the reasons for its
order.
In Hatton National Bank v. Silva 1999 3 SLR 113 the plaintiff had
instituted action against the Defendants, and later sought to add a
cause of action based on damages. The application was allowed by
the trial Judge. However, it was held by the Court of Appeal that
the Amendment should not have been allowed since it introduces a
new cause of action.
In Gunasekera v. Punchimenike 2002 2 SLR 43 Plaint was filed
seeking a declaration of title to an undivided share of a land. It was
pleaded that the defendant-appellant had encroached upon a portion
which was not described with reference to physical metes and
Bounds or by reference to any map or sketch. The matter was fixed
for ex parte trial; after ex parte trial application was made to issue a

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commission to survey the land and identify same. The ex parte trial
did not end up in a judgment. After the return of the Commissioner,
the plaint was amended, a fresh ex parte trial was thereafter held.
After the decree was served, the defendant-appellant sought to purge
default, which was refused.
In appeal it was held that
(i) The Court was obliged initially to have rejected the original plaint
since it did not describe the portion encroached upon - s. 46 (2) (a)
read together with s. 41 of the CPC.
(ii) When a plan was prepared after ex parte evidence had been
partially led and recorded and an amended plaint filed, Court should
have issued notice as per s. 93 of the CPC.
Per Wigneswaran,J. stated that "A Court should not allow amendment
of pleadings after an ex parte trial has been ordered. The scheme of
the Code had been where the defendant is absent on the day fixed for
his appearance and answer, trial ex parte should be held either
immediately or as the next step."
In the case of Seylan Bank v. Thangaveil, 2004 2 SLR 101 the Bank
sought to recover an overdraft facility granted to Thangavelu. In the
original plaint the Defendant's name is described as Sabapathy
Thangavelu - address being the same. Summons was served on
Sinnamah Thangavelu. Upon summons being served Sinniah
Thangavelu appeared in court, filed proxy/answer describing himself
as S. Thangavelu.
When the case was called on 05.04.2002 attorney-at-law for the
defendant petitioner submitted that though he had filed proxy for the
defendant's Sabapathy Thangavelu, his correct name is Sinniah
Thangavelu. The trial judge directed the plaintiff to correct the
mistake in the caption of the plaint. The trial court accepted the
amended plaint on 10.01.2003 and granted time to the defendant to
file his answer.

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The defendant-petitioner having moved in revision the Court of
Appeal ruled out the opportunity for revision and stated inter alia
that the amendment effected to the caption is only the correction of a
clerical error in the name of the defendant. The defendant's surname
and address have been correctly given.
Names are needed only to designate persons and the suit is not
against names but against persons designated thereby.
The effect of the 1991 amendment was discussed in the case of
MASEENA Vs. SAHUD 2003 3 SLR 109 where the 1st plaintiff
divorced his wife the defendant and thereafter he and the 2nd
plaintiff-respondent - Lessee - instituted action against the defendant-
petitioner. The 1st plaintiff-respondent sought a declaration to the
property in question and the eviction of the defendant-petitioner, his
former wife, and also sought a declaration that the 2nd plaintiff -
respondent is the Lessee.
Of the issues raised by the defendant four issues were tried as
preliminary issues. The trial court in answering the preliminary issue
12 - held that the action is not properly constituted and it is contrary
to section 35(1) and that there is mis-joinder of parties and returned
the plaint for amendment under section 46(2). The defendant-
petitioner sought leave to appeal against the order. It was held: (i) The
trial Judge has failed to take into account section 93(2) of Act 9 of
1991. (ii) The amendment has taken away the power of court to amend
pleadings ex mero motu. An amendment could be allowed only upon
the application of a party when that party satisfies two conditions in
section 93(2). In this case there was no such application. Per Gamini
Amaratunga. J.
'The Judge has held that the action is not properly constituted and
that there is a misjoinder of parties then no further amendments of
the plaint should have been allowed."
The following judgment may be useful under the heading amendment

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of pleadings….
HATTON NATIONAL BANK LTD. v. WHITTAL BOUSTEAD LTD. SLR 1978-79, Vol :2, Page: 257
GORDON FRAZER & CO. LTD. v. LADY GYMARA FERNANDO SLR 1980, Vol :2, Page: 97
ABEYWARDENA AND OTHERS v. EUGINAHAMY AND OTHERSSLR 1984, Vol :2, Page: 231
MACKINNON MACKENZIE & CO. v. GRINDLAYS BANK LTD. SLR 1986, Vol :2, Page: 272
WIJESINGHE v. KARUNADASA SLR 1987, Vol :2, Page: 179
PILAPITIYA v. BUDDADASA AND ANOTHER SLR 1990, Vol :2, Page: 186
GUNASEKERA AND ANOTHER v. ABDUL LATIFF SLR 1995, Vol :1, Page: 225
AVUDIAPPAN v. INDIAN OVERSEAS BANK SLR 1995, Vol :2, Page: 131
COLOMBO SHIPPING CO. LTD. v. CHIRAYU CLOTHING (PVT) LTD. SLR 1995, Vol :2, Page: 97
KURUPPUARACHCHI v. ANDREAS SLR 1996, Vol :2, Page: 11
JAYASINGHE v. GNANAWATHIE MENIKE SLR 1997, Vol :3, Page: 410
SHAMMARI v. PREMIER AIRLINE AGENCIES (PVT) LTD. SLR 1998, Vol :2, Page: 162
HATTON NATIONAL BANK v. SILVA AND ANOTHER SLR 1999, Vol :3, Page: 113
ROHANA v. SHYAMA ATTYGALA &OTHERS SLR 1999, Vol :3, Page: 381
CEYLON INSURANCE CO., LTD. v. NANAYAKKARA AND ANOTHER SLR 1999, Vol :3, Page: 50
PARAMALINGAM v. SIRISENA AND ANOTHER SLR 2001, Vol :2, Page: 239
RAJASINGHAM v. SENEVIRATNE AND ANOTHER SLR 2002, Vol :1, Page: 82
GUNASEKERA v. PUNCHIMENIKE AND OTHERS SLR 2002, Vol :2, Page: 43
WIJESUNDARA v. WIJESUNDARA SLR 2003, Vol :1, Page: 374
WIMALASIRI AND ANOTHER v. PREMASIRI SLR 2003, Vol :3, Page: 330
SEYLAN BANK v THANGAVEIL SLR 2004, Vol :2, Page: 101
RUSHANTHA PERERA VS WIJESEKERA SLR 2005, Vol :3, Page: 105
COLOMBO DOCKYARD LTD VS JAYASIRI PERERA AND OTHERS SLR 2006, Vol :1, Page: 99
PERERA v GEEKIYANA SLR 2007, Vol :1, Page: 202
KARUNARATNE V ALWIS SLR 2007, Vol :1, Page: 214
MENDIS V MENDIS SLR 2007, Vol :2, Page: 79
KANAGARAJ VS. ALANKARA SLR 2010, Vol :1, Page: 185
SENEVIRATNA v. CANDAPPA NLR Vol :20, Page: 60
CASSIM LEBBE v. NATCHIYA NLR Vol :21, Page: 205
AVVA UMMAH v. CASINADER NLR Vol :24, Page: 199
FERNANDO v. PALANIAPPA CHETTY NLR Vol :28, Page: 273

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RATWATTE v. OWEN NLR Vol :2, Page: 141
FERNANDO v. SOYSA NLR Vol :2, Page: 40
MUTTUMENIKA v. SUDUMENIKA NLR Vol :45, Page: 58
WADUGANATHAN CHETTIAR v. SENA ABDUL CASSIM NLR Vol :54, Page: 185
DON ALWIS v. VILLAGE COMMITTEE OF HIRIPITIYA NLR Vol :54, Page: 225
C. A. ODIRIS SILVA & SONS, LTD. v. JAYAWARDENE, P. NLR Vol :55, Page: 335
LUINONA v. GUNASEKARA NLR Vol :60, Page: 346
WIJEWARDENE v. LENORA NLR Vol :60, Page: 457
AZIZ v. THONDAMAN NLR Vol :61, Page: 217
UBERIS v. JAYAWARDENE NLR Vol :62, Page: 217
EKANAYAKE v. EKANAYAKE NLR Vol :63, Page: 188
THE BANK OF CEYLON, JAFFNA v. CHELLIAHPILLAI NLR Vol :64, Page: 25
LEBBE v. SANDANAM NLR Vol :64, Page: 461
DARYANANI v. EASTERN SILK EMPORIUM LTD. NLR Vol :64, Page: 529
THIRUMALAY v. KULANDAVELU NLR Vol :66, Page: 285
N.DALUWATTA v. M.B. SENANAYAKE NLR Vol :67, Page: 524
E.VELUPILLAI v. C. SIVASITHAMPARAM NLR Vol :67, Page: 80
WALLES v. HECTOR SILVA NLR Vol :70, Page: 308
MARTIN v. THENUWARA NLR Vol :70, Page: 332
MUNICIPAL COUNCIL OF JAFFNA v. DODWELL & Co. LTD. NLR Vol :74, Page: 25
FERNANDO v. RONALD NLR Vol :75, Page: 231
DE ALWIS v. DE ALWIS NLR Vol :76, Page: 444
DINORIS APPUHAMY v. SOPHIE NONA NLR Vol :77, Page: 188
SHERMAN DE SILVA & Co., LTD. v. DE SILVA NLR Vol :77, Page: 275
JOINDER OF PARTIES AND MISJOINDER
In drafting plaints a question that has to be adverted to by the
Lawyers centres round joinder of parties and consequences of
misjoinders. (Vide Chapter IV CPC - Sections 11 to 23).
It is permissible under CPC to join any number of persons having a

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common interest in one and the same action. But wherever a cause of
action is separate and distinct such Plaintiffs cannot be joined. It
would be misjoinder to join such Plaintiffs in such an instance.
In an aquilian action it was held that the widow and the minor
children could sue the Defendant jointly as Plaintiffs (Vide Section
11 CPC) Fernando vs. Sunthari Pillai (45 NLR Page 126).
Ceylon Mercantile Union Vs. Insurance Corporation of Sri Lanka (80
NLR309) is a case where the Trade Union was held to enjoys no
locus standi to maintain a suit for relief based on the contractual
relationship of it’s members.
Section 14 of the CPC deals with the principle involved in joinder of
Defendants. When the Plaintiff finds that there are more than
one person against whom the right to any relief exists in respect of
the same cause of action whether jOintly, severally or in the
alternative he could join them all as Defendants in the same action.
The important matter to remember is that the claim for relief
should arise in respect of the same cause of action. In Lowe vs.
Fernando (16 NLR 398) it was held that it was a misjoinder to
join as Defendants several persons who were occupying different
portions of a large land unless there was evidence that they were
acting in concert.
A new Section 14 A was introduced by Act No: 6 of 1990. It
permits the substitution of the person alleged to be the legal
representative. (Vide amended Section 394(2) CPC).This Section
enumerates the procedural mechanism that has to be adhered to in
a case where the Defendant dies and the right to sue survives.
In Nilamdeen vs. Dayananda (20011 SLLR 160) the scope of this
Section was gone into by the Court of Appeal.

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Section 15 CPC permits a Plaintiff to join as parties to a suit all
persons who are jointly and/or severally Liable on anyone contract.
Section 16 is important. It deals with Representative Actions. Thus
where several persons have a common interest in initiating or
defending an action, one or more of such persons may with the
permission of Court sue or be sued on behalf of all interested
parties. But the Court is expected to give notice of the institution
of the action to all parties either by personal service or by public
advertisement.
In Pabilis Vaidiya vs. Kumara Young Farmers' Club 69 NLR 569 it
was held that a person is not entitled to sue in a representative
capacity on behalf of a Club unless he was also liable to be sued
in a representative capacity. Thus a Patron or an Advisor to a Club
was held to have had no common interest with the members of the
Club and therefore had no standing to sue in a representative
capacity. Thus according to Section 16 it is the common interest
that all persons suing or being sued which must be taken into
account when filing such representative actions.
In Ranasinghe vs.Nandanee Abeydheera 1997 3 SLLR 401 it was
held that the notice referred to in Section 16 was imperative and
failure to comply would be a fatal irregularity. (see also 39 NLR 90
earlier mentioned).(Vide also the recent case of Pinto vs. Trelleborg
Lanka Pvt. ltd. 2003 3 SLLR 214 with regard to validity of proxies
filed on behalf of parties in representative actions).
Misjoinder means the joinder of wrong parties. But Section 17
specifically says "No action shall be defeated by reason of the
misjoinder or non joinder of parties ..... " In Appuhamy vs.
Pangnananda Thero 67 NLR 89, it was held that no action should
be defeated merely for the reason of misjoinder or non joinder of

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parties. (vide also Kudhoos vs. Joonoos 41NLR 251 and Podihamy
vs. Seimon Appu 47 NLR 503; also later case Ranasinghe vs.
Fernando 69 NLR 115). In Morathota Sobhitha Thero vs.
Amunugama Rathnapala Thero 1981 1 SLLR 201 it was held that
wherever there is a misjoinder or non joinder, the proper
procedure would be not to dismiss the action but to strike off the
wrong party. This view has been endorsed subsequently in Uragoda
vs. Jayasinghe 2004 1 SLLR 108 too.
Objections under Section 17 CPC needs to be taken at the earliest
possible opportunity. In any event in terms of Section 18 every
application made to Court to rectify a misjoinder has to be made on
or before the date of hearing. Once such an application is made the
Court could make an order striking out any party improperly
joined either as Plaintiff or Defendant. Yet in Banda vs.
Dharmaratne 24 NLR 210 it had been held that irrespective of the
stage of the application parties can be joined at any stage of a civil
suit. The principle behind such an order was that the objective of
the Code was to avoid multiplicity of suits and that if the
proposed addition or the deletion of a party facilitates the task of
administration of justice and the proper determination of the
matter before Court the order under Section 18 could be made at
any point of the case.
In considering an application under Section 18 CPC the primary
consideration of the Court should be whether the addition of a
party or the striking out of a party would facilitate the proper
adjudication of the matter before it. (Vide Arumugam
Coomaraswamy vs. Andiris Appuhamy-1985 2 SLLR 110 and
Keerthiwansa vs. Urban Council, Horana - 2001 3 SLLR 252). In
the case of Robert Dissanayake vs. People's Bank - 1995 2 SLLR
320 it was held that every application for the addition of a party
ought to be allowed if a Plaintiff can show that he cannot get

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effectual and complete relief unless the new party is added. In the
case of a Defendant he must show that he cannot effectually set up
a defence unless such a party is added. If any party is added
consequent to an application under Section 18 such party will
thereafter be called as "added party".
A Court is expected to look into following matters when considering
addition of parties-
a. That such party has an interest in the litigation before Court.
b. That he would be prejudiced by a judgment being made either
for the Plaintiff or the Defendant.
c. That his admission would prevent the same question being
tried over twice.
d. That the subject matter of the action is the same as the
subject matter claimed by him. (Paulu Perera vs. Fernando -2
Leader Law Reports 48) In Ponnamma vs.Kasipathi Pillai 4 NLR 261
it was held that if the objection was one of non joinder the
Defendant has to name the party who has to be joined.
Sometimes objections are raised by Defendants that the action had
been instituted against the wrong party. Should the Court allow
the correct party to be added or dismiss the action? The correct
procedure to be followed was set out in Don Alwis vs. Village
Committee of Hiripitiya (54 NLR 225) where it was held that in such
an instance it was not possible to permit a Plaintiff to amend the
Plaint in order to add the correct party but to dismiss the action
permitting the Plaintiff to commence a new action.
Section 85 CPC outlines the procedure to be followed in an ex parte
trial. At such trials too the evidence led must be evidence that are
legally admissible. They must be given orally as far as possible.
Affidavits should be resorted to only in exceptional cases. (Vide
Seneviratne vs. Dharmaratne 1997 1 SLLR 76).ln Sirimavo
Bandaranaike vs. Times of Ceylon (1995 1 SLLR 22) it was held

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that judges have a duty to act according to law even in ex parte
trials. The Courts should ensure that the claim of the Plaintiff is
due in fact and in law and must dismiss his action if he is not
entitled to it. Once an ex parte judgment and decree are entered
a copy of the decree must be served on the Defendant. Such copy
must contain an endorsement that any application to set aside the
decree must be made within 14 days of the service of the decree. If
such an application is made by petition and affidavit with notice
to Plaintiff by the Defendant indicating the reasons for his non-
appearance the Court would conduct an inquiry and if satisfied
that the reasons offered are reasonable, would set aside the
judgment and decree earlier made and the Defendant would be
permitted to proceed with his defence from the stage of his
default. According to Section 86 (2A) 'At any time prior to the
entering of judgment against a Defendant for default, the Court
may, if the plaintiff consents, but not otherwise, set aside any
order made on the basis of the default of the Defendant and permit
him to proceed with his defence as from the stage of default upon
such terms as to costs or otherwise as to the Court shall appear
fit.' Such an application too has to be made by petition supported
by affidavit though Courts do allow applications in open Court
made by Attorneys at law who had missed their cases to have the
ex parte orders vacated when the other side lawyer consents, out
of courtesy to the Bar.
In Sirimavo Bandaranaike vs.Times of Ceylon ltd.1995 1 SLLR 22
it was held that the revisionary jurisdiction of the Court of Appeal
under Article 138 of the Constitution extends to revising or
varying an ex parte judgment entered upon the default of
appearance of the Defendant on the ground of manifest error,
perversity or the like. Thus it was held possible for a Defendant
to revise the ex parte judgment entered against him without
following the procedure laid down under Section 86(2) CPC if the

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order of the District Court was sought to be attacked on manifest
error ,lack of jurisdiction and the like.
Non appearance of the Plaintiff If Plaintiff is absent on the date of
trial the Court would dismiss the action of the Plaintiff. Section
87 [1]. What is important to remember is that when an action is
so dismissed the Plaintiff is prevented from instituting a fresh
action in respect of the same cause of action. Section 87[2]. But
Section 87[3] permits the Plaintiff to apply within a reasonable time
from the date of dismissal to have the dismissal set aside.
The reasons for non appearance must be on reasonable grounds
and the Court should be satisfied of such grounds.
Section 88(1) CPC states that no appeal shall lie against any
judgment entered upon default. That means that a party at default
cannot file a direct appeal but has to follow the procedures set
out in either Section 87(2) or Section 86 (2) Cpc. But under
Section 88(2) the order made by Judge after inquiry into the
default of Plaintiff or Defendant would become appealable.
In such an event the proper remedy for the affected party is to go
by way of direct appeal and not by way of leave to appeal.(Vide
Sangarapillai vs Karthigesu 2 Sri Kantha Law Report page 99 and
Wijenayake vs. Wijenayake ( 5 Sri Kantha Law Report Page 28).
Discovery of Documents Interrogatories
Section 94 to 100 CPC deal with Interrogatories. The purpose of
Interrogatories is to obtain from the party interrogated admissions
of facts which is necessary for the party interrogating to prove in
order to establish his case" (Vide Kennedy vs. Dodson 1895 1
Chancery Division 341; Wijesekera vs. Eastern Bank Ltd. 43 NLR
109).

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A litigant could serve interrogatories on the other side at any
time before hearing with permission of Court obtained by filing
motion ex parte. (Section 94) Serving of interrogatories has to be
done before the hearing of a case and where the Defendant wishes
to pose the questions it could be done only after Answer is
tendered. (Vide Independent Newspapers Ltd. vs. Gunasingham
19911 SLLR 285).They have to be filed in Court and then be
delivered to the other side. In Gunawardhane vs.Dunuwille 46 NLR
565 it was held that the Court would not allow interrogatories if
they are too wide or where they are only remotely connected to the
case.
When served, such party is expected to answer same within 10 days.
Court can extend the time.(Section 99).
In terms of Section 98 a party can refuse to answer on the following
grounds-1. that they are scandalous or irrelevant 2. that they have
been framed mala fide 3. that the answer will tend to incriminate
himself 4. that the matter inquired after is not sufficiently material
at that stage of the action or any like ground.
Parties are duty bound to answer interrogatories. If not answered or
insufficiently answered the party interrogating could make an
application to Court for a directive on the other party to answer
the interrogatories. Before such a directive is issued it is
imperative that the party interrogated is given notice of the
application for an order under Section 100 made by the party
interrogating.(Ceylon Insurance Co.Ltd.vs. Sudu Banda 70 NLR 261 )
If any party fails to comply with any order to answer
interrogatories, if he be a Plaintiff, he is liable to have his case
dismissed for want of prosecution and if he be a Defendant to
have his defence struck out and to be placed in the same
position as if he had not appeared and answered. (Vide Section

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109 CPC)Thus the consequences are very severe. An interesting
observation was made in Chetty vs. Ragsoobhoy 46 NLR 12. That
is, a failure to answer interrogatories does not make a Defendant
liable to have his defence cut off. It is only the failure to comply
with an order made by Section 100 CPC that makes a Defendant
liable to face the same consequences as in the case of an ex
parte trial. In Lechimanan vs de Silva 2 CLW 29 it was held that
the Court should act extremely cautiously before dismissing a
Plaintiffs action under Section 109 of the Code. (Vide also Amin
Jrai vs. Hadji Omar and Co. Ltd. 71 NLR 115; Appusinno vs. Obis
Appuhamy 22 CLW 80; Namasivayam Chetty vs. Ragsoobhoy 46
NLR 12; Abrew vs. Sekeram 2003 1 SLLR 381 and Nihal Sri
Amarasekera vs. G.L.Peiris 20011 SLLR 417.)
Genuineness of Documents
This is also an optional step similar to interrogatories. But the
consequences are not as severe. Under Section 101 any party can
go before Court and obtain an order by way of an ex parte motion
requiring the other party to admit the genuineness of any
document material to the action. Such motion has to be filed at least
10 days before the date of trial. Once an order is obtained a notice
would be despatched to the opposite party which has a duty to
comply with the order within 4 days of the order being served.
Such admission of any document is required to be in writing and
has to be signed by the party or his registered attorney at law and
filed in Court. (Section 101 (2)).
The consequence of failure to comply would be that the Court
would direct the party refusing to admit the genuineness of any
such document to bear the expenses involved in proving such
document whatever may be the result of the action.(Section 101 (4)).
Discovery of Documents Any time during pendency of an action the

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Court can on its own or on the application of a party direct any
other party to a suit to declare by affidavit all documents currently
in his possession and which are relevant to the case.
When such an order is made a party can object to the production
of a document by way of an affidavit stating his grounds for
objection. What shall be the contents of such affidavit would be as
per Section 181 of the CPC. (Vide Eastern Star Lines Ltd. vs.
Deutsche Bank of Hamburg 76 CLW 93). It is not incumbent on the
District Court to make an order under Section 102 as a matter of
course in circumstances where the Court feels that no good is
reasonably to be expected and therefore could refuse such an
application. (Vide Weerasuriya vs. Croos 22 NLR 87 and De Silva
vs. De Silva 58 NLR 97). Inspection of Documents Under Section
104(1) CPC a party to a case may at any time before the hearing
file an ex parte motion and ask for notice on the other party to
produce any document referred to either in their pleadings or their
affidavits for the purpose of inspecting such documents. Once
notice is issued the party noticed has to permit the other party
or their registered attorney to inspect the document and take
copies thereof.
The consequences of failing to comply with such notice would be
that such party shall not afterwards be entitled to put any such
document in evidence on his behalf in such an action unless he
satisfies Court that such document relates only to his own title or
that he had some other and sufficient cause for not complying
with such notice. Section 104 (2). In such an event Court could
permit such document to be put in evidence. Chettiar vs. Bandirala
2 CLW 51 affirmed the position that an order for production of
documents for inspection could only be made in respect of
documents which are referred to in the pleadings or the affidavits
of a party. A document not in the possession of a party but

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added under Section 51 CPC to the list of documents, would also
be a document in respect of which such an order could be made.
Section 105 specifies the mode of production of documents for
inspection. Response to notice under Section 104 should be within
10 days of the receipt of such notice. In his response through
Court he must indicate a time and place within three days from
such delivery to inspect. If the right of inspection is not granted
under Section 106 an application could be made to Court for an
order of inspection by petition and affidavit. The affidavit must
state those matters enumerated in Section 107 CPC. The
consequences of non conforming is set out in Section 109. Such
party in that instance, if he is the Plaintiff, is liable to have his
action dismissed for want of prosecution. If he be the Defendant
he is liable to have his answer struck off and to be placed in the
same position as if he had not filed answer in the said case. In
addition such party would be guilty of contempt of Court.
Further steps regarding Documents before Trial Sections 111 to
120 CPC set out these further steps.
ISSUES
A civil case proceeds to trial on the issues framed. All areas in a case
where parties are in dispute would form the basis for issues. The
ultimate responsibility with regard to framing of issues would lie
with the Court. This was affirmed in Padmawathie vs. Jayasekera
1997 1 SLR 248. While I was Additional District Judge, Colombo, I
believe it was in my Court that the practice of each party
preparing and handing over issues in writing to Court, with copy to
the other side, was started. This enabled both sides to see where
the differences were. Section 146(1) CPC says that "if the parties are
agreed as to the question of fact and of law to be decided between
them, they may state the same in the form of an issue and the
Court shall proceed to determine the same". Obtaining the issues

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in writing with notice to each other enabled Court to identify the
areas of agreement and dispute. If it was found that parties were
not agreed then the Court in terms of Section 146(2)CPC proceeded
to peruse the Plaint, Answer, replies to interrogatories delivered in
the action and on the basis of documents produced by either
party framed the issues on which the right decision of the case
appeared to depend. Yet when issues are recorded there is a
possibility that either party may object to the other party's issues.
An objection can be raised that the issues suggested alter the
nature of the action. It might be said that the issues suggested
are irrelevant. The Court must then go through the issues and
make its order immediately. It was said in Delpachitra vs.
Thamitagama 1986 3 Colombo Appellate Law Reports 63, that the
Court cannot postpone making its finding on the objections raised,
at the end of the case. It was held in Avudaiappan vs. Indian
Overseas Bank 1995 2 SLLR 131, that the simple test was to
ascertain whether the issue makes the dispute clear and helps the
Court to come to a correct decision.(See also Bank of Ceylon vs.
Che"appapillai 64 NLR 25; Lanka Orient Leasing Company vs. Ali
1999 3 SLLR 109; Gordon Frazer and Company Ltd. vs. Lady
Gimara Fernando 1980 2 SLLR 07 and Adlin Fernando vs. Lionel
Fernando 1995 2 SLLR 25).
The question is raised often whether issues must be strictly based
the pleadings. A long line of judicial authorities conclude that there
is no requirement under our law that issues must be strictly
confined to the pleadings. A Court is expected to examine the
pleadings, answers to interrogatories and the documents and then
decide what the parties intended. When objections are raised
saying the issue is extraneous to the pleadings what the Court
should decide is whether the proposed issue would help the Court
to come to a correct decision.
There are some rules relating to issues which could be

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summarized as follows-1. Issues need not be confined to pleadings.
2. Issues must have a bearing on the case presented.
3. They should be relevant.
4. They should not alter the nature of the action contemplated
by the pleadings. (Candappa vs.Ponnambalampillai-Bar Association
Law Journal-1994Vol.5,Part 2,Page3.
5. Issues should not be framed so as to present a case materially
different to the case set up in the pleadings- Gnananathan vs.
Premawardene 19993 SLLR 301
6. If issues are accepted by Court but found that the issues do
not arise from the pleadings the pleadings should then be called to
be amended.(Martin vs. Thenuwara 70 NLR 332).
7. If issues make the dispute between the parties clear and would
help Court to come to a correct decision then they should be
permitted.
8. Any objection to an issue has to be specific and should not be
vague.
9. When issues suggested by either party are at variance, the
Court must decide upon the issues on which the case should
proceed to trial. (Fernando vs. Pieris 18 NLR 55)
When issues of fact and law arise in the same action, the Court
has to decide whether there are any issues of law on which alone
the case could be disposed of. If there are any such issues the
Court must try such issues of law first. These issues would be
called as preliminary issues since they would go to the root of the
case. If at the end of the consideration of such preliminary issues
it is found that the plaintiff's case must be dismissed, the Court
could do so without recording any evidence. (Cathiravelu vs.
Oadabhoy 15 NLR 339).
In Sothiratnam vs. Annammah 50 CLW 35 it was held that for the
purpose of trying such preliminary issues the Court could
postpone the trial of the issues of fact. Unless the issues of law to
be initially considered go to the root of the case they would not be

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considered as preliminary issues. That means such issues of law
must not be issues of law in a general sense but issues on which
alone an action can be dismissed. (Muthukrishna vs. Gomes 1994 1
SLLR 1).
Thus only an issue on which alone the action can be disposed of
would be a preliminary issue. Where the issue involves the
determination on facts too then it would not be a preliminary
issue. Under such circumstances the Court should decide on the
matter only after recording evidence. (Vide Mohinudeen vs. Bank of
Ceylon -2001 1 SLLR 290; Pure Beverages Ltd.vs. Shanil Fernando
1997 3 SLLR 202 and Ramani Karunanayake vs.Girlie
Wimalaratne-2001 3 SLLR 56).
Courts have always permitted the parties to a civil action to frame
issues even at a subsequent stage of the proceedings. Such
permission is granted if the issues sought to be framed facilitates
the adjudication of the matter before Court and if no prejudice
would be caused to the other party. Such a power of the Court is
discretionary and should be exercised by Court in the interest of
justice.
Consequential Issues
The term consequential issue is not found in the Code. But it is
a term used in legal parlance when issues framed by one party
raised many other consequential issues which would become
relevant for the determination of the case.
Amendment of Issues
Section 149 CPC empowers a Court to amend the issues at any
time before passing a decree. The Section empowers Court to
frame additional issues too. In such circumstances the
paramount consideration of Court should be interests of justice. In
Hameed vs. Cassim 1996 2 SLLR 30 it was held that new issues
could arise even as a result of the evidence led. Once additional
issues are framed or when issues are amended the correct

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procedure would be to amend the pleadings too, to suit the
amended issues.
e. Filing Answer
Sections 72 to 78 deal with the preliminary steps that a
Defendant must take after receiving summons. An Answer has to
be filed by a Defendant in every regular action except where he
admits the claim of the Plaintiff. In such an instance the Court
would record such admission and give judgment in favour of the
Plaintiff. (Section 72) The scope of the provisions of Section 72
came for examination in Sivaratnam and others vs. Dissanayake
and others (2004 1 SLLR 144). Certain matters admitted in an
affidavit tendered along with the statement of objections filed in
respect of an application for injunctive relief were attempted to be
marked as admissions even though a contrary position had been
taken up in the Answer filed. It was held that such an admission
cannot be used. Justice Amaratunga said "An affidavit is written
evidence. But such written evidence cannot be used to force an
admission on the Defendants when they in their answer have
taken up a contrary position".
Requirements of a valid Answer
Section 73 to 76 sets out the requirements of a valid Answer. Apart
from the fact that the Answer must be in writing, contain the
caption and be properly stamped, the Defendant is expected to
answer all allegations of fact contained in the Plaint. When factual
matters contained in a Plaint are dealt with, a mere denial of such
matters is not sufficient. A statement admitting or denying the
several averments of the Plaint and setting out in detail plainly
and concisely the matters of fact and law and the circumstances
of the case upon which the Defendant means to rely for his
defence drawn in duly numbered paragraphs referring by number

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where necessary to the paragraphs of the Plaint are imperative as
per Section 75. Wherever a Defendant does not answer the
contents of any averment in a Plaint he is deemed to have
admitted such contents. (Vide Fernando vs. Samarakoon 49 NLR
285; Paul Perera vs. Chelliah and another 74 NLR 61).
In Wijeratne vs. Wijeratne CALA 4212003 decided on 4/8/2004 it
was held that there must be specific denial or a definite refusal to
admit. It must be unambiguous and not evasive. That meant that a
general denial of an averment or a general statement of non-
admission did not amount to specific denial. Where jurisdiction of
the Court is disputed, in terms of Section 76 it must be done
by way of a separate and distinct plea. (vide Joonoos vs.
Chandraratne 1990 2 SLLR 337). It must be taken up at the
earliest.(Vide Section 39 Judicature Act Ne: 2 of 1978) In Oliver vs.
The Ceylon Company Ltd. (3 NLR 182) it was held that an objection
to jurisdiction cannot be raised at the trial stage. (Vide also Andiris
vs. Siriya 27 NLR 70; Jalaldeen vs. Rajaratnam 1986 2 Colombo
Appellate Law Reports 201 and David Appuhamy vs. Yassassi
Thero 1987 1 SLLR 253). In Dheerasooriya vs. Vanderpooten 63
NLR 226 it was held that no objection to jurisdiction could be
raised at the stage of appeal.(Vide also Blue Diamonds Ltd. vs.
Amsterdam-Rotterdam Bank -1993 2 SLLR 249).
Claim in Reconvention
Section 75(1)(e) CPC entitles the Defendant to set up a claim in
reconvention. "A Claim in Reconvention duly set up in the Answer
shall have the same effect as a plaint in a cross action so as to
enable the Court to pronounce a final judgment in the same
action both on the original and on the cross claim." Section 75(I)(e).
A Claim in Reconvention must be of such a nature that the

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respective claims of the parties may be mutually adjusted and a
final decree entered in favour of one party or the other. The Claim
must be of such a nature that all issues between the parties could
be settled. Vide Silva vs. Perera 17 NLR 206.But it is not necessary
that the claim be in any way connected to the original claim of
the Plaintiff. (VIDE MALLIKA DE SILVA VS. GAMINI DE SILVA 1999 1
SLLR 85; MUTHUCUMARANA VS. WIMALARATNE 1999 1 SLLR 139 AND
NADARAJAH VS. DANIEL 1999 1 SLLR 240)
Replication
If the Answer contains a Claim in Reconvention the Plaintiff is
accorded a further opportunity of filing a Replication. According
to Section 79 CPC the Replication should be confined to matters
raised in the Claim in Reconvention of the Defendant. All rules
under Section 75 CPC relative to the form and substance of an
Answer ought to be complied with when filing a Replication. A new
matter amounting to a new cause of action cannot be introduced in
a Replication.
( COO RAY VS. JAYAWARDENE 43 NLR 427; ALSO DE MEL VS. THENUWARA
30 NLR 391).
List of witnesses and documents will be dealt in the presentation and
have not been included here.
End.

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