Civil Procedure---Amended plaint filed without leave – Construction of Order 6, rule 19 – Meaning of “within 21 days” in rule 19 – Order 6, rule 21 – Application for disallowance of amended plaint – Order 49, rule 5 – Power to extend time for application under Order 6, rule 21 – Whether new allegation of fraud can be raised in amended plaint – Whether claim that could be statute-barred on date when amended plaint filed can be inserted – Whether claim for new relief can be inserted.
Case summary
The plaintiffs filed the original plaint in this case on 21st June 1955, where in allegations analogous to fraud were pleaded but relief was claimed on the basis of misrepresentation without a specific allegation of fraud. The summons was not served. On 19th June 1956, the plaintiff filed an amended plaint without leave. The amended plaint introduced specifically an allegation of fraud and a new prayer for relief; the particulars remained as stated in the original plaint.
The defendant moved the Court to order that these amendments should be disallowed, that the time for objecting to them should be enlarged, if necessary, and that the time for filing a defence should be enlarged to expire 16 days after the hearing and determination of the motion. The defence claimed that the amendments were bad for the following reasons:
Because the amended plaint was filed out of time without leave;
Because a new allegation of fraud had been introduced;
Because a claim based on an allegation of fraud would have been statute-barred on the date on which the amended plaint was filed; and
Because new relief was claimed.
Held (26th November 1956):
Order 6, rule 19 is the only provision under which a plaint may be amended without leave.
The phrase “within 21 days” in rule 19 means “before the expiration of” and not “within 21 days on either side of the limit”. Thus, even though the summons had not been served and so no date had been specified for the entering of an appearance by the defendant, the amended plaint was filed within the time allowed by rule 19.
Application for disallowance of the amended plaint should normally be made by Chamber Summons under the provisions of Order 6, rule 21, within 15 days of the date of service of the amended plaint, but the Court has power under Order 49, rule 5, to extend the time.
Although the Court will not usually allow an amendment to raise an allegation of fraud not made in the original pleading, this rule is not absolute and does not apply if the original pleading made allegations analogous to fraud.
Although a new cause of action would normally be disallowed if the action would have been statute-barred on the date when the amended plaint was filed, this will not be so if the allegation made is based entirely on facts already alleged in the original plaint.
If the claim for new relief was not statute-barred, it should not be disallowed.
Motion dismissed with costs.
Cases cited: Riding v. Hawkins (1889) 14 P.D. 56; Derry v. Peek (1889) 14 App. Cas. 337.
Also referred to: Annual Practice, 1953, p. 454.
Counsel:
Nazareth, Q.C., and Hunter for the Applicant.
Salter, Q.C., and Kalsi for the Respondent.
Reported by:
I. R. Thompson, Esq., Resident Magistrate, Nairobi.
