Gill v B.E.A Timber Company (Civil Suit No. 544 of 1955) [1956] EACA 10 (1 January 1956)

#### ORIGINAL CIVIL

#### Before RUDD, J.

# INDER SINGH GILL, Applicant

### B. E. A. TIMBER COMPANY, Respondent

# Civil Suit No. 544 of 1955

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.

The plaintiffs filed the original plaint in this case on 21st June, 1955, wherein 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 that 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:-

(1) because the amended plaint was filed out of time without leave;

- (2) because a new allegation of fraud had been introduced; - (3) 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 - (4) because new relief was claimed.

$\mathcal{L}$

Held (26-11-56).—(1) That Order 6, rule 19, is the only provision under which a plaint may be amended without leave.

(2) That 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.

(3) That 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 for date of service of the amended plaint but the Court has power under Order 49, rule 5, to extend the time.

(4) That, 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.

(5) That, 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.

(6) That, 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.

Nazareth, Q. C. and Hunter for Applicant.

Salter, O. C. and Kalsi for Respondent.

Reported by.-I. R. Thompson, Esq., Resident Magistrate, Nairobi.

RULING.—The original plaint in this case was filed on 21st June, 1955, and although a summons was issued it was not served on the defendant. Subsequently on 19th June, 1956, the plaintiff filed an amended plaint without leave and the defendant was served with a summons and with copies of the original and amended plaints on 9th July, 1956. An appearance was entered on 17th July, 1956, and the present notice was filed on 2nd August, 1956.

The amendments of the original plaint were two. In the first place as regards the facts pleaded as ground for relief the amended plaint alleged that the defendant had obtained an order from the Rent Control Board "by fraud and/or misrepresentation and/or the concealment of material facts as set out in particulars". Whereas the original plaint did not contain the words "fraud and/or" before the word misrepresentation, the particulars were unchanged.

The second matter introduced by the amended plaint was a prayer that the order of the Board be set aside as well as the prayers in the original plaint for loss and damage. The motion prays that the amendment, in so far as it alleges fraud, be struck out and that the claim for additional relief, namely that the order in question by the Rent Control Board be set aside, be disallowed.

Order 6, rule 19, allows a plaintiff to amend his plaint without leave at any time within 21 days from the date specified in the summons for the appearance of or the entering appearance by the defendant or when a written statement of defence is filed within 14 days from the filing of the written statement of defence or the last of such written statements.

As I understand it Mr. Salter and Mr. Nazareth both argued that this rule did not apply in this case and it is certainly true that the amended plaint was not filed during the period of 21 days on either side of the time specified in the summons for entry of appearance or of the other limits stated in the rule. I am inclined to think that the word within as used in the rule really means "before the expiration of" in which case the amended plaint would come within the purview of the rule and the defendant could then apply for the amendment to be disallowed under rule 21, but such an application should be by Chamber summons and made within 15 days from the date of service or delivery to him of the amended plaint.

The applicant asks that if rule 21 applies, the time for making the application should be extended and there is a general power to make such extensions under Order 49, rule 5. No point has been taken as to time or if it was taken it was not pressed far. If rule 21 of Order 6 applies in this case I would be prepared to extend the time for the present application in the circumstances of this case so as to enable application to be made at the time it was made.

Our rules are not the same as either the English R. S. C. or the Indian Rules. Under the Indian Rules amendments always require the leave of the Court.

Under the English Rules amendments generally require the leave of the Court, but a plaintiff can amend his statement of claim without leave at any time before the expiration of the time limited for reply and before replying or where no defence is delivered at any time before the expiration of four weeks from the appearance of the defendant who shall have last appeared. See R. S. C. Order 28, rule 2, but this applies only to an amendment of the statement of claim. In the present case I think the amendment is more in the nature of an amendment

of the writ in English procedure, but of course in Kenya there is no writ and the suits are instituted by plaint and summons.

In England it would appear that if a writ is to be amended before service then in the case of Queen's Bench Division a formal application should be made to the Practice Master who will give his *fiat* on the amendment *practice*. Alternatively the original writ may be withdrawn and a new writ may be issued in its place.

As regards Kenya I think that the only way a plaintiff can amend his plaint. without leave would be under Order 6, rule 19. If that rule does not apply then the plaintiff must obtain leave or else abandon his original plaint and file another one.

Whether Order 6, rule 19 applies or not depends upon the meaning of the word "within" in that rule. If it means "before the expiration of" then I think the rule applies but if it is strictly confined to meaning inside the limits stated both forward and backwards of the date specified for appearance the rule does not apply.

My inclination is to construe it as meaning "before the expiration of" 21 days from the date specified in the summons for appearance. Accordingly I hold that rule applies and that rule 21 applies to enable the defendant to apply to have the amendment disallowed. I would be prepared to extend the time to have the amendments disallowed. I do not take the point that the application should have been by summons instead of by motion. To hold otherwise as regards the application of rules 19 and 21 would mean that the amendment was not properly made in the absence of leave.

The plaintiff claims that amendment before service could be made without leave, irrespective of Order 6, rule 19. This claim is based on a misreading of the commentary at page 454 of the 1953 Annual Practice under the heading Amendment of the Writ by the Plaintiff before Service. The commentary reads:

"The amendment is made by filing an amended copy of the writ (or summons) showing the amendment in red ink at the Action Department".

This refers to the actual mode of making the amendment and does not mean that leave is not necessary. I think it is clear that leave is necessary by the further commentary: -

"In the case of an originating summons, if the summons has been entered at Chancery Chambers the amendment praecipe must be initialed by the Master before a *fiat* to amend will be given.

In the Queen's Bench Division application for leave to amend before service is made to the Practice Master who will give his *fiat* on the amendment praecipe."

The fact that in England formal leave to amend the writ before service is necessary is indicated by the fact that the commentary referred to is under Order 28, rule 1, of the R. S. C. which empowers the Court or a Judge at any stage of the proceedings to allow either party to alter or amend his indorsement or pleadings in such manner and on such terms as may be just.

In England leave would be necessary. There, except in the case of a statement for claim, a plaintiff could not amend before service without leave. In Kenya the question as to whether he can amend or not depends upon whether Order 6, rule 19, applies or does not apply. I think it should be held to apply.

I now turn to the substance of the amendments and the objection to them. They are objected to on three grounds.

- (1) That they introduce a new allegation of fraud. - (2) That to allow this new allegation to be made might have the effect of reviving a claim that was barred by limitation. - (3) That a new relief is claimed namely that the order of the Rent Control. Board be set aside.

As to the first of these grounds it is well settled that a Court will not usually allow an amendment to raise a new allegation of fraud that had not previously been made in the original pleading. This rule is not absolute and in my opinion it does not apply if the original pleading made allegations analogous to fraud. Thus, in *Riding v. Hawkins*, (1889) 14 P. D. 56, where undue influence was pleaded an amendment pleading fraud was allowed.

$\sim$ In this case misrepresentation and concealment were originally pleaded and they are somewhat analogous to fraud. Further, the particulars are unchanged. When the allegation of fraud was added the facts relied on as proving the allegation were unchanged. I think that subject to the question of limitation this is one of the cases in which an amendment pleading fraud to the extent that this is done in the amended plaint should be allowed. As to limitation: this would be a fatal bar to the amendment if a new allegation of fraud were made by it at a time when an action for fraud would have been barred. But I do not think the allegation is a new one. The particulars are unchanged. It remains to be seen whether they constitute fraud and whether they are proved, but they were there from the beginning of the suit and the plaintiff says he will claim that they constitute fraud. I do not think that in that event the suit would be barred. Fraud should be specifically pleaded, but if one took out a writ claiming damages for certain facts set out in the writ in terms complying with the recognized legal definition of fraud, say that stated in *Derry v. Peek*, (1889) 14 App. Cas. 337, in that case I do not think that the absence of the word fraud would. mean that relief would not be given on the basis of fraud or that the suit was not a suit on the basis of fraud. For this reason I would not disallow the amendment on the second ground argued, but the plaintiff will be held strictly to the original particulars pleaded and will not be allowed to add to them in any way at all.

I think the claim for new relief is probably academic. If it is feasible I do not think that it would be barred by limitation at the time of the amendment. It is a proper relief in certain cases of fraud or misrepresentation. The plaintiff wants it in and I think it should be allowed. It can, if not abandoned, be decided at the trial. I do not think it should be disallowed at this stage.

I dismiss the motion with costs.