Patel v Joshi (Civil Appeal No. 39 of 1951) [1952] EACA 42 (1 January 1952)

## COURT OF APPEAL FOR EASTERN AFRICA

Before Sir Barclay Nihill (President), Sir Newnham Worley (Vice-President) and SIR HECTOR HEARNE, C. J. (Kenva)

## JASHBHAI C. PATEL. Appellant (Original Plaintiff)

**B.** D. JOSHI. Respondent (Original Defendant) Civil Appeal No. 39 of 1951

(Appeal from the decision of H. M. Supreme Court of Kenya, Thacker, Ag. C. J.)

Amendment to plaint—Circumstances when leave can be refused—Practice— Powers of Court to call witness in civil matter—Civil Procedure Ordinance, section 22 (b)—Order 15, rule 7.

The appellant, as plaintiff in the Supreme Court, had given evidence in support of his plaint that his claim was for money lent. The defendant denied any loan but admitted the receipt of money for trading transactions and alleged that it had been accounted for. At the close of his case, the plaintiff's advocate applied for leave to amend the plaint and made a further application towards the end of the defendant's case.

The Judge called a bank official to produce the plaintiff's bank account and examined the plaintiff thereon at great length.

*Held* $(7-4-52)$ .—(1) Applications for leave to amend even if necessitated by negligence or carelessness will be granted so as to enable the right question to go to trial unless the party applying was acting *mala fide* or by his blunder he had done some injury to<br>his opponent which could not be compensated by costs or otherwise. In this case<br>the Judge was right in refusing the amendment.

(2) The law and practice in Kenya does not correspond with that in the United Kingdom and by section 22 $(b)$ of the Civil Procedure Ordinance and rule 7 of Order 15 the Court can act on its own motion and call a witness.

Appeal dismissed.

Cases referred to: Yuill v. Yuill, 61 T. L. R. 176, Prasad and another v. Lalit Kaur,<br>(1896) I. L. R. (Allahabad) 403, Eschenchunder Singh v. Sharmachurn Bhutto, 11 Moo.<br>I. A. 7, Steward v. Northern Metropolitan Tramways Co., 5

Nazareth for appellant.

## Mandavia for respondent.

JUDGMENT (delivered by SIR BARCLAY NIHILL (President)).—This is an appeal which presents some exceptional aspects. The appellant, the original plaintiff, brought a suit in the Supreme Court of Kenya for money lent. The defendant who is the present respondent, in his reply denied any loan but admitted receiving some sums of money from the appellant which on his instructions were used for certain trading transactions all of which ended in a loss. The respondent further alleged that he had fully accounted to the appellant for the money so received. To this defence no reply was filed. On the suit coming on for hearing before the learned trial Judge no issues were framed and counsel for the plaintiff began. The second witness called was the appellant who swore that there was no truth in the statements made in the defence that the money he had given over to the defendant was for the purpose of trading. On the contrary he maintained that he had lent the defendant various sums at various times, amounting in all to

Sh. 25,000 (of which he had received back Sh. 5,000). He also deposed to the fact that the defendant had agreed to pay interest on the loans at the rate of 9 per cent per annum. This evidence was entirely in line with the plaint but unfortunately for the appellant it was totally disbelieved by the learned Judge who according to his judgment found as follows: —

"The plaintiff gave evidence at great length and was cross-examined at great length and I have no hesitation in saying that he was an utterly untruthful witness and of a type which is, unfortunately, becoming more common in these bazaar disputes. The whole of his evidence was an effort to show in accordance with his statement of claim that he had merely made loans to the defendant and that there was no truth in the statement that he was endeavouring to speculate in the piece-goods market."

Apart from any question of demeanour or preference for the evidence of the defendant it must be apparent to anyone who reads this record and the documentary exhibits that this finding of fact was abundantly justified. In fact I go further and say that at the close of the cross-examination of the plaintiff he should have been non-suited, for he had admitted the authenticity of Exhibit 5 and Exhibit B which are letters signed by the plaintiff and which show conclusively that he had been engaged with the defendant in trading transactions That the learned Judge felt the same is shown by the following passage in his judgment:-

"I might have found for the defendant at the end of the plaintiff's case, except that the defendant had admittedly received certain sums of money and I thought he ought to account for that money. He has done this to my satisfaction.'

With great respect I think that is where the learned Judge in the Court below went wrong and a great deal has flowed from that error. This suit began before Thacker, J. on 24th April, 1950, and was not concluded until nearly a year later, the judgment being dated 18th April, 1951. During that time irrelevance is piled on irrelevance. The learned trial Judge, for a reason not easy to follow, thought it necessary to examine the appellant's bank account and he himself called a bank official to produce it. Having got it the learned Judge then proceeded to examine the appellant at great length. I assume the object was to test his credibility but in view of the sorry exhibition he had made of himself under cross-examination this was hardly necessary. It is one of the grounds of appeal that this cross-examination by the Judge of the appellant so affected his mind that he was prevented thereby from giving the appellant a proper and fair hearing. This Court has before now observed that a trial Judge should not descend into the arena where his vision may become clouded by the dust of the conflict (see Yuill v. Yuill, 61 T. L. R. 176 at page 178). In a very recent case not yet reported the Court of Appeal in England refused a retrial on this ground because the Court was not convinced that the vision of the learned trial Judge had become clouded. (See Heavns v. Heavns, Air Mail Times, 12th March, 1952.) This is precisely the position in the present case. Whatever view may be taken as to the desirability or the need for the learned Judge's protracted examination of the appellant on the contents of his bank pass book, this took place after he had given his evidence in chief and had been cross-examined by Counsel for the respondent. It was in the course of that cross-examination that he had been forced to make admissions which had destroyed his case.

Learned Counsel has argued this appeal on behalf of the appellant strenuously on the ground that the learned Judge erred in refusing two applications to amend the plaint made by Counsel who appeared for the appellant at the trial. The first application was made at the close of the plaintiff's case and was renewed towards the end of the defendant's case. By that time the learned Judge, by allowing the case to go on had in effect embarked on an inquiry as to whether there had been a full account of the money received by the respondent on account of trading transactions so that it is perhaps surprising that he did not allow the amendment. Nevertheless I regard the reasons he gave for his rejection of the first application as quite unexceptional, and had he then followed his ruling by another dismissing the suit the scandal of this protracted litigation would have been avoided. The material question is can a plaintiff succeed upon a cause of action not alleged by him in his plaint which is inconsistent both with his pleading and his sworn evidence? Since the hearing I am indebted to the learned Vice-President for calling my attention to an Indian case which is very much in point. This is *Prasad and another v. Lalit Kaur* reported in 1896. I. L. R. (Allahabad) at page 403. There the plaintiffs claimed redemption of a mortgage they alleged had been made in 1854. The defendant denied the mortgage but alleged that the plaintiffs held three subsequent mortgages on the lands. the first of which had been made in 1859. The Court held the mortgage of 1854 not proved. It was contended on appeal that although the plaintiffs had failed to prove their cause of action nevertheless they were entitled to a decree to redeem something. Edge, C. J., in his judgment at page 405 said: —

"They cannot be entitled to a decree to redeem a mortgage they had failed to prove. It was not their case that there was any other mortgage than the mortgage of 1854.":

and later at page 406,

"I do not suppose that anyone would suggest that when a plaintiff brings his suit for redemption of a mortgage and the fact is denied that that mortgage was ever made the onus of proof is on the defendant. Any such suggestion as that would be to revolutionize all the principles upon which the rules of evidence have been based for centuries. It is not and never was part of a defendant's duty to make out a case for the plaintiff either by evidence or admission."

During the course of the judgment the learned Chief Justice referred to a decision of the Privy Council in an Indian appeal, the report of which is not available to me but which was given as far back as 1866. In that case their Lordships stated that "they desired the rule observed that the state of facts and the equities and ground of relief originally alleged by and pleaded by the plaintiff should not be departed from" (Eschenchunder Singh v. Sharmachurn Bhutto, 11 Moo. I. A. 7). And finally, at page 409, the learned Chief Justice concluded his judgment as follows: -

"It is in accordance... with principles of sound common sense and justice, accordingly to which a man who brings a false case, or even brings a true case and fails to prove it, should not get a decree on a different cause of action from that alleged by him, and a cause of action which he has repudiated in the Court of first instance ..."

I have quoted somewhat extensively from this judgment because it is one based on Privy Council authority and it fits so closely the circumstances of the case before us. I am of the opinion therefore that this appeal must fail because the learned Judge, did in the end arrive at a right decision in dismissing the appellant's suit although he covered much unnecessary ground before doing so. It has been said that because the appellant did not reply to the defence, the fact that the respondent admitted receiving money on account of trading transactions was in issue, this justified the Judge in requiring the defendant to give evidence of accounting. I cannot accept this proposition. No issue as regards an account was framed at the commencement of the trial which was opened by

the plaintiff on the basis that there was no truth in the respondent's answer. I offer this crumb of comfort to the appellant that in my opinion if he is advised to pursue the question of an account in respect of the whole or any part of the sums he advanced to the respondent. I do not think he could be estopped by the doctrine or res judicata. In other words, as in my view the Judge should have found for the respondent on the ground that the appellant had not proved his cause of action, I consider that all that part of the judgment in which there are findings of fact on the issue of accounting should be regarded as null and void.

Two other matters can be briefly dealt with. At the beginning of the hearing we asked Counsel on our own motion to address us on the question of illegality. We did this because from the judgment and record there was every indication that the appellant's object in advancing money to the respondent for trading purposes was to circumvent the law with regard to trading licences. After some hesitation we came to the conclusion that there was not sufficient material before us in the evidence to establish beyond doubt that the various transactions which the respondent said he undertook on behalf of the appellant were of the species for which by law a trader's licence was required. Accordingly we felt unable to say that illegality was patent on the face of the pleadings. The other matter, although on my view of this case, it has no relevancy to the issue of this appeal, involves an important point of practice. Mr. Nazareth has submitted that a Judge in a civil case has no power to call a witness.

Section 22 (b) of the Kenya Civil Procedure Ordinance is in the following terms:-

"Subject to such conditions and limitations as may be prescribed, the Court may at any time, either of its own motion or on the application of the party—

$(b)$ issue summons to persons whose attendance is required either to give evidence or to produce documents or such other objects as aforesaid."

This does not, however, deter Mr. Nazareth. He has argued that because the Rules Committee in revising Order 15 (an order which is modelled closely on Order 16 of the Indian Civil Procedure Rules) omitted rule 14 of the Indian Order, that is evidence of intention to follow the English practice where in a civil case the conduct of the case is left entirely in the hands of the parties (13 Hailsham 756 note $(h)$ ). Order 16, rule 14, of the Indian Rules is as follows: —

"14. Subject to the provisions of this Code as to attendance and appearance and to any law for the time being in force, where the Court at any time thinks it necessary to examine any person other than a party to the suit and not called as a witness by a party to the suit, the Court may, of its own motion, cause such person to be summoned as a witness to give evidence, or to produce any document in his possession, on a day to be appointed, and may examine him as a witness or require him to produce such document.'

Whatever may have been the intention behind the action of the Rules Committee, the omission of rule 14 cannot override the express provision of section 22 (b) of the Code. Furthermore there is rule 7 of Order 15 which is as follows: ---

"Any person present in Court may be required by the Court to give" evidence or produce any document then and there in his possession or power."

I see nothing therefore in Order 15 which imposes a condition or limitation. of the right of the Court to act on its own motion conferred by section 22.

I agree with Mr. Nazareth that where the parties are represented by Counsel it is preferable that ordinarily the conduct of the case should remain in their hands. Not to do so might indeed lead to the error of descending into the arena. It is one thing, however, to accept that principle and quite another to argue that the law and practice in Kenya on this point corresponds to that of the United Kingdom. In fact it does not and the legislature may well have intended that it should not. Sometimes, particularly in backward areas, litigants in a civil case may often appear without Counsel. If the hands of the Court were tied as it is suggested by Mr. Nazareth that they are tied, the trial of such cases might present great difficulty and the end of justice might be perverted.

I conclude with one final observation. The appellant has shown considerable temerity in coming to this Court at all. His pleading at the Court of trial was based on a false premise, and he gave evidence in support of it. I appreciate that, if my view is accepted by this Court that the learned Judge's finding of fact that the respondent had fully accounted for all money received may be capable of reagitation, then it may be said that the appellant has gained something by his appeal.

Nevertheless taking into account the appellant's conduct and the fact that he has failed to establish that the trial Judge arrived at a wrong conclusion I have no hesitation in deciding that in my view his appeal should be dismissed with costs. As this is also the opinion of my learned brothers although to some extent they have arrived at the same view by different routes, an order to that effect will be made accordingly.

SIR HECTOR HEARNE (Chief Justice, Kenya).—The plaintiff in Civil Case 570/49 of the Supreme Court of Kenya, who is the appellant in this appeal, sued the respondent for the recovery of Sh. 25,000 alleged to have been lent to the latter, less Sh. 5,000 which he admitted had been repaid, together with interest amounting to Sh. 5,500, a total of Sh. 25,500.

The respondent denied that the appellant had lent him any money. In the statement of defence it was alleged that the appellant had deposited with the respondent Sh. 21,000 (less Sh. 5,000 repaid) and had instructed the respondent to buy certain goods for resale on account of the appellant: that the respondent had purchased goods to the value of Sh. 27,106/37 to be sold on account of the appellant as and when directed by him: that on 1st November, 1946, the appellant was indebted to the respondent in the sum of Sh. $11,106/37$ , being the difference between Sh. 27,106/37 and Sh. 16,000, on which the appellant agreed to pay interest; and that on 31st March, 1949, the appellant was indebted to the respondent in the sum of Sh. 14,149/37 and agreed that the respondent should take over the appellant's goods which had been purchased on his account in full satisfaction of his liability to the respondent. No reply was filed. At the close of the appellant's case in the course of which he tenaciously maintained that the sum of Sh. 25,000 less Sh. 5,000, namely Sh. 20,000, was a loan, the advocate who appeared for him applied for leave to amend the plaint by adding an alternative pleading "that the said balance of Sh. 20,000 (namely Sh. 25,000 less Sh. 5,000) was money paid by the plaintiff to the defendant for the purchase and sale of cloth on plaintiff's account and the defendant was liable to account therefor to the plaintiff. The defendant has neglected or refused to render to the plaintiff a full or true or any account of the said money or of any cloth purchased or sold on plaintiff's account and neglected or refused to pay any money in respect thereof", and by adding an alternative prayer "that the defendant do render to the plaintiff a full and true account of the said balance of Sh. 20,000 and of all purchases and sales made by the defendant on the plaintiff's account and pay to the plaintiff such sum as may be found due to the plaintiff on such account".

The learned trial Judge refused the application. In his judgment he said: "I might have found for the defendant at the end of the plaintiff's case except that the defendant admittedly received certain sums of money and I thought that he ought to account for this money". The respondent was called upon to enter on his defence. His evidence in chief was of the briefest nature. He denied the receipt of any money as a loan. He admitted the receipt of Sh. 16,000 "as a trade transaction" and contented himself with saying that "the whole account had been settled". He was, however, cross-examined at length in regard to his dealings in goods with the appellant's money.

At the end of the respondent's case a second application was made to amend the pleadings on the same lines as the first amendment but it was again refused.

The Judge found that the respondent had received Sh. 16,000 only from the appellant, not as a loan but in the course of "a trade transaction" as alleged by the respondent and that he had accounted for this money to his satisfaction. The appellant's action was, therefore, dismissed with costs.

It was argued by the advocate for the appellant that when the Judge refused the application to amend the plaint at the end of the appellant's case the only questions he had to decide were whether the appellant had lent the respondent Sh. 20,000, whether the respondent had returned any part of the loan, what balance, if any, remained due and whether the appellant was entitled to the interest he claimed: and it was stressed that the question of whether the respondent had duly accounted for the money he had received from the appellant "as a trade transaction" and not as a loan was decided by the Judge although, by reason of his refusal of the proposed amendment, he had declined to allow the question to be put in issue.

I agree that when the learned Judge refused to allow the plaint to be amended his decision in the case fell to be determined by his answers to the questions contained in the first submission. For the appellant's claim in the absence of an amendment was a claim simpliciter for the return of money alleged to have been lent. But it is wrong to say that the question contained in the second submission had not been put in issue or, I would add, that it was not relevant to an adjudication on the questions contained in the first submission. The appellant as I have said did not file a reply and by virtue of the provisions of Order 8, rule 17, all the averments in the statement of defence were put in issue. Moreover the defence raised a most pertinent issue to which the Judge had of necessity to direct his attention. As he pointed out the respondent had admitted the receipt of money from the appellant and if he failed to discharge the onus of proving, as he undertook to do, that there had been business dealing between the parties and that he had accounted to the appellant for the money he had received, the claim of the appellant that the money the respondent had received was a loan would have emerged in a high degree of probability. The fact that the respondent offered very perfunctory evidence when examined in chief, although in the opinion of the Judge he satisfactorily accounted for the money he had received in the course of the cross-examination on which the advocate for the appellant chose to embark, did not make the issue any the less an issue in the case and it is not a ground for asking for a new trial that the Judge decided that issue.

Turning to the first submission it is in my opinion correct, as the advocate for the appellant submitted, that if the Judge had found that the respondent had not accounted for any part of the money he had received, he would not have been able to give the appellant any relief: for assuming the Judge was right in refusing to allow the plaint to be amended, that consequence would necessarily flow from the appellant's tenacity in maintaining on oath that his

claim was founded on a loan and nothing but a loan. But we are not concerned with the legal consequence, whatever it may be that would flow from the appellant's conduct. The important question for our consideration is whether the Judge was right or wrong in refusing the amendment.

It was on this aspect of the case that the advocate for the appellant in the course of a long argument had least to say. He referred merely by name to the cases in the Annual Practice, 1951, at page 454, and argued that the amendment should have been allowed as thereby the real substantial question between the parties could have been raised. An examination of the authorities goes to show that where, for instance, a plaintiff has made a mistake an amendment, subject to an appropriate order as to costs, is normally allowed so that the real issues between the parties can be determined, unless some injury has been done to the defendant which could not be compensated for by costs. But the mistake must be capable of a bona fide, honest explanation and in particular there must have been no intention to mislead the Court.

In Steward v. The Northern Metropolitan Tramways Co., (54 L. T. R. 35) Pollock. B., said: $-$

"The rule is examined and explained in Claparede v. The Commercial Union Association (32 W. R. 262), I said there, 'The rule of conduct of the Court in such a case as this is that, however negligent or careless may have been the first omission, and however late the proposed amendment, the amendment should be allowed if it can be made without injustice to the other side. There is no injustice if the other side can be compensated by costs: but if the amendment will put them into such a position that they must be injured, it ought not to be made.' That does not depart from the rule laid down by Bramwell, L. J. but it shows how far the Court will go, as appears from the use of the expressions 'however negligent' and 'however late'. The rule is more closely stated by Bowen, L. J. in the same case as follows. The question must be whether, if the slip is set right, so as to enable the right question to go to trial, the parties will be put into the position they were in before the slip was made: for if so, that should be done. In most cases it is a question of costs."

In "The Alert", (72 L. T. R. 124) the President said: -

"Two propositions appear to me to be well established: First that although it may be that the plaintiff was lax or forgetful in not putting his pleading in the form in which it should have been originally, if any harm arising from that can be compensated for by costs, there is no reason for not allowing him to repair the error. The second proposition appears to me to be equally clear, viz. that if the Judge finds that owing to the mistake, or whatever it may have been, of the plaintiff, in not having put his pleadings right originally, there has been such an injury to the defendant or such a change in the position of the defendant that he cannot get justice done then, of course, it is equally clear that such an amendment ought not to be allowed."

In Cropper v. Smith, (26 Ch. D. 700 at page 711) Bowen, L. J., said: -

"I reserve to myself the right to consider how a case should be dealt with where there has not been merely a mistake but an attempt to mislead. I do not here see any attempt to mislead."

While in Tildesley v. Harper, (10 Ch. D. 393, at page 396) Bramwell, L. J. said: —

"My practice has always been to give leave to amend unless I have been satisfied that the party applying was acting *mala fide* or that, by his blunder, he had done some injury to his opponent which could not be compensated for by costs or otherwise. I confess that if the present case had come before me I should have had some doubt whether the defendant had made a bona fide mistake, as the mistake is so very obvious. I should probably have required some affidavit or statement by the solicitor to show that the slip in the pleading was a bona fide one, and if satisfied on that point, I should not have refused leave to amend."

There can be no doubt that if Bramwell, L. J., had not been satisfied that the mistake was a bona fide one, he would not have thought that the amendment should have been allowed.

$\mathbf{1}$

Can the appellant's applications be said to fall within the principles laid down in these cases? Clearly not. The advocate for the appellant said that the plaint could originally have been framed in the alternative on the basis of a loan as well as on that of a trade transaction. This, however, was not done and, if it had been done, the appellant would have found himself in difficulties as soon as he came to be cross-examined. No mistake could be alleged, as the position of the appellant was that he had made no mistake. What happened was that after he had given evidence in support of one cause of action, he sought to add to it a different cause of action which could only be founded on facts which he had sworn were not true. Amendments are allowed as a concession to human liability to error, not to enable a litigant to play fast and loose with his opponent and the Court. In these circumstances the Judge decided he must stand or fall by the plaint and in my opinion he was quite right in refusing the amendment.

On the facts of the case, in my opinion the Judge was right in holding that the respondent had accounted for Sh. 16,000 which he admitted having received (and that this finding is not vitiated by any of the circumstances contained in the grounds of appeal) but wrong in holding that the respondent had not received an additional Sh. 4,000 for which he has not accounted. But for the purposes of this appeal it is enough to say that both in the documentary evidence as well as the oral evidence believed by the Judge there was ample justification for the view he took that the appellant's claim was founded on the false allegation—and it was the only allegation on which the plaint was founded-that he had lent the respondent Sh. 20,000—that the Judge was right in refusing the amendment and that, in consequence, the appeal before us cannot be allowed. I would dismiss it with costs.

SIR NEWNHAM WORLEY (Vice-President).—The pleadings and the relevant facts in the action which has led to this appeal have been set out in the two judgments which have just been delivered and I do not propose to repeat them. The appellant is asking that the judgment of the Supreme Court dismissing his action with costs be set aside and the matter remitted for re-trial for reasons which I set out in my own words and arrangement:-

- 1. That the Judge erred in finding that the sum of Sh. 16,000 admittedly received by the respondent from the appellant was not advanced by way of loan. - 2. That the Judge erred in holding that the respondent had purchased Italian tweed of the value of Sh. 27,100/37 for the account of the appellant. - 3. That the Judge erred in not finding that a further sum of Sh. 4,000 had been received by the respondent from the appellant or should be treated as having been so received. - 4. That the Judge erred in refusing appellant permission to amend the plaint by adding a cause of action for an account with a consequent prayer for relief.

- 5. That having refused this amendment the Judge erred in considering whether the respondent had accounted to the appellant for the Sh. 16,000 received. - 6. That the Judge erred in himself calling a witness to produce irrelevant evidence of the appellant's banking account. - 7. That the conduct of the trial was prejudiced by the Judge's lengthy crossexamination of the appellant on matters irrelevant to the case.

As to the last two grounds of appeal. I am in full agreement with everything that My Lord the President has said on these two questions and have nothing to $\mathbf{b}\mathbf{b}\mathbf{c}$

The first three grounds seek to attack findings of fact: as to the first two. I cannot conceive any Court coming to any other conclusion on the evidence. particularly having regard to the evidence of the respondent's partner Rambhai and the two documents. Exhibit B and Exhibit 5, relating to the sale of "Italian" material" and "tweed" which the appellant admitted having written and signed.

As to the Sh. 4,000, the appellant sought to establish his claim to this by calling one Somehand into whose hands this money had come. Somehand, however, swore that he had received the money direct from the appellant and retained it himself for a speculation in blankets but had credited the respondent in his books, with the respondent's knowledge and consent, because the appellant was not a licensed trader. It appears to have been intended only as a "book entry". Somehand's evidence was confused and contradictory in some respects, but if, as the learned trial Judge thought, the appellant (and it would seem Something also) thought that the appellant's speculations were tainted with illegality, the explanation given by Somehand was a reasonable one and, for myself. I cannot say that the Judge was not justified in accepting it, particularly as he held the appellant to be utterly untruthful and was satisfied beyond doubt that the respondent had told the truth. The question whether Somehand should account to the appellant for this Sh. 4,000 does not arise in this appeal.

I pass on to consider the fourth and fifth grounds which have caused more difficulty.

I am in full agreement with My Lord the President that the learned trial Judge would have been well advised to have dismissed the appellant's action at the close of his case without prejudice to his right to bring an action for an account if he was so advised. A plaintiff is only entitled to succeed upon his cause of action, which has been defined as "every fact which it would be necessary for the plaintiff to prove, if traversed, in order in support his right to the judgment of the Court" (per Lord Esher, M. R., in *Read v. Brown* (1888) L. R. 22 Q. B. D. 128 at page 131). Here the appellant was seeking to add a new cause of action based upon facts which he was not merely not seeking to prove but persistently declaring to be false. Moreover the learned trial Judge was at that stage satisfied of the falsity of the appellant's case, for that is the inference I draw from his remark, "I might have found for the defendant at the end of the plaintiff's case". The power to grant amendments is discretionary and no exception can be taken to the reasons given by the Judge for refusing the indulgence sought by the appellant in the following passage: -

"It seems to me that a plaintiff to an action ought so to plead as to disclose the true cause of action and ought not to plead in a way which is designed to mislead the Court, and that the Court should not allow him at a very late stage to amend when his bluff is called: to give such leave to amend to a plaintiff who has been palpably untruthful and, moreover, who has given evidence which is not in accordance with the proposed amendment seems to me to tend to encourage perjury."

But instead of non-suiting the appellant as he might well have done, the learned Judge called on the defence for the purpose, as he states in his judgment, of satisfying himself that the respondent had accounted for the money which he had admittedly received. No doubt this was inconsistent with his refusal to grant the amendment but inconsistency is of itself no ground for interfering with a judgment if it has not led to any injustice. I have no doubt either that in embarking on this course the learned Judge did so in the interest of the appellant and with the object of doing him full justice and it is curious to find the appellant now complaining so bitterly of this. I do not think there is any justification at all for Mr. Nazareth's suggestion that the trial Judge had precluded himself from finding that the defendant had not fully accounted, or had precluded himself from giving the appellant relief if he had so found. Amendments may be made at any stage of the proceedings up to judgment and I see no reason to doubt that had the respondent's evidence failed to satisfy the learned Judge he would have allowed such amendments and granted such relief as the justice of the case called for.

The appellant took full advantage of the opportunity afforded him of crossexamining the respondent and Rambhai upon the trading transactions and the accounts, and the resulting evidence fully justified the learned Judge's findings on this question. Whatever criticism may be made of the inconsistency of the procedure followed, it has not in my opinion affected the decision on the merits of the case. There has been no injustice to the appellant and I therefore agree that this appeal be dismissed with costs.