(COURT OF APPEAL)

ALl SAEED BAASHAR v. AHMED ALl SALEH

AC-REV-143-1959

 Principles

·  Civil Procedure—Amendment of pleadings—Leave to amend refused where malafides or prejudice to other party—Civil Justice Ordinance, Ord. 11, r. 8, explained

·  Contract—Quasi-contract—Account stated  (sanad of amana owed)—Defences—Non est factum, fraud or misrepresentation only defences—Mistake no defence

Respondent began an action against applicant upon an account stated signed by him. At framing of issues applicant’s defence was a flat denial. Later, after some delay, applicant sought to amend his defence to allege that the account stated was part of a partnership account, and to dispute the effect of one of the items.
Leave to amend being refused by the Province Court, applicant applied for revision of the refusal order.
Held: (i) The question of amendment of a defence in the pleadings is not governed by Civil Ordinance, s. 215, but by First Schedule to that Ordinance, Ord. II, r. 8.
(ii) The underlying principle of Order II, r. 8. is that amendment of pleadings should always be allowed so as to arrive at the real issue between the parties. provided that leave to amend is not sought in mala fides and that amendment wou1d not prejudice the other party except to an extent that could be compensated for by costs, etc.
(iii) In particular, leave to amend a defence in the pleadings should be refused where the proposed amendment would be no help to the defendant, since it would be no answer to the plaintiff’s claim, or where it would introduce a totally different, new and inconsistent case and the leave to amend was sought only after an intentional or a great delay.
(iv) In an action upon an account stated, mistake in the account, or incompleteness of the account, is no defence. The only available defences are non est factum, i.e., that if the defendant signed the account, he signed thinking it to be a totally different kind of document, or, where the defendant admits being aware of the nature of the document when he signed, that his signature was procured by some fraud or misrepresentation.

Respondent began an action against applicant upon an account stated signed by him. At framing of issues applicant’s defence was a flat denial. Later, after some delay, applicant sought to amend his defence to allege that the account stated was part of a partnership account, and to dispute the effect of one of the items.
Leave to amend being refused by the Province Court, applicant applied for revision of the refusal order.
Held: (i) The question of amendment of a defence in the pleadings is not governed by Civil Ordinance, s. 215, but by First Schedule to that Ordinance, Ord. II, r. 8.
(ii) The underlying principle of Order II, r. 8. is that amendment of pleadings should always be allowed so as to arrive at the real issue between the parties. provided that leave to amend is not sought in mala fides and that amendment wou1d not prejudice the other party except to an extent that could be compensated for by costs, etc.
(iii) In particular, leave to amend a defence in the pleadings should be refused where the proposed amendment would be no help to the defendant, since it would be no answer to the plaintiff’s claim, or where it would introduce a totally different, new and inconsistent case and the leave to amend was sought only after an intentional or a great delay.
(iv) In an action upon an account stated, mistake in the account, or incompleteness of the account, is no defence. The only available defences are non est factum, i.e., that if the defendant signed the account, he signed thinking it to be a totally different kind of document, or, where the defendant admits being aware of the nature of the document when he signed, that his signature was procured by some fraud or misrepresentation.

Judgment

Abdel Mageed Imam J. January 26, 1960:—This is an application for revision submitted on behalf of applicant (defendant) Ali Saeed Baashâr against the order of the Province Judge, Kassala Circuit, dated June 21, 1959, refusing to grant leave to amend the statement of defence.

The facts of the case, relevant to the disposal of this application, are in brief:

By CS-747-1959 respondent (plaintiff) Ahmed Ali Saleh was allowed action on May 16, 1959, for the recovery of the sum of  £S.668. being “amana” allegedly deposited with applicant. Both parties are merchants at Tokar.

The case was fixed for framing of issues on June 14, 1959, at which date a detailed oral statement of claim was given by respondent’s advocate, whereupon the advocate for applicant, and without reasons given, asked for an order of pleadings. This application was refused by the court on

 the ground that a detailed statement of claim was taken, whereupon the advocate made a flat denial. Issues were framed and were agree upon and the case adjourned to June 21, 1959, for forwarding lists of witnesses. Plaintiff’s advocate submitted his list, but defendant’s advocate promised to do so within five days. The applicant’s advocate, instead of submitting  the list of witnesses required, petitioned the court on June 21, 1959, that he be allowed to amend his statement of defence.

The following order was made: “It is rejected. Issues have already been framed and it is too late to amend now. Section 215 does not cover this case.”

On the same day, applicant’s advocate, without revealing his intention to do so to the court below, prepared an application to this court. The case was ultimately fixed for hearing on July 1. 1959. both advocates appeared on this date and the advocate for the applicant applied for adjournment pending the determination of his application for revision. The court refused to grant an adjournment in view of the fact that it had no knowledge of such application and treated the whole conduct of applicant’s advocate as dilatory in handling the case, whereupon, seemingly without leave, the advocate unseemingly withdrew. Judgment followed.

As we see it, this application should fail. The court below was right when it said that section 215 does not cover this case; for this section speaks of amendment of any defect or error in the proceedings. The relevant section, however, upon which the determination of this application depends is Civil Justice Ordinance 1929, r. 8, Ord. II, which reads:

“The Court may at any stage of the proceedings before judgment allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.”

The gist of the principle underlying rule 8 is that amendments which a party desires to make in his own pleadings must be freely granted in order that the real question in issue between the parties be determined, provided that the application is not done in mala naes and that no injury to the opposite party is occasioned save such as can be sufficiently compensated by costs or other just terms.

These two general exceptions stated above, which warrant refusal of an amendment, fall under five detailed heads:

1. Where the amendment is not necessary for the purpose of determining the real questions in controversy between the parties, as where it is:

(i) merely technical, or

(ii) useless and of no substance.

 2. Where the plaintiffs suit will be wholly displaced by the proposed amendment.

3. Where the effect of the amendmer would be to take away from the defendant a legal right which had accrued to him by lapse of time.

4. Where the amendment would introduce a totally different, new and inconsistent case, and the application is made at a late stage of the proceedings.

5. Where the application for the amendment is not made in good faith. (See Mulla,596-597- (12th ed)

Mulla explains under i (ii) above that the object of the general rule is to enable the real questions in dispute to be raised in the pleadings, and that, therefore, leave to amend should be refused to the plaintiff when the proposed amendment would not help him in substantiating his claim, and to the defendant, when the proposed amendment would not help him in supporting his defence (Mulla, op. cit., at 597).

In Wood  v. Earl of Durham (1888) 21 Q.B.D. 501, where A sued B for libel, and B pleaded justification, and B afterwards applied to amend his defence by adding a paragraph which virtually contained a plea in mitigation of damages, but was no answer to the action, the application was refused.

It is clear from the examination of the statement of defence, which applicant attached to his application, that it contains no answer to the claim. Applicant admits that Exhibit P. i was duly executed. Exhibit P. i is an acknowledgment of balance of a debt due, showing certain deductions from a deposit of a lump sum; the balance due being described as “ amana” owed by applicant in favour of respondent.

Applicant now contends that the balance due was in fact in respect of a partial account in respect of a partnership and that the word “amana” was entered by mistake in the sanad. He admits the contents of the document but further contends that one single item, viz, the sum of £S,375 shown therein does not represent his true rights under the alleged partnership. It must be stated that Exhibit P. i  does not speak of any partnership, nor does it say that the accounts shown therein are partial accounts. Mistake in this case is no defence and once a person puts his signature or seal to a document, he is contractually bound by his signature. The only defence given to him, generally speaking, is the principle contained in the common law maxim: Scriptum productum non est factum suum, i.e., being of a totally different nature from that which he thought he was signing; a plea which is not applicable in this case as applicant admits being aware of the nature of the document but alleges that it shows only part of the account. This plea is only open in case fraud or misrepresentation is alleged, a thing which applicant did not contend. See Cheshire and Fifoot 206 (4th ed).

Rule 4 above, which states that no amendment should be allowed which would introduce a totally new and different case, is also applicable to the facts of this case as applicant, though he was aware of the nature of the accounts taken, now seeks to introduce the totally new and different element of partnership (see Mulla, 600).

In refusing to allow the application on the ground that it was motivated by dilatory tactics on the part of applicant’s advocate, the court below was right in so far as its finding is covered by Rule above mentioned. Mulla has this to say at p. 603:

“Leave to amend will not be given if the party applying  is acting mala fide, as where there is no substantial ground for the  proposed to be set up by the amendment. Want of bona fides may be inferred from great delay in making the application.”

Though the facts of this case do not amount to great delay, yet it amounts to intentional delay on the part of the advocate concerned, whose conduct, which we took note of and censure sternly. Was very blameworthy all through the proceedings, and we think it was his duty to uncover the true facts to the court that he was not well instructed and ask for adjournment at the very first hearing.

For the above reasons explained, this application is dismissed with costs and the decree of the Province Judge, Kassala Circuit, dated July 1,1959  is to stand. Respondent is awarded  costs taxed at £S.15.000m/ms

M. A. Abu Rannat C.J. January 26, 1960:—I concur.