Appeal and Revision - Amendment of plaint - Denial of application
therefor - Whether can be subject of application.for_revision.

Civil Procedure - Amendment of plaint - Under what circumstances should
be granted - Whether such circumstances. established~

Civil Procedure - Cause of action - Definition of - Whether more than
one cause off action present - \ihether cause of action merged.

Civil Procedure - Res judicata - Definition of - Whether estoppel by
record present --Whether cause of action.in previous jUdgment merged.

Costs and fees - Amendment of plaint - Ap}?lication from denial of request

therefor - Amount of fees based on proposed amended sum.

Costs and fees - Mistake of court - Remission of fees only ~lhere application
r occasioned thereby.

Plaintiff agreed with a third party to sell certain lands on
commision at a certain rate. Subsequently plaintiff agreed in
writing with defen~t that defendant would buy those lands at that
rate and woul d subdivide the land into twenty five sub-plots which
plaintiff was to sell and profits and losses were to be shared

between them in equal proportions. Nine plots ''lere sold and plaintiff
submitted offers to defendant to purohase ten out of the remaining
sixteen plots at a price showing a reasonable profit, but defendant
refused such offers. Defendant completed the purchase of the remain-
ing plots in his own name without giving plaintiff the opportunity

of coming in and paying half the purchase price securing for himself
half of the expected thereby profit on their ultimate resale which

he alleged he was entitled to do under the contract. Plaintiff sued
defendant and in his plaint his advocate restricted the claim to one
for damages for failure to accept the offer as to the ten sub-plots.

* Court: Bennett, C.J. and J .G. Mavrogordato, Esq •

Plaintiff "protested vehemently" to the advocate that the claim

should be the larger one for a one-half share in the remaining

sixteen plots \'lhich defendant allegedly held in trust for plaintiff
subject to payment by plaintiff of one half the purchase price plus
expenses. An amended statement of claim was also restricted to the
minor claim. The hearing of the suit was begun on June 8, 1943 but

on July 14, 1943 at ·the req:uest of both part ies the hearing was
adjourned ~ ~ with a view to settlement. The settlement never
matured, and the suit vias struck out for lack of prosecution. Four
months later plaintiff applied to restore it and fifteen days after
his applicat~~n to restore had been granted, he applied to amend the
statement of claim in "hich all reference to the minor claim was
omitted and the major claim was substituted. The application to amend
was denied in the High Court. On revision the Court of Appeal ,-it· was

Held: (i)' Three rules govern the discretion and duty of the
co~t~ when an application to amend the pleadings is made. These

are:

(a) No amendment should be allowed vlhich .lill work an injustice
or cause a prejudice to the opposite party which cannot be compensated
by an appropriate order as to costs.

(b) Subject to the first rule, such an application should always
be allowed if a refusal to all 0"1'1 it may result, .b!:.:., there is a sub-
stantial possibility., in some bona fide cla:\.m or defence to a claim
being barred by Civil Justice Ordinance 1929, s. 40 as ~ judicata.

(c) Where neither the first nor the second rules have any
application, the court has discretion to allow or disallow the proposed
an:endment according to what in all the circumstances may appear the
more convenient and just course, bearing in mind that one of the main
purposes of Order II, rule 8 is to prevent multiplicity of suits and
the amendment should ordinarily be allo\~ed. However, where there is'
little or no connection betHeen:the subject matter of the plaint and
the subject matter of the proposed amendment, the court may refuse

it even early in the case, especi.ally.if the issues are diffioul t .

or complex.

( il) . In this case, rule one does not apply because defendant
can be fully compensated in costs for any prejudice he may suffer.
(iii) In this case, rule twq does not apply because there is

no substantial possibility that plaintiff may be barred from bringing
a fresh suit as to the subject matter of the proposed amendment as

£2.!! judicata. There would be no estoppel by recol'!d because, althouch
both claims arise from the same contraot, none of the issues of law
and fact upon which they depend are the same. There could be no
merger of the cause of action, because the issues in the subsequent
suit would not depend upon or arise out of the same cause of action
as the present suit; it is sufficia~t to constitute a different
cause of action that there is even one different or substantial facts,
as is the case here.

,(iv) In this case, as to rule three, if the application to

amend ~ granted everything that has so far happened will be virtually'
thrown away and it will be as if plaintiff were starting a new suit
based on his major claim. Herely saving court fees already paid is
not a suffioient reason to allol-/ amendment, so the application was
properly refused.

Anderson v. Kalgaria,'(1886) 12 Ca1.339 (U.S.)
Duncan v. Jeetmall, 19. Cal. 372 (1892) (U.S.)

Fateh Singh v. Jagc;nnath Bakhsh Singh, (1925), 52 I.A. 65 (India).
Read v~ BrOlolIl (1889)" 22 Q..B.D 128. (1888).

Ste\'/ard v. North.t.letropo1:!.;!;C!Jl Tramways Co. (1886) 16 Q..B.D. 118 •

Civil Justice Ordinance 1929, SSe 40, 51, 52 and 174 (a)~

Civil Justice Ordinance 1929, Ord. 2, r, 8 and Ord. 22, r, 10, and
Hems 13 and 15.

English Code of Civil Procedure. Ord. 28, r. 1.

Indian Code of Civil Procedure, Ord. 2, r. 2.& Ord. 6, r. 17.

Revision.

1'Sf^uilet.t, :C~J~.,This is an application for the revision
of an order of the High Court, Khartoum, refusing an application by the
applicant, the 1?laintiff in the suit, for leave to amend his statement.

Qf claim. The application comes to this court in somewhat peculiar
oircumstances, since the hearing of the suit had.a1ready begun, f!nd I do
not think that section 114(1) of the Civil Justioe Ordinance 1929 oa.n
ordinarily be used to obtain revision of a refusal to grant an application
t() amend a plaint or pleading made during the course of the hearing. In
thi~ case, however, the hearing was ,adjPurned ~ ~ as lonti ugo as'

July 14, 1943, ~d on .:[u1y 15., 1944, an o:ro.er was made dismissing the~t     

for lack of prosecution. On November 30, 1944, the plaintiff applied ~

the order of dismissal to be set aside and on December 2, 1944, this was

 upon terms. ~teen days later, and before any date had been for the reswned. hearing, the plaintiff submitted the application
to amend his stateme~t of olaim which is now before us.

ftle pleadings that have so far been delivered in this suit &re' about

•• remote from their proper forms and from intelligible statement of the
respective oases of the plaintiff and defendant as they very well could

be •. It appears that the bro~ lines of the plaintiff's ca~e .are 'as follows:

In.1939 Messrs. Contomichalos, na.z:ke &: Co. (1929) Ltd. agreed with him
that he should sell on their 'Qeha1f on commission five plots of land in
Khart own , comprising some 10,000 square metres, by dividirig the five

, ~lots into twent~liVe sub-plots. and selling each sub-plot separately at
the rate of P.T.45 per square metre •. In pursuanoe of that.agreement he
arranged a sale of the whole five plots direct from Messrs. Contomichalos,
Darke &: Co. (1929) Ltd. to the defendant at the rate of PT.45 per square
metre. Contemporaneously and as part of his .general arr~gement- with the
defendant, he entered into two similarly worded written agreements, dated
respectively July 9, and October 1, 1939~ under which the defendant was

to divide the said five plots, and the plaintiff was to sell the ,twenty-
five sub-plots, subject to the defendant's oonsent to each sale', and the
profits or losses were to be ,shared between them in equal proportions.
ClauSe 4 of the said agreement provided as follows,

"(4) The first party and the second party undertake to pay jointly
and equally to Messrs. Contomichalos, Darke &: Co. (1929) Ltd.                                                                    .

the whole value of any pieoe agreed by the. said p$l"ties to be

sold by instalments or otherwise."

The defendant duly divided the said five plots into twenty-five sub-plots

and that the, plaintiff; duly sold nine of these sub-plots and ~he profits
on these sales were duly divided between them. In March 1942, J.!essrs.
Contomichalos, Darke &: Co. (1929) Ltd. were pressing the defendant to
oomplete the purchase of the remaining. 16 plots and finally gave the
defendant until April 16, 1942, to oomp1ete the purchase. 'Prior to April,
16, 1942, the plaintiff submitted to the defe~dant offers to purohase ten
out of the r~in.ing sixteen plots at a prioe which showed a reasonable
profit, but the defendant wrongly refused to aocept the said offers. On
Apz!i1 16, 1942, the defendant oomp1eted the purchase of the said remaining
sixteen plots and later had ~hem registered in his own name without giving
the plaintiff the opportunity,'to which he alleges he was entitled under

clause 4 of the said aereement , of coming in and paying half of the
purchase price and so securing for himself half of the expected profit
on their ultimate re-sale.

On the basis of the above allegations, the plaintiff's possible
claims are, first, for damages for the failure by the defendcnt to

accept the offer procured by him fer the ten plots, and for a declarati6n
that the defendant holds the remainll1g six plots, subject to the plaintiff
paying one-half of the purchase price and expenses paid by the defendant
in respect of the sale thereof to him, in trust for them both in equal
shares, and alternatively if his olaim for damages in respect of the ten
plots fails, that tIle defendant, subject as .above stated, also holds

those ten plots in trust for them both in equal shares. The plaintiff
cannot, of course, both recover damages in respect of the ten plots and

at the same time claim the right to purchase a half share, because the
latter necessarily involves either a 1·laiver or a dismissal of the former
claim. So long as his claim for damages remains upon the record, his

claim to purchase a half share in these ten plots must remain an alternative
claim contingent on his failing entirely in his claim for damages. Second,
the plaintiff could, if he so desired, vlaive his claim for damages in
r~spect of the ten plots, and sue solely for a declaration as to the

sixteen plots.

In his plaint the plaintiff restricted himself to the minor claim

for damages for failure to accept the offer in respect of the ten sub-

plots. The first statement of claim submitted by the plaintiff was

st ruck out, but I cannot find any t race of it \-li th the pro ceedings.

Prior to the order striking out this claim on February 22, 1943, it is
apparent that the plaintiff and his then advocate "Iere at logger-heads

as to the nature of the plaintiff's claim - the advocate contending that

the claim lias the minor one for damages above-mentioned, and the plaintiff
"protesting vehemently" that his claim was the larger cne for the half-

share in the said sixteen sub-plots. The learned judge recorded his

opinion that there was nothing in the vlritten agreements which could

possibly support any such claim, and it is not unlikely that he intimated

his view thereon to the plaintiff and his advocate. Whether for that

reason or for some other reason, in the amended statement of claim whioh

was submitted on April, 1, 1943, the plaintiff, through his then advocate,
again restricted himself to the minor claim for damages. What the defendant's
answer to the plaintiff's case is, remains unknown because in his defenoe

.he was alloNed to content himself by saying that he did not admit any one
of the plaintiff's allegations and that he denied liability.

The hearing of the suit was commenced on June 8, 1943, and continued
on July 5, 1943, when at the conclusion of the cross-examinat ion of 'the
plaintiff, the case was adjourned until July 14, 1943, and on that date,
at the request of both parties, the hearing was adjourned ~ ~ with

a vieN to a settlement. The settlement never matured, thE! suit was struck
out for lack of prosecution a year later. Four months thereafter the
plaintiff applied to restore it, and fifteen days after his application

to restore had een gra~ted, he applied to amend his statement of claim.
The amended statement of claim submitted with his application omitted

all reference to the minor claim for damages for non-acceptance of the
offers he had submitted for the ten plots upon uh'i ch his suit had up to
then been exclusively based. vlliether the plaintiff actually intended

to abandon this minor claim is not clear, because in the application
submitting the amended statement of claim he alleges that the court had
previously omitted to frame any issue on the points therein raised, thus
implying tha.t he was seeking to add new issues. However that may be, the
learned Judge of the High Court clElarly assmned that the purpose of the
amendment was to substitute the issues raised by the major claim for a
declaration as to the sixteen sub-plots therein set out for the issues
settled upon the previous minor claim, and on this assumption he refused
the applieation to amend on the ground that it sought to introduce a

totally different, new and inconsistent case at a Lat e stage of the proceedings.

In support of the application for revision of the learned judge's
order, plaintiff's advocate, Mr. Sorial, at first attempted to set up a
case under 'ilhich the plaintiff desired to be put in the position of relying
'in the first instance' on the major claim included in the new proposed
amended statement of claim, anQ, III the second insta~ce and in the alter-
native only, on the mll10r claim the present subject of the suit. As above
pointed out, the plaintiff cannot dc this, because his major claim so far
as concerns the ten sub-plots necess~rily implies the waiver or dismissal
of his minor claim, and "so far as those ten plots are concerned" he must
eleot 'between f.1aiving his minor claim and relying on his major claim

alone, or relying on his minor claim in the first instance and on the major
claim only if his minor claim is dismissed. Faced .lith this election, Mr.
Sorial, decided, for the purposes of this application, to rely solely on
the major claim. That is to say, that the plaintiff seeks now to amend his

claim by substituting the major for the minor claim, and we are therefore
dealing with the "apJ)lication on the same footing as did the learned High

Court Judge.

The la\'{ governing the amendment of pleading£! in the Sudan Courts is
set out in Order 2, rule 8 of the First Schedule to the Civil Justioe
Ordinanoe 1929 and is as follows:

"The' Court may at any stage of the prooeedings before judil'.1ent allow
either party to alter or amend his pleadings in such manner and on
such terms as may be justt_and all such amendments shall be made

as may be necessary for the purpose of determining the real questions
in controversy between the parties."

This rule is an exact repetition of the corresponding English rule of the
Supreme .Court in Order 28, rule ~ and of the corresponding Order 6, rule
17 of the First Schedule, to the Indian Code of Civil Procedure. The

rule is sometimes said to be for the purpose ot preventing multiplicity
of suits. In one sense t'hat is so, but in another sense, the rule only

sets out an elementary necessity of justice, .since, and this is particularly
so in respect of litigation in the Sudan, justice would seldom either
actually or apparently be dOl{e if a pa.rty Here estopped a~d for ever

limited by any pleading or other \'Iritten statement put in on his behalf
either .by himself or his pleader without possibility of later amendment.

In considering the scope of the rule, it must be borne in mind that it

does not stand alone but forms part of a code of procedure, and therefore
falls to be interpreted in relation to that Code as a "Ihole. The other
provisions of the Code, to which the rule is particularly related are
sections 40 and 51 of. the Civil Justice Ordinance vlhich together enunciate
the principle of ~ judicata. and sect ion 52, which governs the joinder

of causes of action in one suit. When Order 2, rule 8 of the First

Schedule is read in conjunction \'lith the above provisions of law, I think
that three rules emerge l-1hioh govern the discretion and duty vested in

the court by the provisions thereof'.

The first rule is that no amendment should be allowed which will
work an injustice or cause a prejudioe to the opposite party which cannot
be compensated by an appropriate order as to costs. Thus an application
to amend a statement of claim by the inclusion of a olaim which has
become barred by limitation since the institution of the suit must be
refused. Similarly, \1here the plaintiff's suit I'{ould be wholly displaced

ar-e intimately connected, the amendment should ord:iJlarily be allowed,
unless, because of delay or otherHise, I,hat remains to be done will be
substantially the equivalent of a new suit.

Applying the above rules to the facts and circumstances of this -
case, it is clear that the first rule above enunciated does not apply
because the defendant can be fully compensated in costs for any prejudioe
he may suffer.

In the application of the second rule above en~~ciated, it is not

for the court to decide one l'lay or the other whet her-, if the amendment

is refused, the plaintiff will thereafter be barred by the ,principle of

res judicata from putting forward the subject matter of the proposed
amendment as the basis of a future claim; it is sufficient if there is

any substantial possibility that he may be so barred. Is there any such
possibility here? There are certain Indian decisions upon the effect of
the Indian Order 2, rule 2 of the Schedule to the Indian Code of Civil
Procedure (wha oh corresponds exactly to section 51 of the Civil Justice
Ordinance) wh i ch suggests strongly that there is. In Anderson v. Kalgaria,
l~ Cal. 339, (lfS8);:) . A'>l.~reel}~~~ to purchase ten bales' of yarn from B. A.
took delivery thel'coZ. Chief Justice Garth expressed the opinion that a
suit by B. against A. to recover damages for failure to take delivery

of the three bales was not a bar to a subsequent suit by B. to recover

from A. the price of the s.svel1 bales. The learned Judge held that a

claim for the price of,;:good3 sold, W3.S a cause of act ion of a different

nature from a claim for damages for non-acceptance of goods, and the fact
that both claims arose under the same contract did not constitute them

one and the same cause of action. Judb'e l-lilson expressed a different

opinion, stat ing that, the claim having arisen under the same contract,
the cause of act ion was but one, and that the subsequent suit was there-

fore barred. The opinion of Judge Hilson was f'o l Lowed in Duncan v. Jeetmull,
19 Cal. 372, (1892), Hhich was a Lso a case of a breach of one and the same
contract. The learned author of Mulla' s Code of civil Procedure states

that these tvJO cases show that all existing breaches of the same contract
must be joined in the same suit. With great r-esj.ect , I do not feel able

to accept that broad statenent or the reasoning of Judge Wilson on whioh

it appears to depend, either as a correct exposition of the Law or as

raising a substantial possibility that, if this anendment is refused, and

the plaint iff proceeds I-li th this suit as at present const i tuted, he will

thereafter be b8.l'red from bringing a fresh suit in respect of the matters
which form the subject of his proposed amencl.r.1ent.

I do not think. that sections 40 and 51 were intended to, or in fact do
more than enunciate the principle of m judicata as it exists in English
law. A party who relies upon the doctrine of ~ judicatamust show either
an actual merger of the cause of action in a previous judgment, or that

the point has already been decided betl'leen the same part~es, and the
subject of the doctrine is therefore divided into two branches: merger

of cause of action and estoppel by matter of record. No question of

,estoppel by matter of record can arise in this case, because, apart from
the fact that both the minor claim upon i~hich the. action is at present
founded and the major claim sought to be introduced by the amendment
arise out of the same contract, none of the issues of law and fact upon
which the respective claims depend are the same, and thera is no possibi-
lity that the same point could be decided in the two .cl.a irns , tie are

left Hith that part of the doctrine of ~ judicata which d epends upon
the merger of the cause of action in a previous judgment. It is inherent
in this part of the ~~o~trine that the' suits or issues which the defendant
in a subsequent suit seeks tc bar by the plea of ~ judicata. must depend
upon or arise out of the same cause of action as that upon which the
former suit "l"las founded. I think that the provisions of Explanation 1

to section 40 operate only in this sense. If they do not, what is the
principle upon which it is to be decided that some matter might and ought
to have been made a ground of attack in such former suit? Section 52,

by necessary implication, allows any number of causes of action. to be
included in the same suit, subject only to the discretion of the court

to order a separate trial. Are all existing causes of action to be
considered as matters which might and ought to have been made a ground

of attack, merely because a court might have considered th~t th~ could
have been conveniently tried together? In I1\Y view, clearly not.j but,

if not, there is no yardstick of what might and ought to have been made

a ground of attack, other than dependence upon the same cause of action.
Matters which might and ought to have been made a ground of defence are

necessarily limited to the cause or causes of action actually relied upon

in the former suit, and I think that the wording of Explanat ion 1 necessary
implies the same test of what might and ought to have been made a ground

of attack as of what might and ought to have been made a ground of defence.,
There being no other test'" than mere discretion upon which to' judge Hhat
might and ought to have" been made a ground of attack, I think that one must

neoessarily adopt that test which is inherent in the ~glish law upon

which section 40 is based, which is the test suggested alike by common
sense and considerations of justice, and is the test whioh must necessarily'
be adopted in regard to what might and ought to have been a ground ot
defenoe. -It is-significant, to say the least, that section 51 which is

in III8.llJ' ,espects redundant to section 40 is expressly, in sub-sections_

z ;(1) and. (3), and impliedly,_ in sub-section (2), limited to the cause of
action _ in question. Nor, is there any illconsistency between the above
prillciple and the real ~ decidendi of the two Ind.ian cases above
cited, vlhich depend upon Judge Wilson's statement that, since both claims
arose under the same oontract, the cause of action was but one.

That being so, the sole question here is vlhether the cause of action
upon vlhich the existing minor claim. is founded is the same as that upon
which the major claim, included in the proposed amendment, is founded.
The definition of a cause of action which is generally accepted is that
given by Lord Esher, M. ~., in Read v. Brown, (1889) 2~ Q.B.D. 128, 131,
(1888), namely, "every fact vlhich it l'1ould be necessary for the plaintiff
to_prove, if traversed, in order to support his right to the judgaent of
the court." So defined, it seems to me that the plaiIitiff's tliO claims

 bove mentioned must necessarily be founded upon tVlO different causes of

action, and that the mere circumstance that one fact lihich it would be
necessary to prove, if traversed, namely, the fact of the contract, is
common to both claims, cannot alter the position. It is sufficient if
there be one such different and substantial fact to constitute a different
cause of action. Thus in the case of Anderson v. Kalgaria, above cited,
the claim for the price of the seven bales of lihich A. took delivery was

founded. UPOll a different cause of action to the claim to recover damages

in respect of the three bales of which A. refused to take delivery, because,
first, in the first claim B. had to allege and, if traversed, prove the

fact that he had delivered the seven bales to A., tihereas no such fact

in relation to the three bales had to be alleged or proved in the seoond
claim, and second, because in the'second claim B. had to allege and, if
traversed, prove the fact that A. had neglected or refused to take delivery
of the three bales, whereas in the first claim no such fact in relation

to the seven bales had to be alleged or proved. Although, at first sight,
the illustration to section 51 may seem to be inconsistent with the above
reasoning, I do not think that it is so, because whez-e rent has been unpaid·
for three years, the cause of action for the rent of each year is the same.

of the sonle percentage. It is therefore perfectly clear that if the
rules allowed an appeal against an order allm~ing or refusing an amend-
ment to a pleading, the fee payab'l,e would be throe quai"ters of the salLIe
percentage. Item 15 of the said Schedule Ge"t:::: out the fees pa.yable upon
"an application :or revision" and although this phrase is not expressly
explained as including an application for revision of an order, I th~
that it must necessarily be understood as doing so. An application for
revision \-lithin the ordinary meaning of that phrase as is an appliolLtion
for the revision of a decree. I think, therefore, that the fees payable
upon revision have been correctly assessed.

 

J .G. }.'!a.vrogordato, Esq.: I concur.

Application dismissed.