IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 318 OF 1996
(Lautoka Civil Action No. 235 of 1997
on transfer and back to Suva on 27.10.99)

Between:

SURESH PRASAD
s/o Surend Prasad
Plaintiff

And

RAJENDRA PRASAD
s/o Mohan Prasad

S.K. DAVEY LIMITED
Defendants

Mr. R. I. Kapadia for Plaintiff/Respondent
Mr. M. B. Patel for 1st Defendant
Mr. J. R. Reddy for 2nd Defendant/Applicant

DECISION

By Summons dated 25 January 2001 the second defendant (hereafter referred to as the ‘applicant’) has applied to Court that it be at liberty to amend its Amended Statement of Defence by adding the following sub-sections (e) and (f) to section 4 of the Defence dated 26 January 1998 pursuant to Order 20 r.5 of the High Court Rules:

(e)	that the First-Named Defendant was expressly ordered by the Second-Named Defendant in common with all other drivers employed by it, not to carry any gratuitous passengers in the Company’s vehicles, and the First-Named Defendant was acting outside the scope of his employment with the Second-Named Defendant when he chose to give the Plaintiff a lift in the Defendant’s motor vehicle.

(f)	that the Plaintiff was at all times a trespasser in the said vehicle and chose to ride in it at his own risk.

The application is opposed by the Respondent/Plaintiff but not by the first defendant. 

Mr. Jai Ram Reddy, Counsel for the Applicant, submitted that in the Statement of Defence filed, the defence was not raised in an exact way and it is now applied to put it in a proper legal form. Counsel said that in paragraph 4 of the Statement of claim which stated that the ‘plaintiff was at all material times being carried in the said vehicle as a delivery man acting in the course of his employment with the second defendant’ was denied by the second defendant in its Statement of Defence in paragraph 4(a), (c) and (d) thereof.

The learned Counsel further stated that the above defence was also raised in paragraph 13 of the affidavit of Surendra Kumar the Managing Director of the second defendant sworn 23 January 1998 when the application to set aside default judgment herein was made before Lyons J in the High Court at Lautoka. He said that it was on this basis that Lyons J, after referring to the said paragraph 13, said at page 5 of his Decision that ‘paragraph 13 is relevant’ and he allowed the judgment to be set aside.

On the authority of the Court of Appeal case of Reddy Construction Company Limited v Pacific Gas Company Limited (26 FLR 121) counsel submitted that the amendment be allowed.

While opposing the application Mr. R.I. Kapadia, Counsel for the Plaintiff/Respondent, said that it is not quite correct to say that he has not been taken by surprise. He said that the amendment sought is an ‘entirely different’ defence as the second defendant did not say in its defence that the first defendant was prohibited from carrying passengers.

Mr. Kapadia admitted that Court has the power to grant amendment and if application is allowed then he asks that he be given leave to file Reply to Amended Defence and costs in the sum of $500 be paid within 7 days. Mr. Reddy said that costs should be costs in the cause.

Mr. M. B. Patel, counsel for the first defendant, while not objecting to the application says that Court is empowered to grant amendment even at appeal stage (Abhay Kumar Shankar, Arun Lata and Housing Authority, Lautoka Rural Local Authority, FCA Civ. App. No. 55/91). Mr. Patel asks that he be at liberty to file an Amended Defence.

Consideration of application

It is under Or.20 r.5 of the High Court Rules that this application is made. The Order provides:

5. - (1) Subject to Order 15, rules 6, 8 and 9 and the following provisions of this rule, the Court may at any stage of the proceedings allow the plaintiff to amend his writ, or any party to amend his pleading, on such terms as to costs or otherwise as may be just and in such manner (if any) as it may direct.

I have given due consideration to arguments put forward by counsel and find that this is an appropriate case for the granting of leave to amend.

In the light of the history of proceedings in this case so far, to which Court’s attention has been drawn, it is not a case of the Plaintiff being taken by surprise or that the amendment sought is a completely new defence as alleged.

The principles involved in the determination of an application of this nature are quite clear on the authorities.

In Fiji Electricity Authority v Balram & Others ([1970] 18 FLR p20) 
Goudie J (High Court) in his judgment at p.21 said:

An amendment to pleadings may be permitted by the court at any stage of the proceedings for the purpose of determining the real question in controversy and, if it can be made without injustice to the other side should be allowed however late, and however negligent or careless may have been the first omission.

Also, bearing in mind the following passage in the judgment in Reddy Construction Company Limited (supra at p125-126), I consider that no prejudice will be caused to the Plaintiff if Court allows the amendment:

The primary rule is that leave may be granted at any time to amend on terms if it can be done without injustice to the other side. The general practice to be gleaned from reported cases is to allow an amendment so that the real issue may be tried, no matter that the initial steps may have failed to delineate matters. Litigation should not only be conclusive once commenced, but it should deal with the whole contest between the parties, even if it takes some time and some amendment for the crux of the matter to be distilled. The proviso, however, that amendments will not be allowed which will work an injustice is also always looked at with care. So in many reported cases we see refusal to amend at a late stage particularly where a defence has been developed and it would be unfair to allow a ground to be changed.

For the above reasons, I allow the amendment to the Defence as prayed. It is ordered that an Amended Defence be filed and served within 7 days and that the Plaintiff be at liberty to file and serve a Reply thereto within 14 days thereafter. Similarly, the first defendant is at liberty to file and serve an Amended Defence within 14 days after the service of the Amended Defence. Thereafter Or.34 rules 2 and 4 of the High Court Rules are ordered to be complied with. As regards costs, because the application was made at the eleventh hour when the case was to be heard and the plaintiff incurred expense in summoning witnesses and matters incidental to hearing, I award costs to Plaintiff against the second defendant in the sum of $250.00 to be paid within 7 days.

D. Pathik
Puisne Judge

At Suva
15 February 2001