clr/1969/1969_1_613.pdf

1969 Dec. 11 [JOSEPHIDES, STAVRINIDES AND LOIZOU, JJ.] KATERINA N.A. GEORGHIOU AND ANOTHER, Appellants-Plaintiffs, v. KATERINA N.A. GEORQHIOU AND ANOTHER v. CHRYSTALLA MICHAEL PISTOLIA, Respondent-Defendant. (CivilAppealNo.4827). Practice—Pleadings—Amendment—Statement of claim—Application for leavetoamend afterevidence given by theplaintiffs—Matter withinthe discretion of the-trialCourt—But in the instant case such discretion was exercised on wrong principle—Proposed amendments not seekingto introduce a different claimor cause ofaction—On theotherhandthere wasno allegation thatplaintiffs werenot actingin goodfaith—Leave grantedon appeal. Pleadings—Amendment—See hereabove. Amendment—Statement of claim—Discretion of the trialCourt— Exercisedon wrong principle—See hereabove. CivilProcedure—Pleadings—Amendment—See hereabove. The facts sufficiently appear in the judgment of the Court allowing partly the appeal by the plaintiffs againt a ruling of the trial Court refusing leaveto amend their statement of claim. Appeal. Appeal by plaintiffs against the order of the District Court of Larnaca (A. Demetriou D.J.) dated the 28th June, 1969, (Action No. 175/68) dismissing their application for the amendment of their statement of claim. L. Clerides, for the appellants. C Varda (Mrs.) for the respondent. The judgment of the Court was delivered by: JOSEPHIDES, J.: This is an appeal by the plaintiffs against the order of the District Court of Larnaca refusing amendment 613 CHRYSTALLA MICHAEL PBTOLIA 1969 Dec. Π KATERINA N.A. GEORGHIOU AND ANOTHER v. CHRYSTALLA MICHAEL PISTOUA of their statement of claim. Having heard counsel of both sides and their submissions to Court, we need not give a long judgment in this case. Briefly, the claim was for a right of passage and it was so pleaded in the statement of claim originally filed. After the two plaintiffs gave their evidence, counsel applied to have the statement of claim amended in such a way as to extend the right of passage to include not only persons on foot but also loaded animals. Counsel also sought to introduce a claim of easement to light and air. He further asked for the deletion of paragraph 7 of his statement of claim. That application for amendment was refused by the trial Judge, mainly on the ground that it was made too late in the day and that the plaintiffs had ample time to have included all these matters in their original statement of claim. Learned counsel for the appellants (plaintiffs) today very rightly abandoned that part of his application, (that is, the proposed paragraph 8(d) in which he sought to introduce the claim of right to light and air. Undoubtedly that was an entirely different claim and the learned Judge was right in refusing it. Furthermore, learned counsel for the appellants (plaintiffs) has abandoned that part of his application concerning the deletion of paragraph 7 of his statement of claim. On the other hand counsel for the respondent (defendant) is not objecting today to the amendment of paragraphs 3 and 4 of the statement of claim and the addition of the new para­ graphs 8(b) and (c) of the statement of claim, which refer to the right of passage. We think that counsel for respondent very properly has taken that stand, because we are of the view that although it is a matter for the discretion of the learned Judge, nevertheless, he applied a wrong principle in exercising his discretion. By their proposed amendments the plaintiffs (appellants) were not asking to introduce a different claim and there was no allegation that the plaintiffs were acting mala fide. The plaintiffs had blundered and the injury to the defendant could be compensated for by costs. We are, there­ fore, of the view that the learned Judge ought, in the exercise of his discretion, to have granted this amendmentwhich referred to the right of passage claimed by the plaintiffs. 614 In the result the appeal is allowed in part and the following order is made: