(1989)1989 March, 27 (SAWIDES,KOURRIS.BOYADJIS,J J) SOTERISIOANNOU Appeliant-Defendant, v. MARIOSATHIENITISANDOTHERS, Respondents-Plaintiffs. (CivilAppeal No. 7143), MARIOSATHIENmS ANDOTnERS, Appellants-Plaintiffs, SOTERISIOANNOU, Respon dent-Defendant, (CivilAppeal No. 7178). Civil Procedure —Pleadings—Amendment of defence — Application foramendment filed after conclusion of evidence —Sole objectof theamendment sought wastobringthedefence inlinewith evidence given without objection —The application should have been granted. Civil Procedure —Pleadings—Trial Court acting on evidence not covered by the defence —Such evidence had been adduced without objection —Still the trial Court, which earlierrefused an application toamend the defence inmanner bringingitinline with such evidence, could not actonsuch evidence. 5 10 In the light of the principles, which are sufficiently stated in the aboveheadnote,theCourtallowedtheappealsandorderedaretrial. Appeals allowed. No order astocostsofthe appeals. 178 IC L.R loannou v. Athienitis Casesreferredto SkepiLtd ν KaitisandAnother
(1983)1CLR231 Pcunkkosν Fevzt (1%3)2CLR24, Stdvnnouν Asprogheni*
(1985)1 CL R341 5 Appeals. Appeal bydefendant inAction No 6447/81 against therulingof the Distnct Court Nicosia (Kramvis DJ ) dated 7th Apnl, 1986 whereby hisapplication for theamendment of thestatementof defence wabdismissed andby plaintiff in theabove action who 10 challenge the final judgment whereby their claims ansing outofa road collision were dismissed A Dihgoropoulos, forappellant-defendant inCA 7143 and respondents-defendants inCA 7178 15 Ζ Katsouns, for respondents plaintiffs in CA 7143 and appellants-plaintiffs inCA 7178 SAW1DES J The judgment of the Court will be delivered by mybrotherJudge I Boyadjis BOYADJIS J Inthe course of the heanng of the first Appeal (Civil Appeal 7143), wefound itnecessary thatitshould be tried 20 together with thesecond Appeal (Civil Appeal 7178) inasmuchas they bothchallenge proceedings inthesame consolidated actions and the outcome of theformer would affect the result ofthelatter appeal The appellant in Civil Appeal 7143 was the defendant inall 25 consolidated actions below Hechallenges thereby therulingof the tnal Court given on7 Apnl 1986,whereby his interlocutory application for leave of the Court to amend his Defence was dismissed Hismain complaintisthat relevant evidence had been given at the tnal without objection and the only object ofthe 30 amendment sought were tobnng theDefence in line with such evidence The appellants in Civil Appeal 7178 were theplaintiffs in the consolidated actions below They challenge thereby the final judgment of the tnal Court,whereby their claims ansing outofa 35 road collision were dismissed Oneofthegrounds ofappealisthat the trial Court should not have acted, as it had done, upon evidence which,thoughled inwithoutobjection, wasnot covered by the pleadings 179 Boyadjis J. loannou v. AthietriUs
(1989)In the course of the hearing, learned counsel for the respondents in Civil Appeael 7143 acknowledged that there was meritintheappellant'scomplaint inthisappealregardingthetrial Court's refusal to allow the amendment sought by the appellant. This was a wise and a fair course to follow inasmuch as the 5 authorities clearly establish that, when the object of the amendment sought isto bring the pleadings in linewith relevant evidencegiven atthetrialwithoutobjection, leaveisgranted even at the end of the day: Skepi Ltd. v. Kaitisand Another
(1983)1 C.L.R. 231, or even at the stage of appeal if no injustice willbe 10 done thereby: Yiannakis Pourikkos v. Mehmet Fevzi
(1963)2 C.L.R. 24. Inview of this development and of our expressed readiness to act upon the submission of counsel for respondents in Civil Appeal 7143 to the issue of an order granting leave to the 15 appellant to amend his Defence in the terms set out in his application, the hearing of Civil Appeal 7178 proceeded on the assumption that the ruling of the trial Court refusing to allow the amendment of the Defence would not be aside. Itisanadmitted fact, evidentfrom thetextofthejudgmentofthe 20 trialCourt, thatthe Court wasinfluenced by and had acted upon the very evidence which was not covered by the Defence and in respect of which ithad earlier refused toallow the amendment of the Defence. Learned counsel for the appellants in Civil Appeal 7178 25 submitted that the trial Court should have never acted upon such evidence and itsjudgmentshould besetasideonthissole ground. He also invited the Court to order a retrial of the consolidated actions on the issue of liability only as the quantum of damages had already been agreed. 30 Learned counsel for therespondent inCivilAppeal7178stated very fairly, ifwe maysayso,thatthe making ofan orderfor retrial onthetermssuggested byhislearned colleague,istheonlycourse open inthe circumstances ofthiscase. We are in agreement with both learned counsel. In Loizos 35 Stavrinou v.StavrosAsproghenis
(1985)1 C.L.R. 341, itwasheld that a verdict based on evidence which is not in line with the pleadings as they stood at the end of the day, must be set aside. This applies a fortiori to the present case where the Court had 180 1C.L.R. Ioannou v. Athienitis BoyadjisJ. wrongly refused atimelyapplication submitted forthepurposeof bringing the pleadings inline withsuch evidence. Forthe reasonshereinabove stated, both appealssucceed, and we make ordersas follows: 5 (a) In CivilAppeal 7143:The Ruling of the trial Court dated 7 April 1986 issetaside.Leaveisgranted totheappellant toamend the Defence as per his application dated 18 February
- The amended Defence tobe filed within one month from today. Costs oftheapplication foramendment tobecostsagainstthe appellant 10 - defendant and in favour of the plaintiff in Action No. 6447/
- Such costs to be assessed by the Registrar unless agreed upon between counsel and be payable at the end of the new hearing. There willbe no order asto costsinthis appeal. (b)InCivilAppeal 7178:Thejudgment of the trialCourt dated 15 24 April 1986issetaside. Inexercise of our powers under Order 35, r.9oftheCivilProcedure Rules,andSection25
(3)oftheCourts of Justice Law 1960, we order a trial de novo on the issue of liability onlybefore anotherjudge of the DistrictCourt of Nicosia. " Costs ofthe proceedings before the trial Court, incurred so far, to 20 follow theresult ofthe newtrial.There willbe no order astocosts inthisappeal. Both appeals allowed. 181