Supreme Court of Mauritius, 29 janvier 2020, 2020 PL1 4 – Ossen Sobratty v. Mamad Raffick Sobratty

Ossen Sobratty v. Mamad Raffick Sobratty

2020 PL1 4

IN THE DISTRICT COURT OF PORT LOUIS (DIV I) Cause Number: – 688/19 In the matter of: – Ossen Sobratty Plaintiff v. Mamad Raffick Sobratty Defendant RULING This is an action by the plaintiff for a judgment condemning and ordering the defendants (a) to remove an encroachment or in the alternative allowing the plaintiff to remove the encroachment at the cost of the defendants; (b) to allow the plaintiff the peaceful and quiet enjoyment of his property; (c) to pay to the plaintiff damages in the sum of Rs 200, 000 and (d) such other order as may be required. Both the plaintiff and the defendants were represented by counsel.

After exchange of pleadings, the plaintiff moved to amend the praecipe to add three defendants, namely, Amade Noorani Sobratty as defendant no 2, Cader Jailany Sobratty as defendant no 3 and Salim Sobratty as defendant no 3. The learned counsel for the defendant objects to the proposed amendments because the proposed amendments seek to forestall the first limb of his plea in limine litis, namely that the plaintiff cannot proceed with the present action as all the interested parties have not been put into cause. He produced the cases of Harish Kumar Naga v. The Commissioner of Polive & Anor 2017 SCJ 286 and Mrs Bibi Rachida Bengraz v. The State of Mauritius & Ors 2019 SCJ 15 to support his argument.

Learned counsel for the plaintiff submitted that the court in exercising its discretion in allowing amendments should take into consideration that the proposed amendment would resolve the real controversy between parties and no prejudice would be caused to the defendant inasmuch as the trial had not yet started and produced several authorities to support his submission.

Rule 48 of the District, Industrial and Intermediate Courts Rules provides that: – “The District Magistrate may at all times, amend all defects and errors, both of substance and of form, in any proceedings in civil matters, whether there is anything in writing to amend by or not, and whether the defendant or error be that of the party applying to amend or not; all such amendments as may be necessary for the purpose of determining, in the existing suit, the real question in controversy between the parties shall be so made”.

I also read from Tive Hive & Ors v. Kam Tim 1953 MR 80 where it was stated that, “The rule is that “the Court will not refuse to allow an amendment simply because it introduces a new case, but it will so do where the amendment would change the action into one of a substantially different character which would more conveniently be the subject of a new action”” Now, I have considered the proposed amendments which are essentially to add three defendants as parties to the case.

I note that the proposed amendments do not propose to change the following facts that the plaintiff’s land has allegedly been encroached upon by the defendant and the proposed defendants.

Taking the above into consideration, I do not agree with the submission of learned counsel for the defendant that the proposed amendments materially change the cause of action of the plaintiffs into “one of a substantially different character which would more conveniently be the subject of a new action” [vide Tin Hive & Ors (supra)]. I have also borne in mind the fact that the proposed amendments are being made before the start of the trial and find that no prejudice will be caused to the defendant by granting the motion.

I have also taken into account the submission and authorities of the defendant to the effect that the granting of the amendment would “forestall the plea in limine” and am of the view that the contents of the plea in limine in the present case can be distinguished from the authorities filed on behalf of the defendant, more particularly the case of Jacques Monroe v. The State Bank of Mauritius 2008 SCJ 73, where the issues raised were one of time bar and amendment so as to amount to a new cause of action. I find that the amendments are only for the purpose of determining in the existing suit the real question in controversy between the parties, i.e. the encroachment alleged by the plaintiff.

For the above reasons, I set aside the objection raised by the defendant and grant the motion for the amendment to the praecipe.

S Chui [Ruling delivered by S Chui (Mrs) Senior District Magistrate] [Ruling delivered on 29 th January 2020 ]