Supreme Court of Mauritius, 30 avril 2026, 2026 INT 105 – Rahima Rosun v. Bibi Aamirah Farhaanah Samcooaree

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Rahima Rosun v. Bibi Aamirah Farhaanah Samcooaree

2026 INT 105

THE INTERMEDIATE COURT OF MAURITIUS (Civil Division)

In the matter of: CN 530/2021

Rahima ROSUN Plaintiff v.

Bibi Aamirah Farhaanah SAMCOOAREE Defendant

RULING

1. In her amended proecipe dated 19 th June 2023, the Plaintiff, who is the landlady of a commercial building at Royal Road, Grand Bay, avers that she entered into an agreement dated 1 st May 2019 with the Defendant whereby she rented two units of the said building for a period of two years. The Plaintiff avers that the said agreement was, thereafter, renewed by way of “tacite reconduction”. According to the Plaintiff, the Defendant neglected to pay several months of rent. She is, thus, claiming the outstanding rent from the Defendant. She is also praying that the Defendant be ordered to quit, leave and vacate the rented premises. With costs.

2. The Defendant has, in a plea filed on 4 th September 2023, denied being indebted to the Plaintiff in any sum whatsoever. She avers that she has already vacated the leased premises since July 2021. She also contends that she has undertaken major works on the premises with the consent of the Plaintiff and that she has invested nearly Rs.1 million for that purpose. She further describes the difficulties encountered by her business as a result of the covid-19 pandemic and avers that the Plaintiff was made aware that she had no intention to renew the lease.

3. On 7 th April 2025, Learned Counsel for the Defendant, who stepped into the case on the very same day following the withdrawal of previous counsel, moved to amend the plea. The amendments are contained in a document dated 5 th May 2025 by virtue of which the Defendant is seeking to amend three paragraphs of the plea and to include a counterclaim. The Plaintiff objected to the proposed amendments by way of a notice of objection dated 5 th June 2025. In a gist, her grounds of objection are that:

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(i) the proposed amendments are substantial, raise new issues which are inconsistent to the pleadings already filed and are a complete departure from the initial plea; (ii) the proposed amendments pertain to matters which were already within the knowledge of the Defendant at the time of the filing of the first plea and are being brought at a very late stage; (iii) the proposed amendments would not determine the real issue in controversy between the parties but would entail confusion and ambiguity and would result in prejudice and injustice to the Plaintiff which cannot be compensated by an order for costs, the more so as the Plaintiff is a senior citizen who is aged almost 84 years; and (iv) communication of documents was refused by the Defendant when the plea dated 4 th September 2023 was filed.

4. The case was called, thereafter, on a few occasions as the parties were trying to find an amicable settlement in the matter. As no agreement was reached between them, arguments were heard on the motion for amendment made by the Defendant.

5. I have thoroughly considered the arguments offered on both sides as well as the authorities filed before me.

6. It is well-settled that this Court has wide powers in deciding amendment of pleadings. Rule 48 of the District, Industrial and Intermediate Court Rules, which is similar to Rule 17 of the Supreme Court Rules 2000, deals with amendment of pleadings before subordinate courts. It confers upon this Court the discretion to allow necessary amendment of pleadings for the purpose of determining the real question in controversy between the parties. However, this discretion is to be exercised judiciously. The principles governing the exercise of this discretion are, in fact, well- established. In the case of Aimée v. Radio Plus Ltd 2020 SCJ 16, it was held that the test consistently applied by the Supreme Court when making a determination on a motion for amendment is:

“whether the amendment is required for the purpose of determining the real question in controversy between the parties and whether it is likely to result in any prejudice or injustice which cannot be compensated by an order for costs (see Mrs L. Tive Hive & Ors v Kam Tim [1953 MR 80], Soobhany & Ors v Soobhany & Ors (supra), Hems Apparels v State Bank of Mauritius Ltd & Ors (supra), Best Luck (Mauritius) Ltd v Murdhen & Anor (supra)and Bamford Excavators v Khadun Construction Ltd [2019 SCJ 138]), the rationale being that the Court exists to decide the rights of parties and not for the sake of discipline (see Marday C. & Ors v Marday B. [2008 SCJ 30])”.

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7. The principles governing amendment of pleadings have also been aptly summarised in the case of Hems Apparels v. State Bank of Mauritius Ltd & ors (2009) SCJ 419 as follows:

“(a) The Court should allow all such amendments as are necessary to enable the determination of the real question in controversy between the parties or to correct any defect or error in any proceedings (per Jenkins L. J. in G. L. Baker v. Medway Building & Supplies Ltd [1958 3 ALL E. R. 540, p. 546] referred to in Maxo Products v Swan Insurance [1996 MR 141]).

(b) Even if such amendments have been made necessary because of the honest fault or mistake (therefore excluding bad faith) of the party making the motion for amendment, they should be allowed. The focus is on the fact that the Court is not here to punish parties for their mistakes in the conduct of their cases, but to decide cases in accordance with their rights.

(c) However blameworthy (short of fraudulent or in bad faith) may have been a party’s failure to plead the subject matter of a proposed amendment earlier, and however late in the day the motion for amendment is made, it should, in general, be allowed, provided the amendment will not cause injustice to the other party. There is no injustice to the other party if he can be compensated by the appropriate order for wasted costs (per Bowen L. J. in Copper v. Smith (1883) 26 Ch. D. 700, pp. 710 – 711 referred to in the case of Maxo Products (supra)).

(d) There is a distinction to be made between an amendment which would clarify the issues and one which is in the nature of a totally different defence from that pleaded to be raised by amendment at the end of the trial, even on terms relating to an adjournment and as to the defendant paying the costs thrown away. (Ketteman v. Hansel Properties Ltd [1987 AC 189] referred to in the case of Soobhany v. Soobhany (supra)).

(e) To allow an amendment before a trial begins is quite different from allowing it “at the end of the trial to give an apparently unsuccessful defendant an opportunity to renew the fight on an entirely different defence”. (Soobhany v. Soobhany (supra) referring to the case of Ketteman (supra).

(f) “An amendment for the purpose of adding a plea of fraud is generally allowed at an early stage if the circumstances warrant it but it will only be allowed at a late stage in exceptional circumstances.” (Halsbury’s Laws of England 3rd edition volume 30 paragraph 72 – referred to in Maxo Products (supra)).”

8. Bearing the above-cited principles in mind, I shall now consider whether or not to exercise my discretion to allow the amendments being sought by the Defendant.

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9. The Defendant is seeking to amend paragraph 5 of her plea which is a reply to paragraph 5 of the amended proecipe wherein it is mentioned that there was a decrease in rent to Rs.20,000 as from October 2020. The Defendant wants to make an addition to the averments contained in her original defence by stressing on the fact that the Plaintiff initially refused to grant her a delay to repay her arrears of rent but eventually unilaterally decided to decrease the rent to Rs.20,000. It is observed that by moving to make such an amendment, the Defendant is merely seeking to expatiate on the version already given by her as regards the decrease in rent. The proposed amendment is connected to the dispute between the parties and is relevant to the issues in controversy to be adjudicated upon by this Court.

10. Turning now to paragraphs 7 and 8 of the proposed amended plea, it is observed that the amendments pertain to a disagreement which cropped up between the parties as to water connection. Although this was not originally pleaded by the Defendant and new issues are being raised as defence, I have not been satisfied that the proposed amendments are totally irrelevant and unconnected to the Defendant’s case and that they would not assist in the determination of the issues in controversy as highlighted by Learned Counsel for the Plaintiff. In fact, these averments are in relation to the rented premises and are linked to the dispute between the parties.

11. It follows from the above that the proposed amendments to the plea are relevant in assisting this Court to resolve the entirety of the dispute which has arisen between the parties. The amendments ought, thus, be allowed so long as no prejudice is being caused to the opposing party [vide A Dahoo v. AD Doolub & anor 2025 SCJ 144].

12. When offering arguments on the issue of prejudice, Learned Counsel for the Plaintiff relied essentially on delay. She highlighted that the case was lodged in 2021 and that amendments are being sought by the Defendant at a late stage. She laid emphasis on the fact that the case had been postponed on numerous occasions after it was in shape to be heard on the merits. I pose here to remark that the Plaintiff herself amended her proecipe on 19 th June 2023 and that all postponements cannot be attributed solely to the Defendant. On a few occasions, the case was postponed as the parties were trying to find an amicable settlement.

13. At any rate, it is well-settled that delay in itself is not sufficient to allow an objection to an amendment of pleadings where such amendment is necessary for the Court to determine the issues between the parties and decide the matters in controversy. On that score, I find it apposite to refer to the following extract from the case of A Dahoo (supra):

“It is here relevant to note that in United Docks Ltd v Mauritius Cane Industry Authority [2017 SCJ 208], no explanation could be put before the Court as regards

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the delay in the amendment being proposed. Yet, the Court ruled that lack of explanation was not sufficient to deny the amendment if it was necessary to determine the issue before the Court since the primary task of the Court is to determine the dispute and amendments which seek to achieve this should be normally allowed.

I am therefore guided by the above principles in finding that despite the very weak explanation put forward, the proposed amendments are still relevant and necessary to determine the issue before me and finally dispose the dispute in the course of one and same proceedings.”

14. In the case at hand, arguably, the averments contained in the proposed amended plea could have been raised earlier as they relate to matters which were already within the knowledge of the Defendant at the time the original plea was filed. However, this in itself does not suffice to establish that the Defendant is mala fide in bringing these amendments as contemplated by Learned Counsel for the Plaintiff. There is also nothing on record to suggest any prejudice caused to the Plaintiff due to the passing of time.

15. I further note that Learned Counsel for the Plaintiff brought forward the old age of the Plaintiff when canvassing the issue of prejudice. However, no evidence was forthcoming as to any prejudice on account of the Plaintiff’s old age. In fact, prejudice does not transpire from the record.

16. In support of her arguments, Learned Counsel for the Plaintiff relied lengthily on the case of Dr. S. Chummun v. S. Chummun & ors 2025 SCJ 442. The present case is, however, distinguishable from the case of Dr. S. Chummun (supra) where trial had already started and amendments were being brought after 14 years. In the present matter, the trial has not yet started and the Plaintiff would be able to give her version on the defence raised. Additionally, I bear in mind that Learned Counsel for the Defendant who sought to bring these amendments recently stepped into the matter [vide Philippe Alain Forget v. The Independent Commission Against Corruption 2020 SCJ 89]. It is not the role of this Court to discipline parties and punish their mistakes in the conduct of their case so long as no prejudice is being caused to the opposing party and the proposed amendments enable the Court to finally dispose the whole dispute which has arisen between the parties.

17. In so far as the counterclaim is concerned, it is noted that Rule 27A of the District, Industrial and Intermediate Court Rules allows the inclusion of a counterclaim in a plea at the Intermediate Court level. The counterclaim which the Defendant is seeking to include is merely an extension to the plea. The averments contained therein are linked to the dispute of payment of rent by the parties.

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18. Furthermore, no prejudice resulting from the inclusion of the counterclaim has been established by the Plaintiff. It is also noted that the Defendant’s claim is still within delay and nothing would have precluded her from entering a separate action against the Plaintiff. It would be a fallacy to believe that proceeding by way of counterclaim would result in more delay to dispose of the matter than entering a new action. It would, in fact, only be fair to allow the Defendant to raise the counterclaim in the present case itself so that all issues in controversy can be thrashed out in a single case and to avoid contradictory judgments. On that score, I find it enlightening to refer to the following extract from case of H. Gopall v. L. Gopall & ors 2024 SCJ 163:

“As for the tardy addition of a counterclaim, not only does Rule 11 of the Supreme Court Rules 2000 allow that a defendant includes a counterclaim in his plea, but the plaintiff will be given an opportunity to ask for particulars and to plead to the counterclaim, so that all issues in controversy can be decided in a single file, thus circumventing the possibility of a separate action by the defendants and consequential further delay in disposing of the present dispute.”

19. For the reasons set out above, I am not convinced that any prejudice, injustice or unfairness will be caused to the Plaintiff if the amendments are allowed. I, thus, find that the Defendant cannot be precluded from making the amendments sought. I, accordingly, overrule the objections raised by the Plaintiff and grant the motion for amendment of plea.

30 th April 2026

C. Servansing-Bhuruth Magistrate Intermediate Court