Wakilii

Karsan v Raghavjee (Civil Appeal No. 17 of 1942)

East African Court of Appeal · [1943] EACA 3 · 1943 Appeal Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from order of H.M. Supreme Court of Kenya allowing amendment of plaint
Decision
Appeal allowed on costs only; amendment to plaint upheld but costs order varied in favour of defendant

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.

Holding

The Court of Appeal held that the amendment to the plaint did not substitute a new cause of action but merely added an alternative claim. The Judge's discretion to allow the amendment was properly exercised under Order 6 Rule 18 of the Civil Procedure Code, which gives wide powers to permit amendments where the real substantial question can be raised between the parties and multiplicity of proceedings avoided. No injustice resulted from allowing the amendment. However, the Court varied the costs order to require the plaintiff to pay forthwith the defendant's costs thrown away by the amendment, with a stay until payment.

Outcome

Appeal allowed on costs only; amendment to plaint upheld but costs order varied in favour of defendant

Facts

The plaintiff sued the defendant for money lent. The original plaint alleged that the defendant arranged a loan and represented he would obtain a Power of Attorney from Mawji Mandan to execute a charge. The defendant signed the money-lending contract for Sh. 8,000 per pro Mawji Mandan under a general Power of Attorney. The plaintiff applied to amend the plaint to add an alternative claim alleging that the defendant had authority from Mawji Mandan to execute the contract and undertake repayment, but that Mawji Mandan denied such authority. The defendant appealed against the order allowing the amendment, arguing it introduced a new cause of action, was made in bad faith after unexplained delay, and deprived him of a limitation defence. The trial judge allowed the amendment with costs thrown away to be the defendant's in any event.

Issues

  1. Whether the amendment to the plaint permitted the substitution of a new cause of action.
  2. Whether the learned Judge erred in exercising his discretion to allow the amendment.
  3. Whether the amendment deprived the defendant of a defence of limitation.
  4. Whether the terms imposed as to costs were just or should be varied.

Orders

  • Appeal allowed only on the question of costs.
  • Order of Judge varied by substituting for the order that costs thrown away be the defendant's in any event an order that the plaintiff do pay forthwith the defendant's costs thrown away by the amendment, with a stay until payment.
  • The plaintiff to pay to the defendant one-half of the costs of the appeal and of his application for leave to appeal.

Rules and key headnotes

Civil Procedure — Amendment of Pleadings — Scope of Court's Power — Order 6 Rule 18
Order 6 Rule 18 of the Civil Procedure Code, which corresponds to English Order 28 Rule 1, gives a Judge very wide powers to allow amendments. An amendment ought to be allowed if thereby the real substantial question can be raised between the parties and multiplicity of legal proceedings avoided.
Civil Procedure — Amendment of Pleadings — New Cause of Action — Addition of Alternative Claim
An amendment that retains the original cause of action and merely adds an alternative claim designed to cover the plaintiff in certain eventualities does not constitute the substitution of an entirely new cause of action.
Civil Procedure — Amendment of Pleadings — Exercise of Judicial Discretion — Appellate Interference
Whether or not an amendment should be allowed is a matter for the discretion of the Judge. The Court of Appeal will not normally interfere except on grounds of law with the exercise of the Judge's discretion, but has both the power and the duty to remedy it if it is seen on other grounds that his decision will result in injustice being done.
Civil Procedure — Amendment of Pleadings — Costs — Terms of Amendment
Where a plaintiff applies to amend and has been alone at fault, he should be put on onerous terms as to costs so that the defendant should in no way suffer. It would be a hardship for the defendant to wait an indefinite period before being reimbursed the unnecessary costs for which he is liable to his lawyers through the plaintiff's mistake or negligence and through no fault of his own.
Civil Procedure — Costs — Variation of Costs Order on Appeal
The Court of Appeal has the power in a proper case to vary the terms as to costs imposed by the trial Judge where the original order would cause hardship to a party who has incurred costs through no fault of his own.

Legislation cited (1)

  • Civil Procedure Code Order 6 Rule 18

Cases cited (6)

  • Kintz v Spence (36 Ch D 774)
  • The Alert (72 LT 124)
  • Tildesley v Harper (10 Ch D 396)
  • Evans v Bartlam [1937] AC 473
  • National Provincial Bank v Gaunt [1942] 2 All ER 112
  • Derry v Peek (14 AC 337)

Full judgment

↓ Download PDF

The original judgment as reported. Read the original PDF before relying on any passage.

Karsan v Raghavjee (Civil Appeal No. 17 of 1942) [1943] EACA 3 (1 January 1943)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.