[*553] 1986 July 14
(HADJITSANGARIS, P.D.C. AND HADJIHAMBIS, D.J.)
in THE DISTRICT COURT OF LIMASSOL
Andreas Georghiou and Another,
Plaintiffs,
v.
Michalis Kleanthous and Another,
Defendants.
(Action No. 1134/85).
Civil Wrongs - Facts relied upon by plaintiffs constituting a felony - The Civil Wrongs Law, Cap. 148, section 67, as amended by section 2 of Law 87/73 - Failure to comply with requirement of notice - Action not ipso facto void, if it is not based in its entirety on the felony - in such a case only the allegations amounting to the felony will be struck out.
Civil Procedure - Striking out matter from writ of summons or statement of claim - The Civil Procedure Rules, 0.19, R.26 - Whether procedure available to plaintiff - Question determined in the affirmative.
Civil Procedure - Pleadings - Amendment - Deletion of allegation from a pleading - It is an instance of amendment.
C. Demetriades for A. Neocleous, for Applicants-Plaintiffs.
C. Melas, for Respondent-Defendant No.1.
E. Anastasiou, for Respondent-Defendant No.2.
RULING
The ruling of the Court was delivered by:-
HADJITSANGARIS. P.D.C.:- By virtue of this application the applicants-plaintiffs pray for an order of the Court for the deletion from the writ of summons and the Statement of Claim of certain words involving allegations which might disclose a felony in relati- [*on to which written notice to the Attorney-General should have been given before the filing of the action, something which was not done in this case.
The application was based both on the rules as to amendment of indorsement or pleadings (0.25, r. 1) and on the rules as to the striking out of unnecessary or scandalous matter which may tend to prejudice, embarrass or delay the fair trial of the action (0.19, r.26).
In the course of his address to the Court learned counsel for the applicants-plaintiffs effectively based his application on 0.25, r.1 and argued in so far as an amendment can be granted at any stage and no irreparable damage would be caused to the defendants- respondents by amendment, the same should be allowed. It is further alleged in paragraph 4 of the affidavit filed in support of the application that it was never intended by the applicants- plaintiffs to allege the commission of any criminal offences by defendant 1 and, therefore, the words in question are superfluous and should be deleted.
Learned counsel for the respondents-defendants argued that in so far as the application is based on 0.19, r.26, only the other side has the right to apply for matter to be struck out and, further, that the indorsement on the writ can only be amended before pleadings have been filed and, as an action in which there are allegations of a felony cannot be filed at all before notice to the Attorney-General, an amendment cannot be effected in this instance but the entire action is doomed to failure from the beginning and the Court should not allow it to be revived under the guise of an amendment. Particularly on this issue learned counsel for the applicants-plaintiffs cited the decision of Nikitas, P.D.C. between Mavrellis and Others v. Eleftheriades and Others in Action No. [*2833/82 of the District Court of Nicosia, dated 2ist April, 1983, and the decision of the Supreme Court in the same case which is reported in (1985) 1 C.L.R. 436.
In so far as the matter might be considered under 0.19, r.6, we do not believe this rule, although usually relied upon by a defendant, is unavailable to the other side as Mr. Melas has argued. Even so, we would rather consider this application on the wider ground argued by Mr. Demetriades, that is, the ground of amendment in so far, after all, as striking out is really an amendment by way of deletion.
We need not embark on the authorities relating to the principles applicable in applications for amendment except to say that the amendment is readily granted even at a late stage provided there is no prejudice to the other side, and in this instance none such has been shown to exist. On the contrary, it is beneficial to the defendants as it would limit the plaintiffs' claims by detracting from those already raised and the amendment which is applied for before the commencement of the hearing can be compensated for by costs.
The main argument against the proposed amendment seems to have been that the action was defective from the beginning and, therefore, by this amendment the action would effectively be saved whereas it ought to have been dismissed. Although we are not disputing that proceedings which are exclusively based on a felony are ipso facto void unless the consent of the Attorney-General is obtained in advance as a condition precedent, nevertheless we are of the opinion that this only applies in cases where as stressed above the action is based on its entirety on a felony. In the instant case, however, this is not so for there seem to be other causes of action and remedies disclosed by the writ and Statement of Claim and the cause of action proceeding on the alleged felony is only one [*of them. Hence, it is possible for the action to survive even though the offending part is struck out. In this respect we follow with approval the decision of Nikitas, P.D.C. above referred to where the same course was followed and in relation to which there was no appeal, the decision of the Supreme Court turning on another point.
In the result there will be Orders as per application. The rules as to amendment to be followed. The action is hereby taken off the trial list pending the filing of the amended indorsement of the writ and the Statement of Claim. As soon as the new pleadings are completed, either party to apply to the Court so that a new date of hearing will be given.
Applicants-plaintiffs to pay all the costs thrown away including the costs of this application. Costs to be assessed by the Registrar.
Application granted