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Present: De Sampayo and Porter JJ.
KANDASAMY v. SINNATAMBY.
7—D. C. Hatton, 1,185.
Civil Procedure Code, s. 1$—Note endorsed for debt due to a fifm—Actionby manager^on the note in his own name—Motion to add the firmas party-plaintiff—tBoha Me mistake.
Plaintiff brought this action on a note made by defendant infavour of M. S. A. Aravandi Kangany, and alleging that it wasendorsed by the payee to plaintiff. In answer to interrogatories,the plaintiff admitted that he himself gave no consideration for theendorsement to him, and that the consideration was a debt due bythe payee to the firm .of M. A. B. Vytbilingam Pillai, of whichplaintiff was nianager and kanakapillai. At the trial defendantraised the question of competency of the plaintiff to bring theaction. .Plaintiff then moved that the firm be added as party-plaintiffs.
Held, that, as plaintiff had not made out that it was due to a.bona fide mistake that the action was brought b|y him, the DistrictJudge was justified in refusing the application.
THE facts appear from the judgment.
H. H. Bartholomeusz (with him Garvin), for plaintiff, appellant.
Samarawickrema (with him R. L,. Pereira) for defendant,respondent.
March 24, 1924. De Sampayo J.—
This case involves a point of civil practice* At the conclusion ofthe argument of j the appeal on March 24, 1924, we expressed ouropinion that the appeal should be dismissed, bub took time to stateour reasons. The action is by one Seena Tana Kandasamy Pillaion a promissory note made by the defendant in favour of one M.S.
Aravandi Kangany, and endorsed by the payee to tbe plaintiff.In answer to interrogatories administered at the instance of thedefendant, the plaintiff admitted that he himself gave no considera-tion for the endorsement to him, and that the consideration was a.
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debt <lue ^y Aravandi Kangany to the firm oi M. A. B. V. Yythi-lingam Pillai, of which the plaintiff was the manager and kanaka-pillai. On the day of trial the defendant’s proctor raised thequestion of the competency of the plaintiff to bring the action.M. R. A. V. Vythilingam Pillai then appeared by proctor, and theplaintiff moved that the firm be added as party-plaintiffs. TheDistrict Judge refused the application, and from that order theplaintiff has appealed.
The law applicable to this matter is that contained in section 1$of the Civil Procedure Code which corresponds to Ijhe English OrderXVI. r. 2. That section gives power to the Court to add orsubstitute a party in a case where the action had been institutedin the name of the wrong person, or where it is doubtful whether ithas been instituted in the name of the right persons, “ if satisfiedthat the action has been so commenced through a bona fide mistake. ”The decisions cited on behalf of the appellant are against him ratherthan for him. In Somittare v. Jasin1 * the incumbent of a Buddhisttemple sued in respect of a land belonging to the temple, and amotion was made to add a person who was alleged to be the trustee.Wood Benton J. there observed “if it had bsen shown that atrustee had been duly appointed, and that by a bona fide mistake asto the requirements of the Buddhist Temporalities Ordinance, the ,appellant had sued in his own name, I see no reason why the trusteeshould not have been a substituted party under section 13. ” Anunreported judgment of Hutchinson C.J. i^j D. C. Kandy, 20,433,3was also cited, but there, too, the learned^ Chief Justice said thatthe action was obviously commenced in the name of the wrongperson through a bona fide mistake, and the application to addwas allowed. Similarly in the English case (Hughes v. ThePump House Hotel Co., Ltd.9) which was relied on for the appellant,the ground of the decision was that the action had beencommenced in the name of the wrong person through a bonafide mistake. This being the law, the plaintiff in this case can onlysupport the appeal if the Court below had been satisfied that therewas a bona fide mistake. The District Judge, however, so -far frombeing satisfied on that point, has stated that there was nothing beforehim. to enable him to hold that the action was brought by theplaintiff himself by a bona fide mistake.' Consequently, I think thatthe opinion we formed at the conclusion of the argument was right,and this appeal should, therefore, be dismissed, with costs.
Porter J.—I agree.
1& C. Min, December 12,1910.
* A. C. B. 167.
KANDASAMY v. SINNATAMBY