Parsons v. Abdul Cader.
1941Present: Keuneman J.
PARSONS v. ABDUL CADER59—C. R. Colombo, 54,954
Amendment of caption of plaint—Judgment entered against person underwrong name—Substitution of right name—Civil Procedure Code, ss. 189and 839.
Where judgment is entered in a case against a persoii under a wrongname, the Court has inherent power to substitute the right name in thecaption of a plaint even after the decree.
y^PPEAL from a judgment of the Commissioner of Requests, Colombo.A. C. Nadarajah, for petitioner, appellant.
N.Nadarajah (with him M. Tiruchelvam), for plaintiffs, respondents.
Cur. adv. vult.
1 1 Malara Cases.
* 19 C. D. 375.
KEUNEMAN J.-—Parsons v. Abdul Cader.
June 19, 1941. Keuneman J.—
In this case action was brought and decree was entered against thedefendant in the name of M. K. S. Lebbe. In the course of certainproceedings after decree, it was discovered by the plaintiffs that the truename of the person sued was P. M. K. M. Omar Abdul Cader, who wassaid to have an undisclosed principal in India bearing the name of M. K. S.Lebbe: The plaintiffs led evidence to show that the present appellantwas the person with whom they dealt and whom they sued. Theappellant had described himself to the plaintiffs as M.. K. S. Lebbe, andeven signed documents under that name:The appellant had also been
served with summons and with notice under section 219, Civil ProcedureCode, under that name, and had not on those occasions taken up theposition that he was not M. K. S. Lebbe. In view of the discovery of thereal name of the appellant, the plaintiffs moved to have the captionamended by inserting the-words “ M. K. S. Lebbe alias P. M. K. M.' OmarAbdul Cader ”. After inquiry the Commissioner allowed this amendmentand the" appeal is from that order.
There is also an application for leave to appeal on the facts. The decisionof the Commissioner is based on overwhelming evidence led for the plaintiffsand the application must be .refused.
On the law, the appellant contends that there is no power in the Courtto amend the pleadings except, before final judgment (vide section 93, CivilProcedure Code), or to amend the decree, except in accordance with section189, Civil Procedure Code.
It has however to be remembered that what is sought to be done by theplaintiffs is not to substitute a new defendant, or to alter in any way theexisting rights and obligations under the decree, but to clarify a latentambiguity, arising from the fact that the defendant had described himself,and held himself out, as another person. There is the probability of someconfusion arising for example in the execution of the decree.
The Commissioner was of opinion that he was entitled to act undersection 839, Civil Procedure Code, and invoke the inherent power of theCourt to^make such orders as may be necessary “ for the ends of justiceor to prevent abuse of the process of the Court ”.
I think the Commissioner was right in invoking this inherent power inthis case, and that his order is justified. To use the language of P.C. Moghain The Law orf Pleadings in British India (6th ed.) p. 182. “Names areused only to designate persons, and the suit is not against names butagainst persons designated thereby”. In this passage the author wasdealing with the specific case of the effect of a decree entered in defaultagainst a person under a wrong name, and the right to have the correctname substituted after decree. I do not think this is the kind of amend-ment contemplated by section 189, and I am of the opinion that the Courthas inherent power to make such a correction.
The appeal is dismissed with costs.
PARSONS v. ABDUL CADER