041-SLLR-SLLR-1999-V-1-W.-M.-MENDIS-CO.-v.-EXCISE-COMMISSIONER.pdf
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W. M. Mendis & Co. v. Excise Commissioner
351
W. M. MENDIS & CO.
v.EXCISE COMMISSIONER
COURT OF APPEALDE SILVA, J.,
WEERASURIYA, J.
A. NO. 285/98 (REV)
C. COLOMBO NO. 16919/MRMARCH 29. 1999
Amendment in caption of the plaint – Juristic person – Natural person – Newdefendant – Technical objections – Interest of justice – Falsa Demonstratio nonnocet cum de corpore vel persona constat – Falsa demonstratio non nocet cumde corpore ret persona constat.
The plaintiff-petitioner instituted action against the defendant-respondent torecover a certain sum of money, the plaintiff claimed that this sum of moneyhad been wrongfully levied by the defendant – the Excise Commissioner.The Attorney-at-law for the defendant filed the proxy of the defendant andthe said proxy was signed as W. N. F. Chandraratne, the answer filed bythe defendant on 2.8.96 stated that the defendant named therein is neither anatural person nor a juristic person and pleaded that the plaintiff cannot maintainthe action. Trial was fixed for 4.12.96, after the trial date was fixed theplaintiff filed a motion seeking permission to amend the plaint to read asW. N. F. Chandraratne, Excise Commissioner, now known and designated as“Commissioner-General of Excise'. The defendant objected to the amendment,and the Court upheld same.
Held:
Per De Silva, J.
'In considering the correctness of the decision one has to be alive tothe often quoted maxims – false description does not harm if there be sufficientcertainty as to the subject-matter or the person and any inaccuracy indescription is to be overlooked if the subject matter or person is well-known.'
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Sri Lanka Law Reports
[1999] 1 Sri LR.
W. N. F. Chandraratne filed his proxy and answer, if as pleaded thedefendant named is neither a natural nor a juristic person, no proxyor answer could have been filed on behalf of the defendant. Havingfiled the proxy and the answer the defendant at this stage is not entitledto raise the objection that the plaint is defective.
'Names in the caption of a plaint are used only to designate personsbut an action is not instituted against names but against persons des-ignated thereby.'
'Supreme Court – is a Court of law which should not be tramelledby technical objections and that it is not an academy of law' – Per ChiefJustice Abrahams*51.
The object of rules of procedure is to decide the rights of the partiesand not to punish them for their mistakes or shortcomings. A party cannotbe refused just relief merely because of some mistake, negligence orinadvertence."
APPLICATION in Revision from the Order of the District Court of Colombo.
Cases referred to:
Land Commissioner v. Ladamuttu Pillai – 62 NLR 169.
The Secretary to the Treasury v. Mediwake – 74 NLR 503.
Singho Mahattaya v. Land Commissioner – 66 NLR 94.
C. A. Odiris Silva and Sons Ltd. v. Jayawardena – 55 NLR 335.
Velupillai v. Chairman, Urban Council, Jaffna – 39 NLR 464.
Bank of Ceylon v. Ramasamy – 1986 1 CALR 481.
Parsons v. Abdul Cader – 42 NLR 383.
Mackinnon Mackenzie & Co., Ltd. v. Grindlays Bank Ltd. – 1986 2 SLR 272.
K. Kanag-lswaran, PC with Kushan de Alwis and Ms. Vindya Weerasekera for
plaintiff-petitioner.
Y. Wijetilleke, DSG for defendant-respondent.
Cur. adv. vult.
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W. M. Mendis & Co. v. Excise Commissioner
(De Silva, J.)
353
May 07, 1999.
DE SILVA, J.
The plaintiff-petitioner (hereinafter referred to as the plaintiff) institutedaction against the defendant-respondent (hereinafter referred to asdefendant) by a plaint dated 11th September, 1995, to recover a sumof Rs. 45,998,113.91 with legal interest. The plaintiff claimed that thisamount of money had been wrongfully levied by the defendant andhe is entitled to recover the excess excise duty paid by himin terms of the Provisions of the Excise Ordinance.
The defendant is named in the plaint as the "Excise Commissioner".The attorney-at-law for the defendant filed the proxy of the defendantand the said proxy was signed by "W. N. F. Chandraratna".His answer was filed by the defendant on the 2nd of August, 1996,objecting to the plaint on the basis that the defendant named thereinis neither a natural person nor a juristic person and pleadedthat for the aforesaid reason the plaintiff cannot maintain theaction. The trial in case was fixed tor the 4th December, 1996. Afterthe trial date was fixed the plaintiff by filing a motion sought permissionof Court to amend the plaint. The plaintiff attempted to amendthe manner in which the defendant was described from "ExciseCommissioner" to W. N. F. Chandraratna, Excise Commissioner, nowknown and designated as "Commissioner-General of Excise". Thedefendant objected to the proposed amendment on the followinggrounds. :
That the amendment would convert an action that is null andvoid into an action that is valid in law by the process ofconverting an action instituted against a person who is neithera natural nor a juristic person into a valid action against anatural person.
The amendment if permitted would change the scope of theaction in that a "new defendant" will be brought in to the caseand that some of the causes of action pleaded in the plaintagainst the new defendant are prescribed and accordingly grave
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and irreparable loss and damage would be caused to the newdefendant by defeating his plea of prescription.
After hearing both parties the learned District Judge by his orderdated 10.03.1998 refused permission to amend the caption asprayed for.
The present application is to revise the said order of the learnedDistrict Judge.
The learned Deputy Solicitor-General submitted that only naturalor juristic persons can be parties to an action and therefore the actionfiled against the Commissioner of Excise is a nullity. He reliedon the decisions of Land Commissioner v. Ladamuttu PillaP TheSecretary to the Treasury v. Mediwaked and Singho Mahattaya v.Land Commissioned. I do not doubt the correctness of the abovedecisions. However, it is to be stressed that in the aforesaid decisionsthe issue of an amendment of the pleadings was not adverted toand considered.
I wish to refer to certain decisions of the Supreme Court wheremore serious and grave misdescription and errors in regard to theenumeration of names of parties have been amended lawfully by theCourts. In C. A. Ordiris Silva and Sons Ltd. v. Jayawardenal41 themisdescription in the plaint and a continuing error as to the nameof the defendant was held to have been lawfully rectified.
The plaintiff in that action mistakenly named in the caption thedefendant as Odiris Silva and Sons when in fact the defendant wasan incorporated body designated as Odiris Silva and Sons Ltd. Theamendment which was effected in the lower court, amidststrenuous objections, was upheld as a correct and lawful orderby the Supreme Court.
In Velupillai v. The Chairman, Urban Council Jaffna, Chief JusticeAbrahams, in upholding the amendment in that case, Stressed that
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W. M. Mendis & Co. v. Excise Commissioner
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the Supreme Court is a Court of law which should not be trammelledby technical objections and that it is not an academy of law. In thatcase the plaintiff who had a valid cause of action against the UrbanCouncil, Jaffna, which was an incorporated body and hence a juristicperson, named as the defendant, the Chairman of that council whowas neither a natural person or juristic person. When the case cameup for trial a preliminary issue was raised on behalf of the defendantthat the action was not properly constituted. The learned District Judgeallowed the said issue and refused the application of the plaintiff toamend the caption on the ground that the amendment of the captionwould not remedy the situation.
On an appeal to the Supreme Court, Chief Justice Abrahamremarked that the plaintiff always intended to sue the Urban Councilbut due to a misconception on the part of the plaintiffs lawyerthat the council could not be sued, the Chairman was made adefendant. The learned Judge emphasized : ”1 think if we do not allowthe amendment in this case we should be doing a very grave injusticeto the plaintiff. It would appear as if the shortcoming of his legaladvisor, the peculiarities of law and procedure and the congestionof Court have all combined to deprive him of his cause of action.
for one, refuse to be a party to such outrage upon justice." It isto be noted that in this case the amendment was allowed despitethat it defeated plea of prescription of the "new defendant".
The judgment in Velupillai v. Chairman Urban Council, Jaffna,(supra) was followed in the case of Bank of Ceylon v. Ramasam/61.The Court held that "The description given to the defendant couldonly refer to the Bank of Ceylon and that the insertion in theplaint of the Manager, Bank of Ceylon as defendant was a misnomerwhich could be corrected.
In the instant application, the original plaint filed in Sinhala languagenames the defendant as "Commissioner of Excise". Counsel forthe plaintiff submitted that through inadvertence it had failed toname the holder of the office of Excise Commissioner who was
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W. N. F. Chandraratna and that no amendments were sought to bemade in respect of any of the averments in the plaint relating to themerits of the plaintiffs action and/or any of the causes of actionpleaded in the original plaint. Counsel further submitted that theobjections raised by the defendant were founded not on substancebut on pure technicality.
An examination of the English copy of the plaint which is filedof record shows that there are two dotted lines above the words"Excise Commissioner”. One could reasonably infer that the plaintiffintended to include further particulars in the caption but had not doneso due to inadvertence.
In considering the correctness of the decision of the learnedDistrict Judge one has to be alive to the often quoted legal maxims,namely Falsa demonstratio non nocet cum de corpore vel personaconstat (a false description does not harm if there be sufficient certaintyas to the subject-matter or the person) and Falsa demonstratio nonnocet cum de corpore vel persona constat (any inaccuracy in descrip-tion is to be over looked if the subject-matter or person is well-known).
In the instant case W. N. F. Chandraratna filed his proxy andanswer. If as pleaded in the answer the defendant named in theplaint is neither a natural nor a juristic person, no proxy, or answercould have been filed on behalf of the defendant in the case. I amof the view that having filed the proxy and the answer the defendantat this stage is not entitled to raise the objection that the plaint wasdefective. The proper course of action would have been for theAttorney-General on behalf of the Commissioner-General of Exciseto file a motion and invite the Court to either reject the plaint orto return the plaint to the plaintiff as the plaint is defective.Since the proxy, and answer of W. N. F. Chandraratna have beenfiled one cannot say that the defendant named in the plaint was not"non existent" but if referred to a natural person who wasinaccurately described. As Justice Keuneman remarked in Parsonsv. Abdul Caderm : "names in the caption of a plaint are used only
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to designate persons but an action is not instituted against namesbut against persons designated thereby".
It is also pertinent to re-echo the observations of Chief JusticeSharvananda in Mackinnon Mackenzie & Co., Ltd. v. Grindlays BankLtd.m: "Provisions of the amendment of pleadings are intended forpromoting the ends of justice and not for defeating them. The objectof rules of procedure is to decide the rights of the parties andnot to punish them for their mistakes or shortcomings. A party cannotbe refused just relief merely because of some mistake negligenceor inadvertence".
In the attendant circumstances of this case I hold that the orderdated 10.03.1998 of the learned District Judge is erroneous and illegal.
I set aside the order and direct that the amendment of the captionas prayed for, be allowed. I also direct that the defendant should begranted an opportunity to file a fresh answer if he so desires. Withregard to costs I make no order.
WEERASURIYA, J. – I agree.
Application allowed.