102-NLR-NLR-V-50-DE-MEL-Appellant-and-THENUWARA-Respondent.pdf
W1JEYKWAEDENE C.J.—De Mel v. Thenuwara
391
1949Present: Wijeyewardene C.J. and Nagallngam J.DE MEL, Appellant, and THENTTWARA, RespondentS. C. 41—D. C. Colombo, 13,629
Civil Procedure Code—Action on contract—No claim in reconvention—Right
to replication—New cause of action—Section 79.
Plaintiff sued the defendant for a sum of money due on the purchaseand sale of rubber coupons as brokers for the defendant. In his answerthe defendant pleaded that he was, to the knowledge of the plaintiff,a broker and was not therefore liable. Plaintiff sought to plead byway of replication a custom of the trade by which a broker was personallyliable. Defendant objected on the ground that the replication soughtto introduce a new cause of action.
Held, that the replication did not introduce a new cause of actionbut merely served to bring out clearly the real issue between the parties.
-Appeal from a judgment of the District Judge, Colombo.
H. V. Perera, K.C., with Corbett Jayewardene, for plaintiff appellant.
E. B. Wikramanayake, K.C., with J. M. Jayamane, for defendant-respondent.
April 7, 1949. Wijeyewasdene C.J.—
The plaint in this case alleged that the defendant employed the plaintiffcompany as brokers for the pin-chase and sale of rubber coupons. Theplaintiff company claimed a sum of money, as due to them on varioustransactions in respect of the purchase and sale of rubber coupons enteredinto by them in the course of such employment.
The defendant filed answer pleading, inter alia, that the plaintiffcompany knew that the defendant was acting as a broker on behalf ofhis principals in employing the plaintiff company and that the defendantwas not, therefore, liable to make any payment.
The trial was postponed on several occasions. The journal entryrelevant to the postponement granted on February 6, 1946, shows thatthe defendant knew and admitted that “ a question of usage in therubber coupon market was involved ” in this case.
On February 11, 1947, the plaintiff company moved to file a pleadingunder section 79 setting out, inter alia, a usage of the trade in the rubbercoupon market that brokers who enter into contracts for the purchaseand sale of rubber do not disclose the names of their principals and arepersonally liable on such contracts. The defendant objected to thefiling of the pleading on the ground that it sought to introduce a newcause of action. The District Judge made order refusing to allow thepleading to be filed.
I am of opinion that the pleading does not introduce a new cause ofaction {vide section 5 of the Civil Procedure Code). The cause of actionremains the same, namely, the breach of contract referred t&> in theplaint. The pleading sets out merely an implied term of the contract.It serves to bring out prominently and clearly some of the real issuesbetween the parties.
392
NAGALINGAM J.—Commissioner of Motor Transport v. Lanka
Matha Motor Transit Co., Ltd.
I set aside the- order of the District Judge and direct the plaintiff’spleading to be filed in Court.
The defendant will pay the plaintiff company the costs of this appealand the costs of March 10, 1947, in the District Court.
Naoaiihqam j.—I agree.
Appeal allowed.