099-NLR-NLR-V-24-GARUPPEN-CHETTY-et-al.-v.-HARRISON-&-CROSFIELD,-LTD.pdf
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Present : Bertram C.J. and Schneider J.
GARUPPEN CHETTY et al v. HARRISON ACROSFIELD, LTD.
125—D. C. Colombo, 2,597fF.
Business Names Ordinance, No. 6 of 1918—Action to be dismissed ifprovision is not complied with—Court to act ex raero mota—Objection may be taken at any stage.
An objection that the provisions of the Business Names Ordi-nance, No. 6 of 1918, had net been complied with may be takenat any time before judgment.
If it comes to the notice of the Court in the course of an actionthat the; provisions of the Ordinance had not been complied with,the Court should, ex mero motu, give effect to the terms of section9 of the Ordinance. It is always open to a person whose action isdismissed under such circumstances to bring a fresh action when hehas complied with the provisions of the Ordinance.
Samarawickreme (with him Tisseveresinghe), for the appellants.
Bawa, K.C. (with him Bartholomeusz and R. C. Fonsekd), for therespondents.
December 15, 1922. Bertram C.J.—
In this case the point we have to decide is a point under the BusinessNames Ordinance, No. 6 of 19181. It transpired in the course of theaction that the plaintiffs had not complied with the provisions ofthat Ordinance, and the learned Judge has dismissed their actionon that ground.
Mr. Samarawickreme, on appeal, contends that this was an objec-tion which ought not to have been taken without an- amendmentof the pleadings, and that in the circumstances of the case such anamendment ought not to have been allowed on the ground that itwas an amendment for the purpose of asserting a technical objectionat a late stage of the case. He contends, therefore, that the DistrictJudge was wrong, relying mainly on the case of Collette v. Goode1, andin particular on the observations of Fry J. on page 847, which areconfirmed and supported by those of Cotton L.J. in the case ofEdevain v. Cohen*
I do not think that this contention is sound. The objectiontaken in this case was not on all fours with the objection taken inthe ease of Collette v. Goode (supra). That was an action for
* (1878) 7 Ch. Dio. 842.1 (1890) 43 Ch. Dio. 190.
1928.
<922.
BertramO. J.
KaruppenCheUy v.Harrison &Croafield,Ltd.
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breach of a copyright, and the objection, taken in the course ofthe case was that the provisions of the Copyright Act, 1842, withregard to registration, had not been complied with. Under theCopyright Act, the rights of a person in l'espect of any book orother production were enlarged and put upon a more favourablefooting, but as a condition of the enjoyment of those rights, it wasprovided by sections 11 and lil of the Act that pertain particularsshould be registered, and by section 24 of the Act it was furtherprovided that no proprietor could sue in respect of the infringe-ments of his copyright, unless he should have caused an entry tobe made in the book of registry in pursuance of the Act. Thequestion whether or not this condition had been complied with waspurely a question inter partes. The registration was a conditionprecedent to the enforcement of the special right of property whichthe plaintiff claimed. I do not think that our own Business NamesOrdinance is in. the same position as the Copyright Act. ThatOrdinance was passed to give effect to a general principle of publicpolicy, and to secure the enforcement of a system in^which all mem-bers of the commei’cial world of the Colony were interested. Theobject of the Ordinance w*as to prevent foreigners carrying on busi-ness in this country and from suing in our Courts under a disguise.I think it was clearly intended that, if it came to the notice of theCourt itself in the course of an action that the provisions ofthe Ordinance- had not been complied with, the Court shouldimmediately give effect to the terms of section 9 of the Ordinance,which declare that the rights of a defaulter in such a case shall notbe enforceable, all the more so in view of the fact that in any case inHwhich the enforcement of that principle might seem to inflict a hard-ship it is always open to a person, whose action is dismissed undersuch circumstances, to bring a fresh action for the enforcement of hisrights when he has complied with the provisions of the law. Indeed,I would go further and say that I think it should be the duty ofCourts to. watch over the enforcement of this Ordinance, and if aCourt sees from the facts of the case that the Ordinance had notbeen complied with, it should mero motu give effect to the provisionsI have cited- I do not think that in such a case any special leavewould be required to bring a fresh action where an action has beendismissed. No doubt such leave would be required where theplaintiff himself moved for leave to withdraw the. action and tobring a fresh one on the ground of a defect in the proceedings. Inthis case the appeal should be dismissed, with costs, without pre-judice to the plaintiff's right to bring a fresh action.
Schnkider J.—I agree.
Appeal dismissed.