NOORBHOY v. MOHIDEEN PITCHE

002-NLR-NLR-V-31-NOORBHOY-v.-MOHIDEEN-PITCHE.pdf


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Present; Drieberg and Akbar JJ.
NOORBHOY v. MOHIDEEN PITCHE.
29—D.C. Colombo, 28,315.
Action by way of summary procedure—Promissory note—Grant of leaveto defend—Addition of money count for goods sold and delivered—Powers of Court.
Where, in an action by way of summary procedure on a promis-sory note, the defendant was given leave to defend, the Court haBpower to allow an amendment of the plaint by the addition of analternative cause of action for goods sold and delivered.
A
PPEAL from an order of the District Judge of Colombo. Thefacts appear from the judgment.
A. E. Keuneman, for plaintiff, appellant.
V. Perera {with Nadarajah), for defendant, respondent.
June 20, 1929, Akbar J.—
The plaintiff sued the defendant in summary procedure for therecovery of Rs. 450 due to plaintiff on a promissory note datedApril 11, 1928.
31/4-
1929.
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1829.
AuutJ.
Noorbhoy
«.
Mohidem
Pitch*
The defendant filed affidavit alleging that the note was a forgeryand obtained leave to appear and defend the action.
The case went to trisl only on one issue, but during the course ofthe trial on certain admissions by plaintiff’s knnakapillai that hehad inserted the rate of interest of 12 per cent, a further issue wasraised whether the note was not void for material alteration.Notwithstanding plaintiff’s objection the issue was allowed, where-upon the plaintiff suggested an issue on an alternative cause ofaction for: goods sold and delivered, which issue was disallowed bythe learned District Judge. The District Judge has dismissed theplaintiff’s action on the ground that the note was materially alteredby the unauthorised insertion of the rate of interest. The appealis from both these orders dismissing the plaintiffs action with costs-on the ground of material alteration and the refusal of the DistrictJudge to allow the new issue for . goods sold and delivered. Severalinteresting points of law. were argued on the question of the refusalof the District Judge to allow the alternative- cause of action. Oneof the grounds on which the District Judge refused the amendmentwas that he had no power to allow such an amendment in an actionbrought in summary procedure when the entire scope of the actionwas liable to be changed by the addition of a count for goods soldand delivered, a count which could only be maintained in an actionframed under the regular procedure. On this point the District-Judge has gone wrong. The question has been concluded in arecent judgment in an English Court of Appeal Case, namely,Thomas v. Alderton, Limited. 1 In an interesting judgment, theMaster of the Rolls points out that once leave to defend has beengiven, an action under 'Order XlV became in no way differentiatedfrom all other actions. The remarks of the Court of Appeal willapply similarly to a case instituted under Chapter LIII of t-he CivilProcedure Code.
The second argument on the law on the question of the refusalof the District Judge to allow the amendment, depends to someextent on certain facts in this case. There is evidence in this casethat the defendants bought goods on January 24, 1928, for the sumof Rs. 502.49. The memorandum of the goods and the promissorynote were sent to the defendant, who is a trader in Badulla, but thedefendant refused to sign the promissory note.
When the defendant came to Colombo in April, 1928, he is saidto have given the promissory note for Rs. 450 (the subject of thiscase) and promised to pay the balance Rs. 52.49. As there wasdefault on the part of the defendant in the payment of these two. sums, two actions were filed on the same day (June 11, 1928), namely,thin case and C. R. case No. 44,581 for the balance Rs. 52.49. It isargued by Mr. Perera for the respondent that there was a novation
1 (1928) 1 K. B. D. 638
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and an extinction of the old contract end that, therefore, plaintiffcannot now sue on a count for goods sold and delivered. Mr. Perera’sargument places the plaintiff on the horns of a dilemma; either therewas an extinction of the original contract, or there was not. If. therewas an extinction, then clearly the plaintiff cannot add the count forgoods sold and delivered and must elect to go on with his action onthe note. If there was no extinction, then it is urged that section 34of the Civil Procedure Code estops the plaintiff from suing for thesum o^ Rs. 450 as a count for goods sold and delivered, because theCourt of Requests action must be taken as an election by the plaintiffto sue only for that sum of Rs. 52.49, the subject-matter of thataction upon the cause of action arising on the count for goods soldmid delivered. It is not possible for the plaintiff to get out of thisimpasse by pleading that each item of the goods bought by thedefendant on January 24, 1928, was a separate contract, becausethe form of the amendment of the plaint suggested by the plaintiff’sCounsel, and which has been disallowed by the District Judge,treats the sale of the various items on January 24, 1928, as one sale,and it is not possible to separate the. Rs. 52.49 from the Rs. 450' outof the total of Rs. 502.49 by. any means of subdivision of the itemssold on that day. In this state of affairs we thought that it wasour duty to send for the record in the Court of Requests case toenable us to satisfy ourselves as to the manner in which that actionhas been framed and the stage which it has reached. I find fromthis record that the plaintiff sued the defendant for the sum ofRs. 52.49 as being due to him for goods sold and delivered onJanuary 24, 1928, and the only issue in that case was whetherplaintiff sold and delivered goods of the value of Rs. 52.49. Thelearned Commissioner has dismissed the plaintiff’s action withoutawarding any costs to either party on the ground that there was anovation on April 11, 1928, and that the promissory note took theplace of the earlier sale of goods to the value of Rs. 502.49. Thisjudgment was delivered on October 7, 1928, and there- has been noappeal filed in respect of it; so that the effect of the judgment isthat the plaintiff has failed in his action on the count of goods soldand delivered on January 24, 1928. Therefore, not only doessection 34 of the Civil Procedure Code operate, but also section 207.The plaintiff cannot, therefore, in my opinion, claim to add themoney count in this action, and the District Judge was right inrefusing to allow the amendment of the plaint. There is one otherpoint left for decision in this case, and that is, on the order of theDistrict Judge holding that the promissory note sued upon in. thisease was void on the ground of material alteration. When theissue on this count was allowed by the District Judge, an applicationwas made by the plaintiff for a postponement of the case to enablehim to call a witness of the name of Ally Bhoi, who was the manager
1929.
Ana J.
Noorbhoy
®.
Mohideen
Pitehi
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fttfcand attorney of the plaintiff, who filed this case on behalf of the
jplaintiff, and who knew about the transaction, to prove that plaintiff
——had defendant’s authority to insert the rate of interest in the note.
NoorbKoy appears that Ally Bhoi was not in the Island, and as the post-Mohideenponement would occasion some delay, it was disallowed by the
PifekeDistrict Judge. The District Judge purported to do so, because
the evidence of the kanakapillai proved in his opinion that theinsertion of the rate of interest was clearly not. authorized by thedefendant. It is contended, however, for the plaintiff that defend-ant had transactions with the plaintiff much earlier than on A$ril 11,1928, and that it was during this earlier transaction that defendantauthorized the insertion of the rate of interest. There is somecorroboration of the plaintiff’s contention in the fact that thepromissory note sued upon, which is on a printed form, containsin two places references to the rate of interest which were obviouslyleft blank, and which defendant must have noticed when he signedthe note. In spite of the fact that Ally Bhoi would probably nowbe prepared to give evidence, as the District Judge says, to meet thenew turn which the case has taken, I think that in all the circum-stances plaintiff must be given this opportunity. As a matter offact the defence was a plea of forgery of the signature of the note,and this new issue on the ground of material alteration only aroseincidentally in the case. The defendant has not called any evidenceto prove the alleged forgery, and I do not see, therefore, how he can be' prejudiced by the Court giving an opportunity to the plaintiff tocall Ally Bhoi as a witness. It is not as if Ally Bhoi is a witnesswho is introduced for the first time to suit the occasion. It is clearfrom the record that he was-certainly plaintiff’s attorney at thetime of these transactions, and even supposing the kanakapillai'sevidence can be construed strictly as the District Judge has done,yet the plaintiff is entitled to call Ally Bhoi for whatever it is worthto contradict the kanakapillai. I therefore think the order of theDistrict Judge should be set aside and the case sent back to ^enablethe plaintiff to call Ally Bhoi. The defendant will be at liberty tolead any evidence he desires, not only on the plea of materialalteration, but also on the issue of forgery. I do not think, however,that the plaintiff is entitled to the costs of this appeal, because hehimself is to some extent to be blamed for the difficulty that hasnow arisen. The costs of appeal will, therefore, be costs in thecause. The appeal is allowed and the case is remitted for thepurpose indicated by me above.
'Dbiebero J.— I agree.
Appeal allowed.