Gunasena v. Kandage and Others (Weerasuriya, J.)
COURT OF APPEAL.
WEERASEKERA, J. (P/CA)
C. COLOMBO 10570/M
NOVEMBER 12, 1997,
Civil Procedure Code – Unincorporated Society – Non compliance with section 16 –
is it a fatal irregularity.
It is an established principle of law that the failure to comply with section 16 isa fatal irregularity.
It is imperative for the plaintiff respondent to have issued notice ascontemplated under section 16, if it were not so all members of theunincorporated body would have to be brought before Court. Section 16 hasbeen promulgated with this in view so that out of a large body of persons whoform an unincorporated society a particular number of persons would benominated to represent the entire body.
APPEAL from the judgment of the District Court of Colombo.
Sri Lanka Law Reports
 3 Sri L.R.
Case referred to:
1. Suppiah Pulle v. Ramanathan – 39 NLR 90.
Manobara R. de Silva for defendant-appellant.
K. S. Ratnavel with Kumari Gamachchige for plaintiff-respondent.
Cur. adv. vult.
WEERASEKERA, J. (P/CA)
The plaintiff instituted this action by his plaint dated 11.02.91 andin the plaint in paragraph (2) asserted that the defendants, theSri Lanka Red Cross Society, was an unincorporated body andmoved in the prayer for notices in terms of section 16 of the CivilProcedure Code. The plaintiff claimed damages by reasons of thedeath of the plaintiffs husband that occurred in the course of anaccident. The plaintiff alleged that the 1st defendant was the driver ofthe vehicle in which the deceased was transported and which metwith an accident whilst doing so. The 2nd, 3rd, 4th and 5thdefendants were the office bearers of the Sri Lanka Red CrossSociety and sued in persona.
The defendants in their answer took up the position that they werean incorporated society by reason of being set up under a RoyalCharter. They also took up the position even conceding but notadmitting that it is an unincorporated body that there has been nocompliance with section 16 of the Civil Procedure Code. They alsoalleged in their argument before us today that inasmuch asnegligence has been proved damages decreed is excessive.
The learned District Judge by his judgment dated 12.09.94 gavejudgment in a sum of Rs. 400,00/- in favour of the plaintiff. Thisappeal is from that order.
Mr. de Silva on behalf of the appellant has taken up the position thatinasmuch as it has been pleaded in paragraph (2) of the plaint that“the plaintiff being an unincorporated body section 16 of the CivilProcedure Code and the provisions not being complied with theplaintiff would not be entitled to maintain this action in its present form."
We find that on the authority of Suppaiah Pulle v. Ramanathan111 itis an established principle of law that the failure to comply withsection 16 was a fatal irregularity".
Ranasinghe v. Nandanie Abeydeera (Weerasekera, J.)
Learned Counsel for the respondent argued that section 16 doesnot make it imperative for the plaintiff to have issued notice ascontemplated. We are unable to accept this position inasmuch as if itwere not so all the members of the unincorporated body woulchhaveto be brought before Court. Section 16 has been promulgated withthis in view, so that out of a large body of persons who form anunincorporated society a particular number of persons could benominated to represent the entire body. The prudence underlyingsection 16 is clearly demonstrated by its practical application. Inthose circumstances we are of the view that section 16 and the failureto comply with section 16 creates an irregularity which is fatal, in thiscase in the plaint and the prayer the plaintiffs have sought to complywith section 16 though they had not proceeded with it.
We are of the view that the parties seeking to sue an unincorporatedbody should get permission of Court in terms of section 16. In this casean application has been made by the respondent’s Counsel that thecase be heard de novo after application has been made afresh interms of section 16 of the Civil Procedure Code.
We find that in the interest of justice this procedure would be mostappropriate inasmuch as the plaint and the prayer does containsufficient material for seeking relief under section 16 of the CivilProcedure Code and that the interest of justice would be served bythe correct procedure being followed.
The prescriptive rights of parties are not affected, if an order tohear the case de novo is made. In those circumstance we makeorder that in the interest of justice the case be heard de novo andthat the plaintiff would be entitled to seek the relief he seeks with the*permission of Court as prayed for in paragraph (a) to the prayer ofthe plaint and after due compliance with section 16 of the CivilProcedure Code proceed to trial.
Forward record to the District Court of Colombo for hearing denovo. Judgment dated 12.09.94 is set aside.
JAYASINGHE, J. -1 agree.