Seylan BanKv. inangavell
SEYLAN BANKvTHANGAVEILCOURT OF APPEALAMARATUNGA, J. ANDWIMALACHANDRA, J.
C. HATTON M/729JUNE 9, ANDJULY 6, 2004
Civil Procedure Code – Correction of misdescription of name – section 93 ands. 754(2) – Appealable order – Does revision lie? – Unexplained delay-Falsademonstratio non nocet cum de corpora vel persona constat.
The plaintiff respondent sought to recover an overdraft facility granted to oneSinnamah Thangavelu. The original plaint the Defendant's name is describedas Sabapathy Thangavelu • address being the same. Summons were servedon Sinnamah Thangavelu. Upon summons being served Sinniah Thangaveluappeared in court, filed proxy/answer describing himself as S.Thangavelu.
When the case was called on 05.04.2002 attorney-at-law for the defendantpetitioner submitted that though he had filed proxy for the defendant’sSabapathy Thangavelu, his correct name is Sinniah Thangavelu. The trialjudge directed the plaintiff to correct the mistake in the caption of the plaint.The trial court accepted the amended plaint on 10.01.2003 and granted timeto the defendant to file his answer.
The defendant-petitioner moved in revision.
Sri Lanka Law Reports
 2 Sri L.R
No revision lies. The petitioner has not resorted to his statutory right ofappeal with leave of court. He has not set out in his petition for revisionany exceptional circumstances.
There is a delay of one year and four months in respect of the orderdated 07.03.2002 and delay of 7 months from the order dated10.01.2003. The petitioner has not explained the delay.
The amendment effected to the caption is only the correction of a cler-ical error in the name of the defendant. The defendant's surname andaddress have been correctly given.
Names are needed only to designate persons and the suit is notagainst names but against persons designated thereby.
A false description does not harm if there is sufficient certainty as to theobject, corpus or person.
The amendment consists of the correction of a clerical error appearingonly in the caption of the plaint. The mistake is not a mistake of theidentity of the man but only his name. It does not fall within the catego-ry of the amendments contemplated under section 93.
AN APPLICATION for revision from the order of the District Court of Hatton.
Cases referred to:
Jayasinghe v Gnanawathie Menike – (1997) 3 SRI LR 410.
Odiris Silva & Sons Ltd. v Jayawardena – 55 NLR 335.
Gunasekera v Abdul Latiff – (1995) 1 SRI LR 225 (distinguished)
August 27, 2004
WIMALACHANDRA, J.This is an application in revision filed by the defendant-petition-er (hereinafter referred to as the ‘defendant’) to revise the orders ofthe learned District Judge of Hatton dated 7.3.2002 and10.01.2003.
Briefly, the facts relevant to this application are as follows:
The plaintiff-respondent (hereinafter referred to as the ‘plaintiff’)instituted the action bearing No. 729/M in the District Court of
Seylan Bank v. Thangaveil
Hatton against the defendant for the recovery of Rs. 90,022/- beingthe amount of the unpaid overdraft facility granted by the plaintiff.This overdraft facility has been granted to Sinnaiah Thangavelu ofKovilkade, Gonagala Division, Fordyce Group, Dickoya. In the orig-inal plaint the defendant’s name was described as SabapathyThangavelu of Kovilkade, Gonagala Division, Fordyce Group,Dickoya. However, the summons had been served on SinnaiahThangavelu, and upon summons being served on him the saidSinnaiah Thangavelu appeared in Court on the summons return-able date, filed proxy and later filed answer describing himself asS. Thangavelu. When this case was called on 5.4.2002,Mr. Jothikumar, attorney-at-law appearing on behalf of the petition-er submitted that though he had filed the proxy for the defendant asSabapathy Thangavelu his correct name is Sinnaiah Thangavelu(vide proceedings dated 5.4.2002 in the District Court of Hatton).He had stated thus:
The learned District Judge after considering the submissionsmade by counsel and all the relevant facts, made order on thesame day (5.4.2002) directing the plaintiff to correct the mistakerelating to the name of the defendant in the caption of the plaint. Asdirected, the plaintiff tendered the amended plaint, consisting ofthe correction of the defendant’s name only in the caption of theplaint, on 24.5.2002.
The defendant filed a statement of objection to the amendedcaption of the plaint on 4.10.2002. The learned Judge made orderon 10.01.2003 accepting the amended plaint and on the same daythe Court granted time till 7.3.2003 for the filing of the amendedanswer. It is against the orders dated 7.3.2003 and 10.1.2003 thedefendant made this application in revision.
The learned Counsel for the plaintiff raised the following prelim-inary objections to the application in revision.
the plaintiff has made this application on 17.7.2003, sevenmonths after the order dated 10.01.2003.
Sri Lanka Law Reports
 2 Sri L.R
the plaintiff has not made any attempt to explain the delay.
the plaintiff has failed to exercise the statutory right of appealagainst the orders dated 10.01.2003 and 7.3.2003, and theplaintiff has failed to disclose the exceptional circumstanceswarranting the exercise of the revisionary jurisdiction of thiscourt.
On 5.2.2002 the learned Judge made order to correct the somisdescription of the name of the defendant and ordered theplaintiff to effect the amendment to the caption by tendering
an amended plaint. The court accepted the amended plainton 24.5.2002. The plaintiff has not challenged the aforesaidorders dated 5.2.2002 and 24.5.2002.
I shall first deal with the preliminary objections raised by theplaintiff.
Where the law has provided for a right of appeal, and if the peti-tioner without exercising that right of appeal seeks the revisionarypower of this court, the court would exercise such powers only in 60exceptional circumstances.
There is a right of appeal against the impugned order of thelearned District Judge with the leave of this Court in terms of sec-tion 754(2) of the Civil Procedure Code. However the petitioner hasnot exercised this right. In these circumstances, the revisionarypowers of this court may be exercised only if the petitioner’s appli-cation discloses exceptional circumstances warranting the exerciseof the revisionary jurisdiction of this court.
The petitioner has not resorted to his statutory right of appeal ,with leave of this court. Moreover he has not set out in his petition 70for revision any exceptional circumstances, as to why he failed tofile a leave to appeal application as provided by law.
It is now settled law that revisionary power would be exercisedeven though there is a right of appeal only if there is the existenceof special circumstances necessitating the indulgence by court toexercise the revisionary remedy. In the instant case the petitionerhas not explained his failure to exercise the right of appeal in termsof section 754(2) of the Civil Procedure Code. Nor has he estab-lished any exceptional circumstances to invoke the revisionaryjurisdiction.80<
Seylan Bank v. Thangaveil
In this application in revision the petitioner seeks to set aside theorders dated 7.3.2002 and 10.01.2002 made by the learned DistrictJudge. The petitioner has filed this application on 17.7.2003. Itappears that there is a delay of one year and four months in respectof the order dated 7.3.2002 and a delay of seven months from theorder dated 10.01.2003. The petitioner has not explained the delay.Unexplained and unreasonable delay in seeking relief by way ofrevision, which is a discretionary remedy, is a factor which will dis-entitle the petitioner to it. An application for judicial review shouldbe made promptly unless there are good reasons for the delay. The 90failure on the part of the petitioner to explain the delay satisfactori-ly is by itself fatal to the application.
For these reasons I uphold the preliminary objections raised bythe respondent and on this ground alone this application warrants .dismissal without going into the merits.
However, I shall briefly examine whether there is any merit in thepetitioner’s application. It appears to me that the most importantorder made by the learned Judge is the order made on 5.4.2002wherein the learned Judge directed the respondent to correct thename of the defendant and amend the caption of the plaint.100
Accordingly, as directed by the learned Judge on 5.4.2002 theplaintiff tendered the amended plaint (marked “X6”), amending thecaption of the plaint, substituting the name of Sinnaiah Thangavelufor the name of Sabapathy Thangavelu. It is to be noted that theCourt granted permission on 5.4.2002 to amend the caption of theplaint. However the defendant has not appealed against that ordernor has he sought to revise the same. Accordingly, the order dated5.4.2002 stands unchallenged.
The defendant did not dispute the fact that he has been a con-stituent of the plaintiff bank and his account number and address 110have been correctly indicated. It is to be observed that the defen-dant has acted on the basis that he is the defendant cited in thecaption of the plaint and accepted the summons, filed proxy andanswer. The learned District Judge has clearly observed this fact inhis order dated 10.01.2003. His observations at page 2 of theorder are as follows:
Sri Lanka Law Reports
 2 Sri LR
The amendment effected to the caption of the plaint is only the 120correction of a clerical error in the name of the defendant. Thedefendant’s surname (i.e. Thangavelu) and address have been cor-rectly stated. In the case of Jayasinghe v Gnanawathie Menike 0)Jayasuriya, J. held that:
“It is an old and rational maxim of law that where the partyto a transaction or the subject of a transaction is actuallyand corporeally present, the calling of either by a wrongname is immaterial:
-Names are needed only to designate persons and the
suit is not against names but against persons designated130
Jayasuriya, J. in the course of his judgment at pages 413 and414 observed:
“I wish to refer to certain decisions of the Supreme Courtwhere more serious and grave misdescriptions anderrors in regard to the enumeration of names of partieshave been effected lawfully by the courts. In the decisionin Odiris Silva and Sons Limited v JayawardeneW a mis-description in the plaint and continuing error as to thename of the defendant was held to have been lawfully horectified. The plaintiff in that action mistakenly named inthe caption the defendant as Odiris Silva and Sons whenin fact, the defendant was an incorporated body desig-nated as Odiris Silva and Sons Ltd. The amendmentwhich was effected in the lower court, amidst strenuousobjections, was upheld as a correct and iawful order bythe Supreme Court which proceeded to hold that for thepurpose of reckoning the period of prescription, the actionagainst the Incorporated Company must be taken to havebeen instituted on the date of the original plaint and not 150upon amendment of the caption of the plaint.”
Seylan Bank v Thangaveil
Justice Jayasuriya went on to state as follows (at Page 415):
“As Justice Kenueman has remarked: ‘Names only des-ignate persons but a suit is not against names but againstpersons designated thereby’. The learned District Judgehas effected a mere correction in one name in the captionacting on the often quoted legal maxim-Falsa demonstra-te non nocet cum de corpora vel persona constat (Afalse description does not harm if there be sufficient cer-tainty as to the object corpus or person) A latent ambigu- 160ity of this nature can always be corrected by a trial Judgein the exercise of his inherent power to secure the endsof Justice.”
The defendant relied on the judgment in the case of Gunasekerav Abdul LatiffW where Ranaraja, J. observed that the amendmentof 1991 has for the first time taken away the power of court ex meromotu to amend pleadings. An amendment could be allowed onlyupon an application of a party. Here Ranaraja, J. was referring.tosection 93 of the Civil Procedure Code as amended by Act, No. 9of 1991. In this case the Court of Appeal was called upon to decide itowhether the application made by the defendant after several datesof trial, would be allowed.
In the instant case the facts are different to the facts in the caseof Gunasekera v Abdul Latiff (Supra). Here the learned DistrictJudge was called upon to correct the misdescription relating to thedefendant’s name. The learned District Judge directed to amendthe caption of the plaint substituting the name of SinnaiahThangavelu for Sabapathy Thangavelu. It is an amendment con-sisting of the correction of a clerical error appearing only in the cap-tion of the pliaint. The mistake is not a mistake of the identity of the 180man but only his name.
His Lordship Jayasuriya in Jayasinghe v Gnanawathie Menike(Supra) held that the District Judge was perfectly entitled to haveeffected a correction of the misdescription in one’s name in the cap-tion of the plaint, and also held at pages 416 and 417 that theamendment effected did not fall within the category of the amend-ments contemplated in section 93 of the Civil Procedure Code. HisLordship further held that, the learned Judge has effected theamendment in the exercise of his inherent powers.
108Sri Lanka Law Reports12004] 2SriL.R
In these circumstances, I hold that there is no merit in this appli- 190cation and I accordingly, dismiss this application in revision withcosts fixed at Rs.5250/= payable by the defendant-petitioner to theplaintiff-respondent.
AMARATUNGA, J.I agree.