063-NLR-NLR-V-39-SILVA-v.-LOW-COUNTRY-PRODUCTS-ASSOCIATION.pdf
228
Silva v. Low-Country Products Association.
1936Present': Abrahams C.J.
SILVA v. LOW-COUNTRY PRODUCTS ASSOCIATION.
56—C. R. Colombo, 20,041.
Action against unincorporated association—Application to serve summons onSecretary as representative—Date of action—Prescription—Civil Pro-cedure Code, s. 16.
Where an action was instituted against an unincorporated associationon March 15, 1936, and the plaintiff moved on May 20, 1936, to serve•summons on the Secretary- of the Association on behalf of the membersand to give notice of action to all parties by advertisement in a publicnewspaper.
field, the action may be deemed to have been instituted on May 20,1936.
^ PPEAL from an order of the Commissioner of Requests, Colombo.
Colvin R. de Silva, for plaintiff, appellant.
No appearance for defendant, respondent.
Cur. adv. vult.
ABRAHAMS C.J.—Silva v. Low-Country Products Association. 229-
August 5, 1936. Abrahams C.J.—
This is an appeal against the judgment of the Commissioner of Requestswho dismissed the action of the plaintiff on the ground' that it wasprescribed. The respondent is not represented.
These are the facts. The plaintiff-appellant who was carrying onbusiness under the name of “ Luxman Press ” supplied goods to the Low-Country Products Association which is a body composed of a number ofpersons. It is unincorporated. Under the impression that the Associa-tion was a body corporate, the plaintiff-appellant filed a plaint in whichhe described the defendant as a duly incorporated Company having itsregistered office at No. 54, Keyzer street, Colombo. The plaint was filedon March 13, 1936. On April 7, the Commissioner of Requests noted inthe journal that summons was served by delivery to Mr. Wace de Niese,who is presumably the Secretary of the Association, and the note goes on,
" The Low-Country Products Association is not a legal person. Itconsists of several members. The plaintiff should make applicationunder section 16, C. P. C., to have one or more person or persons appointedto represent the Association.” The facts are correctly stated and thedirection of the Judge was a proper one in view of the section abovequoted, which reads as follows : —
“ 16. Where there are numerous parties having a common interestin bringing or defending an action, one or more of such parties may,with the permission of the Court, sue or be sued, or may defend in suchan action on behalf of all parties so interested. But the Court shall insuch case give, at the expense of the party applying so to sue or defend,notice of the institution of the action to all such parties, either bypersonal service or (if from the number of parties or any other causesuch service is not reasonably practicable), then by public advertise-ment, as the Court in each case may direct.”
On May 20, 1936, the journal states that the plaintiff’s proctor movedto serve summons on the Secretary of the Association as and on behalf of 'the several members of the said Association. He also moved that he beallowed to give notice of this action to all such parties by advertising inthe “'Ceylon Independent ”. The Commissioner of Requests directedthat the usual notice should be inserted in the “ Ceylon Independent ”,returnable on June 8.v On July 2 the journal entry states that the 'proctor for the plaintiff moved to issue the usual notice in the CeylonIndependent and this was allowed for July 20. It is not stated in thejournal that the directions given on May 20 were complied with, and onJune 8 there is an entry, “Call case, No appearance. No order”. Thisis something which I am unable to understand.
Presumably in compliance with the directions of July 2 a notice wasissued on the 10th of that month to the effect that in the case of BanielSilva v. Wace de Niese, the proposed representative of the Low-CountryProducts Association, Baniel Silva had applied to the Court of Requeststo appoint the above-named Wace de Niese as representative of the saidLow-Country Products Association, in an action for the recovery ofRs. 123.38, and that the application would be granted unless sufficientcause is shown to the contrary on or before July 20, 1936. On July 20
230 ABRAHAMS C.J.—Silva v. Low-Country Products Association.
the case was called and summons was ordered for .September 9. Summonswas served on Mr. Waee de Niese on September 9. The case was finallytried on December 1. At the trial the following were the issues : —
Is the action properly constituted ?
If not, can the plaintiff maintain this action ?
Is the plaintiff’s claim, if any, prescribed as when Mr. Wace de
Niese was appointed on July 20 ?
The advocate for the plaintiff admitted that if the action was notconsidered to be filed until July 20, then the claim must be prescribed.
The learned Commissioner of Requests said the plea of prescriptionmust prevail. The action must be taken to have been brought againstthe Association properly constituted on July 20 when Mr. Wace de Niesewas appointed the representative of the Association and made a defendant,and that until such date the action was, not properly constituted andtherefore could not be said to have been filed against the defendant. Hedismissed the' action with costs. Leave to appeal was granted.
It is now argued on behalf of the appellant that this judgment waswrong because the real test is when was the action instituted, as section 16of the Civil Procedure Code required that notice of the institution of theaction must be given, not notice of the intended institution of the action.Now there is ample authority that an action must be deemed to havebeen instituted on the date that the plaint is handed in. See for instanceMango Nona v. Menis Appu ’. 'On May 20, as I have said, it was movedon behalf of the plaintiff that summons should be served on the Secretaryof the Association, and the usual notice to interested parties was directedto be issued by the Court. Now at that point the proper course for theplaintiff would have been to get the plaint amended, but it must not bepressed against him that he did not comply with this technicality. In theCourt of Requests one must consider the intention of the parties, and it isobvious that at that stage the plaintiff’s. proctor was intending to complywith section 16 and I think he must be taken to have done so, and theplaintiff ought to be regarded as being in the same position as he wouldhave been if the plaint had been amended and if the action had beenstyled, as being instituted against Mr. Wace de Niese as' the proposedrepresentative of the Low-Country Products Association.
I am of the opinion that an action can be said to be properly institutedagainst one member of an incorporated body in a representative capacityif the -plaint is so drawn and filed, and it only remains to get thepermission of the Court to sue him, that is to say, to proceed with theaction against him. If that view is not correct, unfortunate consequencesmight follow for which a plaintiff could in no way be held responsible.There is no statutory obligation on the Court to issue notice of the insti-tution of the action within any given period. There is certainly nostatutory obligation on the newspapers to which the notice is sent topublish it within any given period, and, finally, there is no statutoryobligation on the part of the Court to order that cause should be shownwithin any given period against the application to be allowed to sue. Itis manifest that through delay in the stages contemplated above, timemight run fatally against a plaintiff. No authority in our Courts has
> 31 s. L. R. 21S.231
Murugappah Chettiar v. Ramanathan Chettiar.
been cited to me in aid of the proposition that an action has been institu-ted against a person in a representative capacity within the meaning ofsection 16 of the Civil Procedure Code when the plaint is filed against himand not when permission is given to sue him. I have been unable todiscover for myself any such local authority. However, the case ofFernandez v. Rodrigues decided upon section 30 of the Indian CivilProcedure Code of 1882, the wording of which is the same as section 16of the Ceylon Civil Procedure Code, is directly in point. In that case aFull Bench of the Bombay High Court decided that the permission ofthe Court required by that section may be given subsequently to filingthe suit.
It follows then that the action in this case was instituted at the lateston May 20, 1936. Counsel for the appellant draws my attention to thecase of VehipiUai v. The Chairman, Urban District Council, Jaffna*, andsubmits that on the strength of that case the action was really properlyinstituted on March 13, the date when the plaint was filed because although .the defendant was said .to be the Low-Country Products Association, anincorporated company, it was the intention of the plaintiff to sue theAssociation whether it was a legal person or a body of individuals, and theconstructive amendment of the plaint on May 20 related back to thedate of the original plaint—see Lucihamy v. Hamidu *.
In view of what I have-said above, that is to say, that the action couldbe taken to have been instituted on May 20 which is sufficient for theplaintiff’s purpose, it is not necessary for me to decide whether .thissubmission is founded on a correct inference or on a mere conjecture.
The appeal is allowed with costs and the case is remitted to the Courtof Requests to be disposed of on its merits.
Appeal allowed.