017-NLR-NLR-V-42-THILAKAVATHYPILLAI-v.-SIVAPLAM-et-al.pdf
KEUNEMAN J.—Thilakavathypillai v. Sivapalam.
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1940Present: Soertsz and Keuneman JJ.
THILAKAVATHYPILLAI v. SIVAPALAM et al.
174—D. C. (Inty.) Trincomalee, 2,559.
Misjoinder of'parties—Joint promissory note—Application to amend plaint bydeletion of heirs of deceased maker.
Where the plaintiffs, who sued on a joint promissory1, note the heirs ofa deceased maker and the surviving maker of the note, moved on- thedate of trial to amend the plaint by deleting the claim against the heirsof the deceased maker,—
Held, that the amendment should be allowed subject to an appropriateorder for costs.
^^PPEAL from an order of the District Judge of Trincomalee.
N. E. Weerasooria, K.C. (with him E. B. Wikremanayake), forplaintiffs, appellants.
A. Rajapakse (with him M. M. I. Kariapper), for defendants,respondents.
Cur. adv. vult.
March 19, 1940. Keuneman J.—
A short point arises in this appeal. Plaintiffs sued on a joint promissorynote the first defendant and the second to the sixth defendants, who were,with the first defendant, the heirs of Subramaniam, deceased. The firstdefendant and Subramaniam were the makers of the note. On November16, 1939, the trial date, proctor for the plaintiffs appears to have appre-ciated the fact that his plaint was bad, because of the misjoinder of theheirs of the deceased maker'with the surviving maker of the note. Thishad been decided in Annamalai Chetty v. Menika *. Proctor for plaintiffsmoved to amend his plaint by deleting the claim against the second tothe sixth defendants. The learned District Judge refused to allow thisamendment, on the ground that the amendment would alter the wholescope of the action, and that the plaintiffs had enough time to make theapplication ea.rlier. Thereafter the action was dismissed in view of the
judgment of the Supreme Court already referred to.
1 (I860) 32 L. J. 210 (Prob.).
• 20 N. L. B. 407.
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KETJNEMAN J.—Thilakavathypillai v. Sivapalam.
On appeal, Counsel for the appellants argues that the amendmentshould have been allowed. I think the first ground mentioned by theDistrict Judge has been stated far too widely. It is in the very nature ofamendments that they alter the scope of the action. I understand theposition taken up by respondents’ Counsel to be that by this amendmenthe will be deprived of a defence to the action which he would otherwisehave. I think this is correct, but I do not see why a plaintiff who hasmisconceived a portion of his claim should not abandon such portion, andso preserve to himself the legal rights which he actually has.
As regards the point that this claim for amendment is made too late,I think, in this case, that any prejudice to the defendants can beadequately compensated by an appropriate order as to costs.
I accordingly set aside the order refusing the amendment and the orderdismissing the plaintiff’s action as against the first defendant, and allowthe amendment proposed by the plaintiff. As regards costs, the plaintiffswill pay to the first defendant the costs of the trial date and any costswhich may be incurred by the first defendant in amending his answer inconsequence of the amendment of the plaint.
The plaintiff’s action against the second to the sixth defendants willremain dismissed with costs. There will be no costs of appeal. The casewill go back for further proceedings in due. course.
Soertsz J.—I agree.
Appeal allowed.