070-NLR-NLR-V-18-VELANTHAN-CHETTY-v.-SATHUKA-LEBBE.pdf
( 252 )
•1915.
Present: Wood Benton G.J. and De Sampayo A.J.
YELANTHAN CHETTY *. SATHUKA LEBBE.
20—^D* 0• Colombo, 40,106,
4
Action by toay of summary procedure on note for Rs. 10,000—Endorsementon summons wrongly stated to be Rs, lt000—Is irregularity fatalto plaintiff's right to proceed by toay of summary procedure t
In an action by way of summary procedure on 'a note forRs. 10,000, in the copy of the note endorsed on the summons theamount appeared both in words and figures as Rs. 1,000.
Held, that the mistake was not fatal to plaintiff's right to proceed on thenote by way of summary procedure.. '
rjpHE facts are set out in the judgment.
P. M. de Saram, for appellant.—The summons in this case wasnot' in accordance with the strict requirements of section 703 of theCivil Procedure Code. That section enacts that the summons shallbe in the form No. 19 contained in the second schedule to the Code.The form requires that the instrument sued on should be copiedout, and where it is a negotiable instrument and carries endorsements,that the endorsements should also be copied out. In the presentcase the action is on a negotiable instrument purporting to be apromissory note for Bs. 10,000, but the instrument copied out inthe summons i6 a promissory note for Bs. 1,000 only. The pro-cedure under chapter LIII. of the Code being a special procedurefor the benefit of persons holding promissory notes, &c.f and whenthat .summary procedure is resorted to, the plaintiff should strictlyfollow the requirements of the section. The summons, therefore,not being in the form required by the Code, it is a fatal irregularity,and entitles the defendant to come in and defend unconditionally.
February 11, 1915. Wood Benton C.J.—
This is an appeal from an order made by the learned DistrictJudge of Colombo in an action by the plaintiff against the defendant,who is the appellant, on a promissory note for Bs. 10,000, that theaction, which was one of summary procedure, should be relegatedto the ordinary procedure. The ground of the application is thatwhereas the promissory note sued on was for a sum of Bs. 10,000.,in the copy of the note endorsed on the summons under section 703of the Civil Procedure Code the amount appears, both in words andin figures, as Bs. 1,000. The appellant filed an affidavit in supportof his application, hi which he called attention to this irregularity.
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But in that affidavit he does not state that he was in any way^5.
misled by the error, nor does he even say what is his defence to thewooi> ‘
action. The question, therefore, arises whether we are compelled Bbhton C.Jby law to treat a mistake, such as we have here to do with, as being vdattihanfatal to the plaintiff's right to proceed on the promissory note by Chatty n.way of summary procedure. There has been no error in the ^222*procedure itself. The summons required by section 703 of the Codehas been taken out, and it is not contested that it was duly saved.
But it is contended that the effect of section 703 is .to render theuse of toe summons referred to in that section, and appearing asform No. 19 in toe Schedule to toe Code, imperative. The wordsin toe form that deal with toe copy of toe instrument sued on areto be found in a note in italics at toe' end of the form itself. Theyare in these words,:“ Here copy the instrument sued on, and
where it is a negotiable instrument and carries endorsements, withtoe endorsements. ” The construction of those words came beforeSir Alfred Lascelles and myself in 20—D. C. (Intv.) Colombo,
No. 33,475.1 The application was identical. It was based on twogrounds: in toe first place, that toe affidavit filed by the plaintiffdid not state in terms that the sum claimed in toe action was justlydue, and in toe next place, that there had been a failure on his pareto copy an endorsement on toe instrument on the back of thesummons. With* the first of these grounds we are not here concerned.
But toe second is directly applicable to toe present case. It raisedthe question whether a mistake by inadvertence, for aught thatappeared to toe contrary, in preparing the copy which the formrequires was fatal to toe whole proceedings, and constituted areason for relegating the plaintiff to a regular action. “ There isnothing/' said Sir Alfred Lascelles, “ to show that the direction attoe foot of. toe form is so imperative that failure to comply with itvitiates the whole of .the procedure. There can be ho misunder-standing as to toe nature of the claim, because in the summons itis clearly stated that the claim is made by the plaintiff as the endorserand payee of the note. ” It seems .to me that, mutatis mutandis, thereasoning embodied in the passage which I have just cited governstoe present case. The object of toe requirement of section 703 andof the form itself is to make toe defendant clearly to understandthe nature of the claim that is made against him, so that he maybe in a position to make an effective appearance for leave to defend.
In toe present case, all the necessary particulars, with toe singleexception of a mistake in the amount of the note, are given in toecopy endorsed on the back of the summons. I do not think thatthe defendant could have been under any misapprehension as towhat toe claim against him was. The correct amount, with toeaddition of toe interest added to the principal, is set out in toesummons itself. The appeal must, I think, in substance fail. At
i 3. C. Min,, March 4, 1912.
( 254 )
1915.
Woo.)
BssToar C.J.
Vdanth<tnChetty v.SathukaJJbbe
the same time it may be that the defendant did not put forwardbis defence in the District Court case, but was relying on the strengthof hid legal objection. The proper order for us to make is to thesame effect as an order made by Sir Alfred Lascelles and myself inthe case with which I have just dealt, although with some variationin points of detail. The present appeal will be dismissed, althoughwithout costs, as it is ex parte. If within one week from the date ofthe receipt of the record in the District Court the appellant shall;appear and satisfy the District Judge that he has a good defence tothe plaintiff's action, the judgment which has already been givenin favour of the plaintiff in the District Court will be set aside, andthe appellant will have leave to appear and defend on such terms asthe District Judge may think right. If the defendant is unable tosatisfy the District Judge that be has a good defenee to the plaintiff'saction, the judgment now under appeal will stand affirmed.
Dk Sampavo A.J.—I agree.
Varied
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