129-NLR-NLR-V-39-VELLUPILLAI-v.-THE-CHAIRMAN-,-URBAN-DISTRICT-COUNCIL.pdf
464 ABRAHAMS C.J.—Vellupillai v. The Chairman, Urban District Council.
1936Present: Abrahams C.J. and Soertsz AJ.
VELLUPILLAI v. THE CHAIRMAN, URBANDISTRICT COUNCIL.56—D. 'C. (Inty.) Jaffna, 7,227.
Action—"Wrong person named as defendant—Substitution of right defendant—
Amendment of caption.
*
Where the plaintiff, who had a cause of action against an UrbanDistrict Council, by a mistake named the Chairman of the Council as thedefendant in the plaint and where, at the trial, an issue was raised thatthe action had not been properly constituted,—
Held, that the plaintiff should be allowed to amend the caption bysubstituting the Council in place of the Chairman.
A PPEAL from an order of the District Judge of Jaffna.
S. Subramaniam for plaintiff, appellant.
N. Nadarajah (with him B. Kumardkulasinghe), for defendant, re-spondent.
Cur. adv. vult.
September 28, 1936. Abrahams C.J.—
In this case the plaintiff had a cause of action against the Urban DistrictCouncil, Jaffna. He or I should say his proctor seems to have been underthe impression that he could not sue the Council direct but would haveto do so t>y naming the Chairman of the Council :as the defendant. Undersection 10 of the Local Government Ordinance an Urban District Councilcan be sued in its own name. There is no doubt by the wording of theplaint itself that the plaintiff was under the, impression that his cause ofaction was against the Urban District Council itself for he continuallymentions the defendant Council and prays for judgment against the
ABRAHAMS C. J.—Vellupillai v. The Chairman t Urban District Council. 465
defendant Council for Rs. 10,000. The answer of the defendant alsoappears to me to indicate that he too knew very well that the plaintiffintended to bring his action against the Council and not against himpersonally, and although in paragraph 9, he denies that the plaintiff hasany cause of action to sue the defendant, that seems to me to be distinctlyambiguous and does not create the impression that he meant to conveythat he himself was not liable to be sued.
When the parties came to trial the preliminary issue was raised onbehalf of the defendant that the action against the Chairman was notproperly instituted. The learned District Judge allowed that issue.The proctor for the plaintiff moved to amend the caption. The learnedDistrict Judge said that the caption if amended would not remedy theposition, which could only be remedied by substituting or adding adifferent party, who would then be entitled to plead all defences, includingprescription since at that stage time would have run against the plaintiffso as to constitute the defence of prescription by the Council. Thelearned District Judge refused to grant any time for the purpose ofsubstituting a different party, proceeded to trial and gave judgment bydismissing the plaintiff’s action with costs.
There is no doubt in my mind that the plaintiff intended to sue theUrban District Council and this case bears a very close resemblance tothe case of Lord Bolinbroke v. Townsend where an amendment of thisnature was allowed. There is a slight distinction between the factsbecause in that case the amendment was applied for before the partieswent to trial but, in my opinion, that is a distinction without a difference.
It is argued by Mr. Nadarajah for the respondent that if we allow thisamendment we should be in fact depriving the defendant Council, as itwould then be, of the defence of prescription and we have had cited to usthe case of Weldon v. Neal*, where Lord Esher M.R. held that if anamendment were allowed in the pleadings the defendant’s right to pleadthe Statute of Limitations would be taken away, which would have beenin the opinion of the learned Master of the Rolls, improper and unjust.That case is different from this in that it was sought to amend the pleadingsby instituting a fresh cause of action which was outside the period oflimitation.
I think that if we do not allow the amendment in this case we should bedoing a very grave injustice to the plaintiff. It would appear as if theshortcomings of his legal adviser, the peculiarities of law and procedure,and the congestion in the Courts have all combined to deprive him of hiscause of action and I for one refuse to be a party to such an outrage uponjustice. This is a Court of Justice, it is not an Academy of Law.
I would allow the amendment, but obviously the plaintiff should bemulcted in costs. He will pay the defendant the costs of the day’s hearingand also the costs of the proxy and answer filed by the defendant. Wemake no order as to costs of the appeal.
Soertsz A.J.—I agree.
Appeal allowed.
1 29 haw Times 430.
* 19 Q. B. D. 394.