131-NLR-NLR-V-15-WICKREMESOORIYA-v.-ABEYWARDENE.pdf
( 472 )
1M2.
Present : Middleton J.
WICKREMESOORIYA v. ABEYWARDENE:
C. R. Majtara, 6,427.
Restitutio in integrum—Omission to claim interest by an oversight-^Slight loss—Remedy not available.
By an oversight the plaint in an action on a promissory noteaverred that the note was dated December 20, 1910, whereas in{act it was dated December 20, 1909. Decree was entered bydefault, and the plaintiff lost one year’s interest, Rs. 90. Theplaintiff applied to the Supreme Court for relief by way of restitutioin integrum.
Held, that the plaintiff was not entitled to the relief sought for.
I
N this case the plaintiff as administrator of the estate of a payeeof a note for Rs. 150, payable with interest at 60 per cent,
sued the maker on the note. By an oversight on the part of theproctor the plaint averred that the note was dated December 20,1910, whereas in fact it was dated December 20, 1909. Decreewas entered by default against the defendant; and the plaintiff lostinterest for one year, Rs. 90.
Plaintiff applied to the Commissioner of Requests for amendmentof the decree. He declined to interfere.
i L. R. 6 Q. B. D. 206 and 207.
C 473 )
The plaintiff then applied for relief to the Supreme Court by wayof restitutio in integrum.
A. St. V. Jayewardene, for the petitioner.—The plaintiff wassuing as administrator. He has to account for the money due onthe note to the Court.. The insertion of the wrong date was due toa mistake on the part of the proctor. The omission to claim interestfor one year was not intentional. Where a decree has been wronglyentered by mistake, relief is granted to the party aggrieved by wayof restitutio in integrum. (Sinnatamby v. NaUatamby.1)
1912.
Wiclcreme-eooriya v.AbeyUmrdene
B alasing ham, for the respondent.—No case has been made outfor relief by way of restitutio in integrum. The omission to claiminterest was a mistake on the part of the proctor. Where a proctorfailed to see that the terms of a settlement were properly entered,it. was held that this remedy was not open to the party aggrieved bythe wrong entry. (Abeyesekera v. Harmanis Appu et al.“)
This remedy is not granted unless the damage suffered isconsiderable.See 14 N. L. R. 356. Omission to include any
portion of toe claim in an action bars the plaintiff from suing for itsubsequently (Civil Procedure Code, section 34). If the plaintiffcould apply for restitutio in integrum in such a case as this, theprovisions of section 34 would be useless. Counsel referred toSwaris v. Cooray.3
A. St. V. Jayewardene, in reply.
Cur. adv. vult.
January 12, 1912. Middleton J.—
By an oversight the plaint in this action on a promissory noteaverred that the note was dated December 20, 1910, whereas in factit was dated December 20, 1909. Judgment went by default and theerror was embodied in the decree, thereby depriving the plaintiff, byhis own laches or that of his proctor, of the right to recover aboutBs. 90 in addition to the sum ordered to be paid.
Application was made to the Commissioner of Bequests fo?amendment of toe decree, but he very properly declined to do so.
The plaintiff now almost ad misericordiam, on the ground of hisbeing an administrator, applies to this Court for relief by way ofrestitutio in integrum.
As I told the learned counsel for the appellant on toe conclusionof the argument, I do not think that this is a case in which theremedy sought for should be allowed. The position of the plaintiffin this case has been brought about solely by his own or his proctor’snegligence. It is not a question of doubt as has occurred in somecases whether the Court was responsible for the error; it is clear thatit was not. The loss is a pecuniary one, not "a very heavy one, and
« (1903) 7 K. L. R. 139.2 (1911) 14 N. L. R. 353.
(1907) 4 Bal. 153.
1812.
JiDDLETON
J.
Wickrtme-tooriya w.Apeywardene
susceptible of accurate money compensation, and there is anotherremedy open to the plaintiff; if he has not, he has himself entirelyto thank (Dodwell Carlisle & Go. v. Rawter l) for the position in whichhe now is.
If proceedings for restitutio in integrum, were granted in such acase as this, it might well be argued that they should be allowed toremedy a failure by a plaintiff under section 34 of the Civil ProcedureCode to put forward the whole of his claim in an action begun ordecided.
In my opinion the application must be refused with costs.
Application refused.