062-NLR-NLR-V-23-NILES-v.-VELAPPA.pdf
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Present: Da Sampayo J. and Schneider A.J.NILES v. VELAPPA.
69—D. C. Colombo, 2,548*
Action by assignee in insolvency for rent—Permission of Court obtained—No averment in plaint—Objection not taken in answer orissue , but at a very late stage—Motion to amend the plaint*
Plaintiff, as assignee of-an insolvent estate, sued the defendantfor rent. There was no allegation in the plaint that the plaintiffhad obtained permission of the Court to institute the action.No objection on that ground was taken in the answer or in theissues, but at a very late stage, when the defendant was addressingthe Court, he raised the objection. Plaintiff thereupon movedto amend the plaint. The District Judge refused the application,and dismissed the action.
Held, that the dismissal was not justified“ I doubt whether the fact of permission being obtained fromCourt must be stated in the plaint ….. Under our
present system of pleadings, any omission in the plaint or answermay be supplied by raising a relevant issue at the trial, and anissue may be stated at any time before judgment.5*
rjTBE facts appear
from the judgment.
Tisseverasinghe, for plaintiff, appellant.—Section 82 of theInsolvency Ordinance applies only as between the assignee of theestate and the creditors. A defendant cannot plead in answerto the claim of an assignee that the assignee has not obtained theleave of Court to the institution of the action. The effect of theprovision is that the assignee loses his right to be paid oat of theinsolvent’s property his costs and expenses which he may haveto pay or incur in respect of such an action if he has not beforecommencing it obtained leave of Court. The assignee as such hasa locus standi to sue, and the fact that he had obtained the leave ofCourt need not be alleged in the pleadings. In this case leave ofCourt has been obtained; only that fact has not averred in theplaint. The objection comes too late when taken by his counsel in hisaddress at the close of the case. Even if the objection was good, theapplication to amend the plaint should have been allowed.
Phoebus v. Fernando,1 on which the District Judge relies, wasdecided before the Civil Procedure Code came into operation, andis no longer law.
Arulanctndam, for defendant, respondent*—Phoebus v. Fernando{supra) is in point. The words of the section are: “ With the leave
1 (1SS7)1 C.L. R.26.
1921.
21
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1221.
Nileev.
Velappa
of the District Court first obtained, but not otherwise.*9 TheOrdinance expressly takes away the right from the assignee tosue without leave of Court first obtained. Bis title must be allegedin the pleadings.
[Db Sampayo J.—It may be so ; but why did you resist theapplication to amend the pleadings by averring such leave ?] Theapplication came too late.
September 28,1921. De Sampayo J.—
This appeal should succeed. The plaintiff appellant, as assigneeof the insolvent estate of one Kaliappa Pillai, sued the defendantfor-recovery of rent due by him as tenant of a house belonging to theinsolvent. The defendant did not dispute that he owed the moneyclaimed as rent, but set up a claim in reconvention in respect ofalleged improvements made by him. The District Judge tried thecase on the issue raised by the defendant, and, after some protractedproceedings, heard counsel for the plaintiff, and when it came to thedefending counsel to address the Court, a new objection was takento the maintenance of the action, namely, that there was no allegationin the plaint that the plaintiff had obtained permission of the Courtto institute the action. It is true that the plaint did not containsuch an allegation, but, on the other hand, no objection was takeneither in the answer or by way of an issue at the trial. However,when the objection was ultimately taken, the proctor for the plaintiffmoved to amend the plaint as desired. This was opposed, and theDistrict Judge stated that he was not prepared to allow the plaintto be amended at that stage of the proceedings, and dismissed theplaintiff’s action. I think the dismissal was not justified. Not*withstanding the decision cited to the District Judge, I doubt whetherthe fact of permission being obtained from Court must be stated inthe plaint. However, that is a matter which ought to be rectifiedat any moment before the case is finally concluded. Under ourpresent system of pleadings, any omission in the plaint or answermay be supplied by raising a relevant issue at the trial, and an issuemay be stated at any time before judgment. I think the DistrictJudge should have followed this course, as it was undoubtedlyjust in all respects. It appears that, as a matter of fact, the plaintiffas assignee had obtained permission of the Court to institute thisaction.
In the circumstances, I would set aside the judgment appealedfrom, and send the case back to be disposed of in due course, theplaint being amended, if necessary, or a proper issue stated inregard to the matter in dispute.
The plaintiff, I think, is entitled to the costs of the appeal.
Schneider A.J.—I agree.
Set aside.