092-NLR-NLR-V-55-C.-A.-ODIRIS-SILVA-SONS-LTD.-Appellant-and-P.-JAYAWARDENE-Respondent.pdf
GTJNASEKARA J.—Odiris Silva & Sons, Ltd. v. Jayawardene
335
1953Present: Gunasekara J. and K. D. de Silva 3.C. A. ODUMS SILVA & SONS, LTD., Appellant, and P. JAYA-WARDENE, Respondent.
S. C. 234—D. G. Galle, X 876.
Amendment of plaint—Misdescription of defendant—Substitution of properdefendant—Prescription.
Where a plaint mistakenly named the defendant as “ Odiris Silva & Sons”when, in fact, the defendant was Odiris Silva & Sons, .Ltd., and the Courtallowed the plaintiff to amend the caption of the plaint—
.Held, that, for the purpose of reckoning the period of prescription, theaction against the company must he taken to have been instituted on the dateof the original plaint and not upon the amendment of the caption of the plaint.
A.PPff,ATi from a judgment of the District Court, Galle.
H. W. J ay ewer dene, with D. R. P. GoonetiUeke, for the defendantappellant.
D. Atulathmudali, with E. L. P. Mendis, for the plaintiff respondent.
Cur. adv. vult.
November 10, 1953. Gttstasekara J.—
This is an appeal from a judgment of the District Court of Galledirecting the defendant-appellant, a limited company, to pay to theplaintiff-respondent a sum of Rs. 1,272 as the price of two consignmentsof empty oil drums which he alleged he had sold and delivered to thecompany on the 19th and 22nd July, 1948.
The plaintiff had consigned the drums by railway to “ C. A. OdirisSilva and Sons ” of Matara, and the defendant company’s manager,Dharmasena, had taken delivery of them, signing the railway consign-ment notes on behalf of the company in the place intended for theconsignee’s signature and giving the company’s address as “ Oil Mills,Matara ”. According to the plaintiff’s evidence these consignmentshad been made in pursuance of an agreement between him and Dharma-sena, but the latter, who was called as a witness for the defendant,denied that there had been such an agreement. He admitted that theconsignment notes had been signed by him on behalf of the defendantcompany, but he stated that they had been brought to him by oneMartin Silva, who had been supplying the company with drums, and thathe had bought for the company from Martin Silva some of the drumsincluded in the consignments in question and rejected the rest. Thelearned District Judge accepted the plaintiff’s evidence and disbelievedDharmasena’s denial of the agreement alleged by the plaintiff, and thereappears to be no sufficient ground for disturbing this finding.
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GXJNASEKAJ3A «X.—Odiris Silva <& Sons, Ltd. v. Jayawardene
The learned judge also rejected a plea of prescription that was set upby the defendant. The plaint had been filed on the 13th July, 1949,within the period of limitation, but it named as the defendant “ C. A.Odiris Silva and Sons, Oil Mills, Matara,” and not “ C. A! Odiris Silvaand Sons, Limited,” which is the name of the defendant company. Onthe 23rd March, 1950, after the expiry of the period of limitation, thecaption of the plaint was amended by insertion of the word “ Limited ”immediately after “ C. A. Odiris Silva and Sons ”. It is contended forthe defendant company that the action against the company must betaken to have been instituted only upon the amendment of the captionof the plaint and that the plea of prescription should therefore have beenupheld.
The learned judge’s rejection of the plea is based upon a finding thatit was the defendant company, on whose behalf its manager had boughtthe drums from the plaintiff, that the plaintiff intended to sue, thoughthe plaint had given the defendant a wrong description. This is afinding of fact which, it seeins to me, it was open to the learned judgeto reach upon the evidence, and in this view of the facts no objection canbe taken to the order allowing the plaintiff to amend the caption of theplaint. In similar circumstances, where it appeared'that a plaintiff hadintended to sue an Urban District Council but had filed a plaint mis-takenly naming the chairman of the Council as the defendant, it washeld that the plaintiff should be allowed to amend the caption : Velu-pillai v. The Chairman, Urban District Council1. The effect of theamendment in the present case was merely a correction of an error in thename by which the present defendant was described and was not thesubstitution of that defendant for another. I am therefore unable toaccept the contention that the action against the defendant companymust be taken to have been instituted only on the 23rd March, 1950.
The appeal must be dismissed with costs.
K. D. be Silva J.—I agree.
Appeal dismissed.
(1936) 39 N. L. R. 464.