060-NLR-NLR-V-24-AVVA-UMMAH-v.-CASINADER.pdf
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Present : Bertram C.J. and Porter J.
AVVA UMMAH v. CASINADEB.
7&—D. C. Batticaloa, 5,253.
Vo averment in plaint disclosing jurisdiction of Court—Plaint acceptedby oversight—Mistake pointed out by ' defendant—Return of plaintfor amendment—Rejection of plaint.
Where the plaint did not allege anything on the face of it whichgave it jurisdiction* and the Court by an oversight omitted to noticethe defect and accepted the plaint, and where the attention of theCoart is called to the point by the -defendant—
Held, that the Court ought either to reject the plaint, or to returnit to the plaintiff for amendment.
HE facts appear from the judgment.
Navaratnam, for appellant.—The plaint is defective ex facie inthat it does not indicate where the cause of action arose. This beingso, can the Court exercise jurisdiction ? Want of material parti-culars in a plaint can be cured by the attention of the Court beingdrawn to the defect. There was no motion before the Court, asstated by the judge, either to reject ’ the plaint or to dismiss theaction. The fact that the Court had already entertained the plaintdid not preclude on amendment at the Court’s discretion. TheCourt had ample power under section 93 of the Code to amend theplaint. Counsel relied on 1 N. L. B. 292.
1922,
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*923.
. September 4, 1022. Bertram C.J.—
Avva Ummah
This is an appeal against an interlocutory order of the District
«rS»w‘n»(ier Court of Batticaloa. The action was an ordinary action for the
repayment of money lent, but the plaint did not allege anythingon the face of it which gave the Court jurisdiction. AccordinglyMr. Abdul Cader, in the first instance, drew the attention of thelearned Judge to the fact that it was not stated in the plaint that thetransaction took place within the jurisdiction of the Court. Theproper procedure in such a case' is that indicated by Bonser C.J.in the case of Read v. Sameudin.1 There Chief Justice Bonserheld that when a plaint is defective in some material point, and thatappears on the face of the plaint, but by some oversight the Courthas omitted to notice the defect, then the defendant, on discoveringthe defect, may properly call the attention of the Court to the point,and then it will be the duty of the Court to act as it ought to havedone in the first instance, either to reject the plaint or to return itto the plaintiff for amendment. Mr. Abdul Cader seems consciouslyor, unconsciously to. have exactly followed this procedure. Thelearned Judge does not appear to have appreciated Mr. AbdulCader's positiou. He speaks first of something said by Mr. AbdulCader, next he refers to a motion to reject the plaint, and finallyto a motion to dismiss the plaint. It seems,. however, clear fromthe authority cited by Mr. Navaratnam that Mr. Abdul Cader'sprocedure was correct. The defect in the plaint has now beenmade good by the application of the proctor for the plaintiff,and no further action is therefore necessary. But the appellant iscertainly entitled to relief in respect'of the order casting him incosts in the Court below, and he is entitled to his costs in this Court.
The appeal, therefore, would be allowed, and the order is setaside, with costs here and In the Court below.
Porter J.—I agree.
Appeal allowed.
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1 (159-5) 7 N. L. Jt. 292.