043-NLR-NLR-V-03-ENDORIS-v.-HAMINE.pdf
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ENDORIS ». HAM LINK.
C. R., Balctpitiya, 1,414.
Civil Procedure Code, as. 247 and 48—Date of institution of action—Return of plaint for amendment—Refection of plaint—What facts tobe specified by Judge in his order returning plaint for amendment.
Where a plaint, presented within the time prescribed for theinstitution of an action under section 247 of the Civil ProcedureCode, was returned for amendment, and was presented again dulyamended, after the period of fourteen days from the time of thefirst presentation had expired—Held, on objection, that theaction was not instituted too late.
When a Judge declines to entertain a plaint and returns it foramendment, he must make an order specifying the date when theplaint was presented, the name of the person by whom it waspresented, whether such person was the plaintiff in person or aproctor, and the fault or defect constituting the ground of thereturn ; and every such endorsement must be signed by the Judgemid filed of record.
Semble, per Bonseb, C.J.—When a plaint is rejected and a freshplaint has to be filed, the institution of the action must be datedthe day on which the new plaint is presented.
T
HE facts of the case sufficiently appear in the followingjudgment'.
1895.July 17.
Asserappa, for appellant.Seneviratne, for respondent.
17th July, 1895. Bonseb, C.J.—
This is an appeal from a decree of Mr. Woutersz, Acting Com-missioner of Requests of Balapitiya, dismissing the plaintiff’s actionwith costs, on the ground that it was not instituted within theperiod of fourteen days allowed by section 247 of the Civil Procedure
Code.
Vol. m.
12(56)29
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1896.18 appears that the plaint was dated and presented to the Court
July 17. enr the 11th February, 1890.
■JoirsBB^OkJ. The Commissioner says that owing to certain inaccuracies inthe plaint it was not entertained until the 20th February, 1895,and he considered that the latter date, being the date on whichthe plaint was presented to the Court corrected and perfectedand the date on which the Court allowed it to be filed, was thedate on which the action was instituted, and he therefore heldthe action to be out of time, and dismissed it accordingly.
It appears to me that the Commissioner was wrong in thisdecision; and that the date when an action is instituted is thedate on which the plaint was presented.
It is true that, for certain minor defects, the Court may declineto entertain the plaint, and may return it to the plaintiff foramendment, but when it is duly amended it is still the sameplaint: it still relates to the old action. It is not like a case wherethe plaint is rejected, in which event a fresh plaint altogether hasto be presented, and it might be held—though it is not necessaryto decide that point now—that the institution of the action mustdate from the presentation of the new plaint.
The case must therefore go back to be dealt with in the ordi-nary way. At the same time, the attention of the CommissionerBhould be called to the fact that the requirements of section 48 ofthe Civil Procedure Code have not been complied with. Thatsection requires a Judge, when he declines to entertain a plaintand returns it for amendment, to make an order specifying thedate when the plaint was presented, the name of the person bywhom it was presented, whether such person was the plaintiffin person or a proctor, and the fault or defect constituting theground of the return; and every such endorsement must besigned by the Judge and filed of record.
Nothing of that sort was done here. No record of any kindwas made; all that appears to have been <ione was, that theCommissioner scribbled in pencil on the plaint some words whichare now almost illegible. They look like “ return for amend-ment,” with his initials below.