SHAMMARI v. PREMIER AIRLINE AGENCIES (PVT) LTD.

020-SLLR-SLLR-1998-V-2-SHAMMARI-v.-PREMIER-AIRLINE-AGENCIES-PVT-LTD..pdf


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SHAMMARI
V.PREMIER AIRLINE AGENCIES (PVT) LTD.
COURT OF APPEALISMAIL, J„ P/CAWEERASURIYA, J.
A NO. 428/96
C COLOMBO NO. 15471/MRJULY 20, 1998
Civil Procedure Code s. 65 and s. 93 (2) – Amendment of caption – Misnomer- Laches
The plaintiff-respondent instituted action against the defendant-petitioner as agentand Country Manager for Saudi Arabian Airlines. The defendant-petitioner filedanswer stating among other things that he was only an employee. The plaintiff-respondent thereafter sought to amend the caption of the plaint by naming SaudiArabian Airlines Corporation (S.A.A.C) as the defendant. This application wasallowed by the District Court.
On Appeal
Held: (i) It is manifest that except in one paragraph, the defendant is referredto as a corporate body and the reliefs prayed for were based hanthe accrual of a cause of action against S.A.A.C.
There could have been no doubt in the mind of the defendant whenhe was served with summons that it was S.A.A.C that the plaintiffintended to sue and that he had been named wrongly as thedefendant.
CA
Shammari v. Premier Airline Agencies (Pvt) Ltd.
163
It is apparent that naming T. K. A. I. Shammari as the defendantin the caption was a mistake.
Question of laches cannot be determined only by considering thenumber of trial dates or the period of time that had elapsed, delayper se does not amount to laches and the circumstances of theparticular case have to be taken into account.
Held further:
Having made order to accept the amended plaint in which
S.A.A.C was named as the defendant, the District Judge had erredin making an order requiring T. K. A. I. Shammari to amend hisanswer.
APPLICATION in revision from the order of the District Court of Colombo.
Cases referred to:
Don Alwis v. Village Committee of Ampitiya – 54 N..LR 225.
Bank of Ceylon v. Vellaiyan Ramasamy -1986 1 C.A.L.R 481.
Velupillai v. The Chairman, Urban Development Council – 39 N.L.R 464:
C. A. Odiris Silva & Sons Ltd. v. P. Jayawardena – 55 N.LR 335.
Davis v. Elsby Brothers Ltd. – 1960 3 AER 472.
Lulu Balakumar v. Balasingham Balakumar SC 125/94 – SCM 11.9.95.
British Ceylon Corporation v. Lionel Edwards Ltd. – 32 N.LR 143.
Nihal Fernando for defendant-petitioner.
Geoffrey Alagaratnam with M. Adamaly for plaintiff-respondent.
Cur. adv. vult.
September 21, 1998
WEERASURIYA, J.
This is an application seeking to revise the order of the District Judgeof Colombo, dated 14.06.1996 allowing the amended plaint filed bythe plaintiff-respondent. The facts as set out by the defendant-petitioner are briefly as follows:
The plaintiff-respondent instituted action against the defendant-petitioner, in the District Court of Colombo, as Agent and CountryManager for Saudi Arabian Airlines praying inter alia for judgment ina sum of Rs. 2,363,310/- with interest. The defendant-petitioner filedanswer averring inter alia, that the plaintiff's action was misconceived
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in law and that the plaint did not disclose a cause of action againsthim and that he was only an employee of the Saudi Arabian Airlinesas Agent and Country Manager in Sri Lanka. The case was takenup for trial on 25.04.1995 and postponed for 06.05.1995. In themeantime, on 23.05.1995 plaintiff-respondent moved to amend thecaption of the plaint by naming Saudi Arabian Airlines Corporationas the defendant on the ground that the defendant-petitioner in hisanswer had pleaded that he was an employee of Saudi ArabianAirlines. On this application, the defendant-petitioner filed objectionson 07.09.1995 and learned District Judge by her order dated 19.06.1996,allowed the application to amend the caption.
At the hearing of this application learned counsel for the petitionersubmitted the following matters:
that the caption of the plaint could be amended onlyto correct a mistake in the name of the plaintiff or defendantand that it was not open to the plaintiff to substitute a completelydifferent person in place of the defendant;
that the plaintiff-respondent was not entitled to amendthe plaint in terms of section 93 (2) of the Civil Procedure Codeparticularly in that he was guilty of laches.
It is common ground that the plaintiff-respondent by plaint dated23.09.94, instituted action against T. K. A. I. Shammari, CountryManager and Agent for Saudi Arabian Airlines. However, paragraphs2 of the plaint referred to the defendant as a body corporate whocould sue and be sued in its own name that its Country Managerwas T. K. Shammari. Nevertheless, paragraph 4 of the plaint disclosedthat the defendant resided within the jurisdiction of the District Courtof Colombo.
It is manifest that other than this paragraph, all other paragraphsreferred to the defendant as a corporate body and the reliefs prayedfor were based on the accrual of a cause of action against SaudiArabian Airlines. The motion dated 25.05.1995 sought an amendmentof the caption to include the name of Saudi Arabian Airlines Corpo-ration as the defendant C/o T. K. A. I. Shammari, its Country Managerand Agent.
CA Shammari v. Premier Airline Agencies (Pvt) Ltd. (Weerasuriya, J.)165
Learned counsel for the defendant-petitioner submitted that in thecase of Don Alwis v. Village Committee of Hiripitiya(1> it was held that,where the plaintiff had instituted action against a wrong party as thedefendant, the plaint cannot be subsequently amended so as to havethe proper person added as a defendant and that the proper coursefor the plaintiff was to drop the action which had been wronglyinstituted and commence a new action against the proper person whoshould have been made the defendant.
Learned counsel for the plaintiff-respondent cited the case of TheBank of Ceylon v. Vellaiyan Ramasamy® where it was held that,a mistake could be corrected where the mistake was in the name,description or designation of the defendant which does not misleadthe parties on the question of identity of the person intended to besued.
It is to be observed that in the case of Don Alwis v. VillageCommittee of Hiripitiya (Supra) the plaintiff Village Committee hadinstituted action alleging that Don Alwis was holding a fair within thevillage area of Hiripitiya in violation of the Committee's by-laws andof a right that it claimed to regulate the holding of fairs and prayedfor an injunction restraining him from holding a fair within that areawithout a licence from the Chairman of Village Committee and fordamages. Subsequently, the plaintiff moved to amend the plaint bythe addition of another person as a party defendant along with severalaverments based on the averments in the answer of the defendant.The proposed amendment sought to include the averment that thefair was being held by the 1st defendant or the 2nd defendant orby both of them. Thus, it would be seen that addition of a new partydefendant was necessitated due to the doubt created as to the personagainst whom a cause of action had accrued to the Village Committee.
In the case of The Bank of Ceylon v. Vellaiyan Ramasamy (Supra)the plaintiff instituted action against the Manager, Bank of Ceylon,Agriculture Service Centre, Kilinochchi, for whom proxy was filed byMr. Mahesan which was later revoked and another Attorney-at-lawfiled a proxy for the Bank of Ceylon Central Office, Colombo, whichwas accepted by Court and it was given time to file answer. Therewas no doubt on a reading of the plaint that the plaintiff intendedto sue the Bank of Ceylon for the recovery of Rs. 25,000/- whichhe alleged, had been deposited in his savings account. Further, the
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conduct of the Manager in revoking his prox and allowing the Bankof Ceylon to come into the case showed clearly fljat afction wasintended against the Bank of Ceylon and not against the Managerpersonally. The description given in the plaint left no one in doubtthat, the plaintiff intended to sue Bank of Ceylon and not its Managerin his personal capacity. It was a clear case of a misdescription ofthe defendant in the caption of the plaint. This process could bedescribed as a correction of a misnomer, since in all the circumstancesof the case, there could have been no doubt who it was that theplaintiff intended to sue.
In the case of Vellupillai v. The Chairman, Urban District CounciP>where the plaintiff had a cause of action against the Urban DistrictCouncil and by a mistake named the Chairman of the Council as thedefendant in the plaint and at the trial where an issue was raisedthat the action had not been properly instituted, it was held that the .plaintiff should be allowed to amend the caption by substituting theCouncil in place of the Chairman. In this case, there was no doubtthat the plaintiff intended to sue the Urban District Council and thewording of the plaint itself was to the effect that the cause of actionwas against the Urban District Council.
In the case of C. A. Odiris Silva and Sons Ltd. v. P. Jayawardene,4>where a plaint mistakenly named the defendant as "Odiris Silva andSons" when, in fact, defendant was Odiris Silva and Sons Ltd., Courtallowed the plaintiff to amend the caption of the plaint, the effect ofwhich was merely a correction of an error in the name by which thedefendant was described. In the circumstances, it is manifest that factsin these cases are clearly distinguishable from the facts in the caseof Don Alwis v. Village Committee of Hiripitiya (supra).
The test prescribed by Dewlin, L.J. in Davis v. Elsby Brothers Ltd.<5>to be applied in cases of misnomer was quoted in the case of TheBank of Ceylon v. Vellaiyan Ramasamy (supra) as follows:
The test must be; How would a reasonable person receivingthe document take it? If, in all the circumstances of the caseand looking at the document as a whole, he could say tohimself, 'of course it must mean me, but they have got myname wrong' then there is a case of misnomer. If on the otherhand, he would say:
CA Shammari v. Premier Airline Agencies (Pvt) Ltd. (Weerasuriya, J.)167
1 fie tell frJfn the document itself whether they meanme or no..
I shall have to make inquiries, "then it seems to me thatone is getting beyond the realm of misnomer. One of thefactors which must operate on the mind of the recipient ofthe document and which operates in this case, is whether thereis or is not another entity to whom the description on the writmight refer".
Relying on this test there could have been no doubt in the mindof the defendant in the instant case when he was served withsummons that it was Saudi Arabian Airlines Corporation that theplaintiff intended to sue and that he had been named wrongly as thedefendant. On a careful reading of the plaint, it would be apparentthat naming T. K. A. I. Shammari as the defendant in the captionwas a mistake on the part of the plaintiff-respondent.
The learned District Judge upon a consideration of the facts, hadtaken the view that the amendment sought was in respect of an errorin the description of the defendant which was unlikely to mislead theparties in identifying the defendant and that the amended plaint madeno change in respect of the character and scope of the action.
In regard to the question of laches in terms of section 93 (2) ofthe Civil Procedure Code, the learned District Judge had held thatto determine the question whether or not a person was guilty of lachesthe circumstances under which the amendment was sought shouldbe considered and that delay was not the sole reason.
In the unreported case of Lulu Balakumar v. BalasinghamBalakumad6> it was observed that the question of laches cannot bedetermined only by considering the number of trial dates or the periodof time that had elapsed and that circumstances are relevant. Thusdelay per se does not amount to laches and the circumstances ofthe particular case have to be taken into account.
Section 65 of the Civil Procedure Code provides that:
"65 – In an action relating to any business or work againsta person who does not reside within the local limits of the
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jurisdiction of the court from which the summons Issued,service on any manager or agent who at the time of the servicepersonally carries on such business or work for such personwithin such limits shall be deemed good service; and for thepurpose of this section the master of a ship is the agent ofhis owner or charterer."
In the case of British Ceylon Corporation v. Lionel Edwards LtdPwhere the appellant company acted as the agent of a companyresident abroad it was held that in an action against the foreigncompany, summons may be served under section 65 of the CivilProcedure Code on the appellant company as its agent.
Learned counsel for the defendant-petitioner submitted that theDistrict Judge had granted time to the defendant-petitioner to file anamended answer. However, in her order dated 14.06.96 allowing theamended plaint, no reference had been made to an amended answer,which could be described as a procedural step upon the acceptanceof an amended plaint. It would appear that the correct procedurethe plaintiff-respondent could resort to would be to make an applicationfor service of summons on the defendant as correctly inserted in thecaption.
In the circumstances, it seems to me that having made order toaccept the amended plaint in which Saudi Arabian Airlines Corporationwas named as the defendant, the District Judge had erred in makingan order requiring T. K. A. I. Shammari to amend his answer.
The learned District Judge had rightly come to a finding that, theamended plaint does not violate the provisions of section 93 (2) ofthe Civil Procedure Code. In the result, the direction requiringT. K. A. I. Shammari to amend his answer is set aside.
Subject to this variation, I affirm the order of the District Judgedated 14.06.1996 and dismiss this application with costs.
ISMAIL, J., P/CA – I agree.
Application dismissed.