JUDGMENT

Peh Swee Chin J:

This appeal involves a rather important matter of interpretation of O. 15, r. 1, sub-rule (4) of the Subordinate Courts Rules 1980 which is in words same as those in O. 20, r. 5, sub-rule (4) of the Rules of the High Court 1980. It will be desirable, in setting out sub-rule (4), to set out O. 15 r. 1 sub-rules (1) and (2) of the Subordinate Courts Rules 1980:-

"Order 15 r. 1

1. (1) Subject to O. 8, rr. 6, 7 and 8 and the following provisions of this rule, the Court may at any stage of the proceedings allow the plaintiff to amend his summons, or any party to amend his pleading, on such terms as to costs or otherwise as may be just and in such manner (if any) as it may direct.

(2) Where an application to the Court for leave to make the amendment mentioned in para. (3), (4) or (5) is made after any relevant period of limitation current at the date of issue of the summons has expired, the Court may nevertheless grant such leave in the circumstances mentioned in that paragraph if it thinks it just to do so.

(3) ...

(4) An amendment to alter the capacity in which a party sues (whether as plaintiff or as defendant by counterclaim) may be allowed under para. (2) if the capacity in which, if the amendment is made, the party will sue is one which at the date of issue of the summons or the making of the counterclaim, as the case may be, he might have sued.

When the action was first filed, within three years' period as prescribed by the Public Authorities Protection Act, 1948, one Mohamed Amin bin Hassan, sued as administrator of the estate of his deceased son killed in the accident in question. It appears that the said Mohamed Amin himself was badly injured in the same accident, and on a subsequent date i.e. 9 February 1982, he applied inter alia, to the Court to add himself as another plaintiff under O. 15, r. 1, sub-rule (4) this time in his personal capacity. Unfortunately, when he so applied, the three years' period of limitation had already expired. The ground of his application was that a medical report was not available earlier. The learned President, sitting as Magistrate, allowed the application despite the objections of learned Federal Counsel appearing for the defendants. From that part of the order granting leave to allow the said Mohamed Amin to add himself as another plaintiff in his personal capacity, the defendants have now appealed.

The learned Magistrate referred to the sub-rules set out above and referred to Hilton v. Sutton Steam Laundry [1945] 2 All ER 425, in which leave was refused to the plaintiff there to change the capacity in which she sued; Davies v. Elsby Brothers Ltd. [1960] 3 All ER 672, in which plaintiff was refused leave to amend the name of "Elsby Brothers" to "Elsby Brothers Ltd." the former having turned themselves into the latter; and to Mitchell v. Harris Engineering Co. Ltd. [1967] 2 QB 703.

In Mitchell's case on which the learned Magistrate relied, the Court of Appeal, considering the provisions of the English Rules of the Supreme Court similar to our sub-rules set out above, granted leave to amend the name of defendant from "Harris Engineering Company (Leeds) Ltd." to "Harris Engineering Co. Ltd.". Lord Denning, in his judgment, held that the O. 20, r 5 (2), (3), (4) and (5) of the English Rules of the Supreme Court, (similar to O. 15, r. 1 sub-rules (1), (2), (3), (4) and (5) herein) had removed the injustice of the kinds caused by cases mentioned above. He held, inter alia, that such provision was a most beneficial one, enabling the Courts to amend pleadings whenever justice of the case so required.

Before me, the learned Federal Counsel submitted that O. 15 r. 1 sub-rule (4) allowed only one party to alter his capacity in which he sued, so that, and in such a way, if the amendment was allowed, there would still be only one party with an altered capacity. Here she submitted that the said Mohamed Amin, under the guise of sub-rule (4) had wanted to add a new party in addition to th