Wickremesooriya V. Abeywardene

Present: Middleton J.

WICKREMESOORIYA v. ABEYWARDENE.

C. R. Matara, 6,427.

Restitutio in integrum-Omission to claim interest by an oversight- Slight loss-Remedy not available.

By an oversight the plaint in an action on a promissory note averred that the note was dated December 20, 1910, whereas in fact it was dated December 20, 1909. Decree was entered by default, and the plaintiff lost one year's interest, Rs. 90. The plaintiff applied to the Supreme Court for relief by way of restitutio in integrum. Held, that the plaintiff was not entitled to the relief sought for.

IN this case the plaintiff as administrator of the estate of a payee of a note for Rs. 150, payable with interest at 60 per cent, sued the maker on the note. By an oversight on the part of the proctor the plaint averred that the note was dated December 20, 1910, whereas in fact it was dated December 20, 1909. Decree was entered by default against the defendant; and the plaintiff lost interest for one year, Rs. 90.

Plaintiff applied to the Commissioner of Requests for amendment of the decree. He declined to interfere.

The plaintiff then applied for relief to the Supreme Court by way of restitutio in integrum.

A. St. V. Jayewardene, for the petitioner.-The plaintiff was suing as administrator. He has to account for the money due on the note to the Court.. The insertion of the wrong date was due to a mistake on the part of the proctor. The omission to claim interest for one year was not intentional. Where a decree has been wrongly entered by mistake, relief is granted to the party aggrieved by way of restitutio in integrum. (Sinnatamby v. Nallatamby.1)

Balasingham, for the respondent.-No case has been made out for relief by way of restitutio in integrum. The omission to claim interest was a mistake on the part of the proctor. Where a proctor failed to see that the terms of a settlement were properly entered, it was held that this remedy was not open to the party aggrieved by the wrong entry. (Abeyesekera v. Harmanis Appu et al.2)

This remedy is not granted unless the damage suffered, is considerable. See 14 N. L. R. 356, Omission to include any portion of the claim in an action bars the plaintiff from suing for it subsequently (Civil Procedure Code, section 34). If the plaintiff could apply for restitutio in integrum in such a case as this, the provisions of section 34 would be useless. Counsel referred to Swaris v. Cooray.3

A. St. V. Jayewardene, in reply.

Cur. adv. vult.

January 12, 1912. Middleton J.-

By an oversight the plaint in this action on a promissory note averred that the note was dated December 20, 1910, whereas in fact it was dated December 20. 1909. Judgment went by default and the error was embodied in the decree, thereby depriving the plaintiff, by his own laches or that of his proctor, of the right to recover about Rs. 90 in addition to the sum ordered to be paid.

Application was made to the Commissioner of requests for amendment of the decree, but he very properly declined to do so.

The plaintiff now almost ad misericordiam, on the ground of his being an administrator, applies to this Court for relief by way of restitutio in integrum.

As I told the learned counsel for the appellant on the conclusion of the argument, I do not think that this is a case in which the remedy sought for should be allowed. The position of the plaintiff in this case has been brought about solely by his own or his proctor's negligence. It is not a question of doubt as has occurred in some cases whether the Court was responsible for the error; it is clear that it was not. The loss is a pecuniary one, not a very heavy one, and

1 (1903) 7 N. L. R. 139.                                                                 2 (1911) 14 N. L. R. 353.

3 (1907) 4 Bal. 153.

susceptible of accurate money compensation, and there is another remedy open to the plaintiff; if he has not, he has himself entirely to thank

Click Here to Read the rest of this document