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VELANTHAN CHETTY v. SATHUKA LEBBE
NLR18V252
1915. Present
: Wood Renton C.J. and De Sampayo A.J.
VELANTHAN CHETTY v. SATHUKA LEBBE.
20-D. C. Colombo, 40,106.
Action by way of summary procedure on note for Rs. 10,000-Endorsement on summons
wrongly stated to be Rs. 1,000-Is irregularity fatal to plaintiff's right to
proceed by way of summary procedure ?
In an action by way of summary procedure on a note for Rs. 10,000, in the copy
of the note endorsed on the summons the amount appeared both in words and
figures as Rs. 1,000.
Held, that the mistake was not fatal to plaintiff's right to proceed on the note
by way of summary procedure.
THE
facts are set out in the judgment.
F. M. de Saram, for appellant.-The summons in this case was not in
accordance with the strict requirements of section 703 of the Civil Procedure
Code. That section enacts that the summons shall be in the form No. 19 contained
in the second schedule to the Code. The form requires that the instrument sued
on. should be copied out, and where it is a negotiable instrument and carries
endorsements, that the endorsements should also be copied out. In the present
case the action is on a negotiable instrument purporting to be a promissory note
for Rs. 10,000, but the instrument copied out in the summons is a promissory
note for Rs. 1,000 only. The procedure under chapter LIII. of the Code being a
special procedure for the benefit of persons holding promissory notes, &c, and
when that summary procedure is resorted to, the plaintiff should strictly follow
the requirements of the section. The summons, therefore, not being in the form
required by the Code, it is a fatal irregularity, and entitles the defendant to
come in and defend unconditionally.
February 11, 1915. WOOD RENTON C.J.-
This is an appeal from an order made by the learned District Judge of Colombo in
an action by the plaintiff against the defendant, who is the appellant, on a
promissory note for Rs. 10,000, that the action, which was one of summary
procedure, should be relegated to the ordinary procedure. The ground of the
application is that whereas the promissory note sued on was for a sum of Rs.
10,000., in the copy of the note endorsed on the summons under section 703 of
the Civil Procedure Code the amount appears, both in words and in figures, as
Rs. 1,000. The appellant filed an affidavit in support of his application, in
which he called attention to this irregularity.
But in that affidavit he does not state that he was in any way misled by the error, nor does he even say what is his defence to the action. The question, therefore, arises whether we are compelled by law to treat a mistake, such as we have here to do with, as being fatal to the plaintiff's right to proceed on the promissory note by way of summary procedure. There has been no error in the procedure itself. The summons required by section 703 of the Code has been taken out, and it is not contested that it was duly served. But it is contended that the effect of section 703 is to render the use of the summons referred to in that section, and appearing as form No. 19 in the Schedule to the Code, imperative. The words in the form that deal with the copy of the instrument sued on are to be found in a note in italics at the end of the form itself. They are in these words: "Here copy the instrument sued on, and where it is a negotiable instrument and carries endorsements, with the endorsements. " The construction of those words came before Sir Alfred Lascelles and myself in 20-D. C. (Inty.) Colombo, No. 33,475.1[S. C. Min., March 4, 1912.] The application was identical. It was based on two grounds: in the first place, that the affidavit filed by the plaintiff did not state in terms that the sum claimed in the action was justly due, and in the next place, that there had been a failure on his part to copy an endorsement on the instrument on the back of the summons. With the first of these grounds w
