Present: Garvin A.J. and Jayewardene A.J.1923.

 FERNANDO v. PERERA.

104-D. C. Ratnapura, 3,851.

Civil Procedure Code, ss. 34 and 406-Action in Court of requests withdrawn without obtaining leave before service of summons on defendant-Fresh action in District Court for larger sum on same cause of action-Is action barred ?-Date of institution of action- Service of summons-Interpretation of Statutes-Power of Court to add to the language of a Statute..

Plaintiff, a toddy renter, sued his tavern keeper for Rs. 24-28 as balance due on the accounts. But before service of summons on defendant, he discovered a mistake and withdrew his action, and brought this action in the District Court for Rs. 644" 88 as balance due to him.

Held, that as plaintiff did not obtain leave to bring a fresh action when he withdrew the action in the Court of Requests, he was barred by section 406 of the Civil Procedure Code from instituting this action.

By the combined provisions of sections 34 and 406 the plaintiff is barred from claiming even the sum in excess of Rs. 24-28, if he was aware of it when he instituted the Court of Requests action.

The fact that the action was withdrawn before the service of summons does not take the case out of the provisions of section 406.
An action is instituted when a plaint is presented. Courts have no power to add to the language of a Statute, unless the language as it stands is meaningless or leads to an absurdity.

The words " omit " or " deliberately relinquish " in section 34 includes accidental omissions as well as acts of deliberate relinquishment, but a plaintiff cannot be said to have omitted to sue in respect of a part of his claim unless he was aware or informed of his claim at some time prior to his suit.

THE facts are set out in the judgment.

H. V. Perera (with him Charles de Silva), for the defendant, appellant.

R. L. Pereira (with him Selvadurai), for the plaintiff, respondent

C. W. Perera, for added-defendant, respondent.

September 13, 1923. JAYEWARDENE A.J.-

This is an appeal from an order of the District Judge of Ratnapura in which he has held that the plaintiff is not barred by section 406 of the Civil Procedure Code from maintaining the action. The plaintiff who is a toddy renter brought this action to recover a sum of Rs. 644.88, subsequently reduced to Rs. 494 o 87, from the defendant who was his tavern keeper. He alleged that the defendant ceased to be tavern keeper in July, 1922, and in going through the accounts he found that the defendant was indebted to him in the sum claimed as shown in the account, particulars filed with the plaint. The defendant filed answer denying liability, and making a counter claim. At the trial objection was taken that the plaintiff could not maintain this action in view of his conduct in C. R. Avissawella, No. 11,892. In that case instituted in August, 1922, the plaintiff sued this defendant to recover a sum of Rs. 24 o 28. He alleged there that the defendant had sold toddy to the value of Rs. 637 o 28, from July 1 to 18, 1922, and that he had accounted for Rs. 613, leaving balance of Rs. 24-28 due to the plaintiff. The causes of action in both cases is, therefore, the same, and under section 34 of the Civil Procedure Code the plaintiff should have included in the action the whole of the claim which he was entitled to make in respect of the cause of action. He failed to do this, and only claimed Rs. 24 o 28 in the Avissawella case. After the filing of the plaint in that case and issue of the summons, but before service of the summons on the defendant, he discovered an error in the accounts. He then moved to withdraw the action and for a recall of the summons. This was allowed by the Court on September 13, 1922. A few days later-September 26-he instituted the present action.

The defendant contends that as that action was withdrawn without obtaining permission from the Court to institute a