1935  Present: Koch J. and Soertsz A.J.

PERERA et al. v. TOUSSAINT.




 153-D. C. Anuradhapura, 1,836.

Prescription -New party added as plaintiff to action-Date of action for purpose of prescription-Book-debt-Ordinance No. 22 of 1871, s. 9.

Where, on objection taken to an action that it was not rightly-constituted, a party was added as plaintiff, the crucial date for ascertaining whether the action is statute barred or not is the date on which the right plaintiff came into the case.

A claim to recover money due for board and lodging in a hotel is a book-debt within the meaning of section 9 of the Prescription Ordinance.

APPEAL from a judgment of the District Judge of Anuradhapura.

H. V. Perera (with him M. T. de S. Amarasekere and D. W. Fernando), for defendant, appellant.

No appearance for plaintiff, respondent.

August 19,1935. SOERTSZ A.J.-

One B. Stephen Perera in his capacity as manager of the National Hotel, Anuradhapura, brought this action on December 7, 1932, to recover from the defendant, the manager of her lunatic husband, a sum of Rs. 685.01 which he alleged was the balance due on account of board and lodging provided for the lunatic between October 1, 1929, and December 8, 1931. The total amount incurred by the defendant's husband during this period was said to be Rs. 923.30, but this account was credited with two payments made by one Samaraweera who, in making those payments professed to act for and on behalf of the lunatic. The dates of these two payments are April 30 and of December 8,1931.

The defendant filed answer on April 26, 1933, and contended, inter alia, that the action was not maintainable by the plaintiff (a) as the business name of the hotel which the plaintiff represents has not been registered under the provisions of Ordinance No. 6 of 1918; (b) as the claim preferred by him is prescribed.

With regard to the first legal defence of non-compliance with the requirements of the Registration of Business Names Ordinance, the defendant's proctor admitted that it failed when the certificate of registration was produced and the case was fixed for trial on the question of "prescription". On the trial date, the defendant's proctor raised the further issue: Has the plaintiff any authority to sue on behalf of Haramanis Appu, who is the registered owner of the hotel ? Thereupon, plaintiff's proctor moved to add Haramanis Appu as added plaintiff. This motion was opposed, but the District Judge allowed it and made Haramanis Appu added plaintiff. This took place on November 3, 1933. Now, in my opinion, directly the certificate of the registration of business names was produced, it became quite clear that the proper party to sue was not the original plaintiff, the manager of the hotel, but the registered proprietor, and the proper course was to substitute him as plaintiff under section 13 of the Civil Procedure Code and not to add him as a party. There was no occasion whatever for both the manager and the proprietor continuing as plaintiffs. I do not know whether this course was adopted in order to get round the provisions of the Statute of Limitations. If that was the intention, I do not think it can avail the real plaintiff for that purpose. The crucial date for the ascertaining of whether the cause of action was statute barred or not, is the date on which the right plaintiff, in this case the proprietor, came into the case, and that is November 3, 1933. By that date the cause of action, if it arose from a book-debt, was barred even if the payment of December 8, 1931, be taken into account. Did this cause of action arise from a book-debt ? In my opinion, the answer is in the affimative on the authority of Dalton J. in Pate v. Mack[128 N. L. R. 321] In that case the definition given by Lord Esher in The Official Receiver v. Toilly[256 L. J. Q. B. 30.] is cited:-"The expression book-debts is not in itself vague. It means debts a