(COURT OF APPEAL)*

FADLALLA SULIMAN v. ABDALLA EL MAHDI

AC-RE V-139-1966

 Principles

·  Limitation of Action—Defendant’s name improperly struck off and after time restored—Time of limitation runs from the date the defendant’s name is resubstituted and not from the date suit started with defendant’s name

Presence of defendant in a suit is an important element, because there will be no right of action without a defendant. If defendant’s name is struck off, this means that there is no right of action against him. Therefore, if defendant’s name is improperly struck off from the Suit by plaintiff and after time is rejoined, then this must be done within the limitation eriod, becaus the time of limitation in such a case runs from the date de ‘ndant’s name is resubstituted and not from the date the original suit started with defendant’s name.
 

Judgment

Advocate: Yacoub Mohamed El Awad for applicant

Osman El Tayeb J. November 30, 1966: —This is a case about the law of limitation, where in a claim for damages for personal injuries, a party was struck out, and at a later stage when he was sought to be added, he pleaded that the claim, there and then, became statute-barred.

Plaintiff (respondent in this revision) instituted a suit by his petition dated June 28, 1961, in Kosti District Court, against (1) El Hag Hussein Fadi Alla, merchant of El Duiem, and (2) Gasrn Alla Gabir El Shiekh, lorry-driver of El Duiem, claiming from them jointly and severally dam ages for personal injuries in a road accident, caused negligently by second defendant who was driving the lorry of first defendant in June 1960. The latter was so described as the owner of the lorry.

Plaintiff applied for suing the forma paupris, and for that purpose summonses were issued to the two named defendants. The summonses were returned unserved, showing that they could not be traced. Advocate for plaintiff applied for suit to stand over until he could find the defendants. On February 17, 1962, that advocate informed the court that the name of first defendant was El Hag FadI Alla, in a shop near the Mosque at El Duiem, and that second defendant was a prisoner in Wad Medani prison. The summonses were returned served, but the name of first defendant was said to be Fadl Alla Suliman. In their absence the suit was allowed without fees on March 27, 1962. SummonSes were issued for them to appear to reply to the claim on April 24, 1962. It was adjourned to another date until Fadi Alla Suliman of El Dueim and others were served with sumnibns. They failed to appear and on June 5, 1962, advocate for plaintiff applied for a default decree, and so the suit was allowed to stand over until an affidavit was produced. On July 10, 1962, one Omer Fadi Alla appeared as for Fadl Alla Suliman, and applied for reopening the suit on the ground that he was not the person meant to be a defendant in that suit. Later the suit was ordered to be reopened. The said agent asked for a copy of the statement of claim that was given to him and the suit was adjourned for reply to the issues.

On August 16, 1962, appeared plaintiffs advocate and first defendant’s, agent. The advocate stated that it was revealed to them that the lorry was registered in the names of Salman Mahrnoud and Hassan Fadi Alla Suliman, and he applied for striking out the name of first defendant and substituting the names of those two mentioned by him. The learned District Judge made an order accordingly as follows:

The suit to be amended by striking out the name of El Hag Fadl Alla Suliman, and adding each of Hassari Fadi Alla and Salman Mahmoud as defendants, besides defendant Casm Alla Gabir.

Summonses were served on the two new defendants and on November 29, 1962, as they failed to appear a default decree was passed against them for the amount of damages with costs. It is to be noted that Gasrn Alla Gabir was not included in the later decree. Thereafter advocate Gabir Abdel Rahman for Salman Mahmoud applied for setting aside the default decree, and while the court was considering this application, and on June 24, 1964, plaintiff told the court that he discovered that the lorry in question, and at the time of the accident, was owned by Hag FadI Alla Hassan and his son Hassan Fadi Alla, and he applied for a date to be fixed for their appearance. Summonses were sent for the two persons, but until October 6, 1964, no service was made, and advocate for plaintiff informed the court that the name of first defendant was Fad! Alla Suliman, and not Hassan FadI Alla, and applied for amendment; and the learned District Judge made an order of amendment accordingly. Summonses were served on Fadi Alla Suliman to appear on October 31, 1964, and as he failed to appear a default decree was passed against him alone to pay to plaintiff the sum of £S.2, 000.000m/ms. This default decree was later set aside, on the ground that defendant showed good cause for his failure to appear.

Advocate Yacoub Mohamed El Awad made on May 3, 1965 an application objecting to the rejoining of FadI Alla Suliman on the ground that the ri of action against him, if any, had become statute-barred at the time of rejoining him, since the accident in which the injury was caused occurred in June 1960. This is the point that is raised for determination.

The learned District Judge decided this point against applicant, by dismissing the objection raised by him. The reasons were that at first there was a mistake as to the name of applicant, and later there was a mistake as to whether he was the owner of the lorry that caused the accident. Respondent intended to sue the owner of the lorry, as he did, and that the important thing about the defendant in any suit is his description, not his person or his name. When respondent applied on August 16, 1962, for striking out the name of applicant from the suit, he mistakenly thought that he was not the owner of the lorry, and when he applied on June 24, 1964, for rejoining him, he discovered his mistake and sought to have the matter corrected. The learned District Judge concluded that respondent acted negligently and did not relinquish his right of suing applicant, and that it was only his mistake about the owner of the lorry that made him make different applications, and that applicant was in the suit from the start and therefore no question of statutory bar should arise.

On revision the learned Province Judge agreed with the above reasons. He added what may be understood to mean that the law of limitations is a procedural law, the technicalities of which should not be allowed to prejudice the just decision of the case. He dismissed the application for revision summarily.

In my opinion the real and exact issue has been missed by the coui below. That issue is what is the effect of striking out applicant and rejoining him in relation to the period of limitation knowing that the application to rejoin him was made outside the period of limitation? It has to be stated that a mistake in the name of a defendant or mis- description of his identity can be corrected at any stage of the proceedings even after the expiry of the period of limitation; on the other hand, the joining or adding, which means an amendment of the cause, cannot be allowed except within the period of limitation. This case takes a different form, applicant was a defendant from the start, when the case was first instituted within the limitation period, then on application of plaintiff he was struck out, and it was sought to rejoin him when the right of action became statute-barred.

The striking out and rejoining of applicant was purported to have been made under Civil Justice Ordinance, Ord. VII, r. 8; the relevant parts thereof read:

(1) The court may at any time before passing a decree:

(a) Strike out the names of parties improperly or unnecessarily joined;

(b) Order that . . . any person whose presence is desirable for a just decision of the suit be made to the suit either as plaintiff or defendant.

The presence of a defendant in a suit is a vital element of it, since it is an integral part of the right of action. In other words there is no right o action without a defendant from the start, and at any stage of the proceedings. In my opinion the striking out of a defendant under the above rule is tantamount to saying that there was no right of action in so far as he was concerned. That from the start there was no right of action against him, as he was improperly or unnecessarily joined. The effect of this is that the struck-out defendant cannot be restored in the case or rejoined except within the limitation period proper as reckoned from the date of the accrual of the cause of action. It is the same position of a defendant being added or joined for the first time.

The Indian Limitation Act, s. 22, states:

Where after the institution of a suit, a new plaintiff or defendant is SLStItlted or added, the suit, shall, as regards him, be deemed to have been instituted when he was so made a party.”

Rustomju, Limitation, 281 (6th ed., 1958), commenting on this section stated: “J if the name of the defendant is, by order of the court, struk out, the suit as against him is thereby brought to an end. Should the court subsequently rescind its previous order and direct the defendant’s name to be restored to the record, and the plaint is amended accordingly, such amendmeht is tantamount to the institution of a new suit against the defendant, and the limitation is checked only from the date of the re-spsti ution of the defendant’s name and not as from the original presenation of the plaint.”

In this case, respondent sought to sue the owner of the lorry involved in the arcident, he put in the plaint the applicant’s name. The mistake as to the name that it was El Hag Fadl Alla or Fadi Alla Suliman is imrnatcriaL Respondent was not sure about the owner of the lorry, and so he later applied to the court to strike out applicant’s name and to substitute other names, on the ground as he told the court that he came to know that applicant was not the owner of the lorry. The court made the order of striking out applicant. Whether his knowledge was right or wrong is immaterial, and the fact remains that he applied for striking out applicant, and the court made the order applied for. In other words he declared that he had no right of action against applicant ResponJerit cannot therefore, resubstitute applicant except within the limitation period. And at the time, as it is shown above, when respondent sought to have applicant rejoined, the right of action was statute

The law of limitation requires the plaintiff to act diligently in bringing his suit within the prescribed perod, and in order to do that he must find his defendant, if he failed to do so with certainty, then he is not acting diligently. Respondent was not sure about his defendant, and he remained so, until the period of limitation had elapsed.

This revision is allowed with costs, and the order of rejoining applicant is hereby set aside.

El Fatih Awouda J. November 30, 1966: —I agree.

The plea of limitation is not a mere technical plea, as the learned Province Judge seems to believe, inasmuch as, if available, it destroys a right of action once in existence and the court cannot deprive the defendant of the advantage thereby gained.