Abdulali Jiwanjee and Co. Ltd v Highland Commercial Union (Civil Suit No. 42 of 1952) [1952] EACA 3 (1 January 1952)

### ORIGINAL CIVIL

### Before CONNELL, J.

# ABDULALI JIWANJEE & CO. LTD, Plaintiff ν.

## HIGHLAND COMMERCIAL UNION, Defendants

### Civil Suit No. 42 of 1952

Civil Procedure and Practice-Civil Procedure (Revised) Rules, 1948-Order 6, rule 19—Amendment to name of defendant—Application by plaintiffs to amend name of defendant after service—Whether in good faith—Whether justice of suit required amendment.

The facts appear fully from the order of the Court.

Held (21-5-52).—The application to amend having been made in bad faith, was disallowed. The justice of the case did not require the amendment.

Case distinguished: Phakey v. World Wide Agencies Ltd., (1948) 15 E. A. C. A. 1.

Case cited: Steward v. North Metropolitan Tramways Co., (1886) 16 Q. B. D. 556.

Ahmed for plaintiff company.

#### Mitra for defendants.

ORDER.—On 8th February, the plaintiffs filed a suit, for goods sold and delivered, against the Highland Commercial Union. On 19th February, 1952, the summons was accepted and stamped on behalf of Highland Commercial Union Ltd. On 26th February, the Company's advocates wrote two letters stating (1) that the summons had been erroneously accepted as the suit was not instituted against the Company; $(2)$ enclosing cheque for Sh. 4,351/10 in favour of the plaintiffs.

On 6th May a summons was filed to amend the plaint by substituting the words "Highland Commercial Union Ltd." instead of Highland Commercial Union and, on 15th May, 1952, what purported to be a copy of an affidavit (undated and unsigned) was placed before me objecting to the "impleading" of the Company as defendant, since plaintiff has "now no cause of action against the Company as it has paid the claim in full".

Now there is no doubt whatever that after the original plaint was filed and the sum of Sh. 4,351/10 was sent, Mr. Ahmed's clients, the plaintiffs, accepted that sum (as he agrees) "towards payment in this case". There is left, therefore, only a small disputable balance of Sh. 650 odd. To allow this amendment under those circumstances and to back-date the plaint would not only gravely prejudice the defendant, but there would be no means of recouping the defendant with costs. Moreover, I think the application is clearly made in bad faith as it is sought by back-dating the amendment to give no credit at all for the sum of Sh. 4,351/10. The facts are quite different from those of *Phakey v. World Wide* Agencies Ltd., (1948) 15 E. A. C. A. 1. In the latter case the learned President and Justices of Appeal were entirely satisfied that the justice of the case required the amendment. In the present case I am entirely satisfied that the justice of the case does not require the amendment.

In my view, the present application comes entirely within the principles laid down in Steward v. North Metropolitan Tramways Co., (1886) 16 Q. B. D. 556. It is dismissed with costs.