Eliyatamby v. Kanapathy Veeragathie.
May 31,1933. de Silva A.J.—
In case No. 25,412 of the District Court of Galle, the plaintiff sued thedefendant on a promissory note and on a plea being raised that thedefendant was a public servant at the time, the action was dismissedunder the provisions of the Public Servants’ (Liabilities) Ordinance, 1899.In this case the plaintiff has sued the defendant, now no longer a publicservant, on the same note.
Two issues were raised in the lower Court: (1) Can the note be suedupon in view of the provisions of section 4 of Ordinance No. 2 of 1899and section 116 of the Civil Procedure Code ?(2) Is the plaintiff estop-
ped by the decree and proceedings in D. C. No. 25,412 ? It appearsfrom the judgment that the learned Judge has addressed his mind tothe second issue but he does not appear to have considered the first.
It has been held in decisions of this Court that the Ordinance affordsno defence to an action brought at a time when a defendant is not apublic servant. In these cases there had been no dismissal of a pre-vious action and the effect of such a dismissal was not discussed.
It .is argued for the defendant-appellant that section 4 of the Ordinancerenders void and of no effect as against him the note which had beensued upon unsuccessfully in the previous action. Section 4 of theOrdinance says that “ all proceedings and documents in or incidental toan action in contravention of the Ordinance shall be void It is to benoted that not only the proceedings but “ documents in or incidental to”the action are void. I have no doubt that the previous action was incontravention of the Ordinance and that the note sued on was a documentof the description set out in the Ordinance. This appears to impose asomewhat severe penalty on a plaintiff who brings an action in contra-vention of the Ordinance. I find myself however unable to find a meaningfor the words “ documents in or incidental to an action in contraventionof this Ordinance” which would not include the note sued upon, andCounsel for the respondent whom I pressed upon the matter was himselfunable to furnish a satisfactory meaning which would exclude it.
I am of opinion therefore that the argument of the appellant is soundand that he is entitled to succeed. I set aside the order of the learnedDistrict Judge and dismiss the plaintiff’s action with costs. The appellantwill also be entitled to the costs of this appeal.
Akbar J.—I agree.
Appeal allowed.