Narayan Chetty v. Silva.
Present: Akbar J. and de Silva A.J.
NARAYAN CHETTY v. SILVA.
116—D. C. Guile, 29,562.
Public Servants’ (Liabilities) Ordinance—Dismissal of action on promissorynote against public servant—Note rendered void—Subsequent action onnote—Ordinance No. 2 of 1899, s. 4.
The dismissal of an action on a promissory note on the ground thatthe defendant is a public servant renders the note void and of no effectand precludes a subsequent action on the note.
HE plaintiff sued the defendant on a promissory note in case
No. 25,412 of the District Court of Galle, and the action wasdismissed under the Public Servants’ (Liabilities) Ordinance on the pleathat the defendant was a public servant at the time.
The plaintiff instituted the present action on the same note after thedefendant ceased to be a public servant.
M. T. de S. Amerasekera (with him J. R. Jayewardene), for defendant,appellant.—Plaintiff’s first action was dismissed. We pleaded OrdinanceNo. 2 of 1899 (Public Servants’ (Liabilities) Ordinance). The District Judgehas only considered the question of estoppel. More important question iswhether the note sued on is void under section 4. The object of that sectionis to penalize persons bringing actions in contravention of this Ordinance.The fifst action was in contravention of the Ordinance; therefore thepenalty, that all documents are void, operates. The object of the Ordinanceis not to protect individuals but the public service from interference.Plaintiff should have been aware of the Ordinance and the penaltiesattached. If documents are not void, plaintiff can bring a series of actionson the same document. The object of the Ordinance would be defeated.The promissory note is a document in the action. Section 4 : idered itvoid. Plaintiff cannot now sue on it. Previous cases under the Ordinancedeal with actions against persons who have ceased to be public servants,but there has been no prior action while the person was a publicservant as here. Section 116 of the Civil Procedure Code also enacts thatdocuments made void by a decree need not be returned. Plaintiff cannotmaintain an action on a void note.
H. V. Perera (with him K. A. G. Perera), for plaintiff, respondent.—Thisinterpretation will create great hardship. The object is not to renderdocuments void in the future but only as regards that particular action.If section 4 is to be interpreted in the way appellant wants, then “allproceedings and documents in or incidental to an action” will includethe plaint and answer and decree. All these will be void. The purposeof the Ordinance cannot be this. The object of the Ordinance is not toallow public servants to escape their liabilities but to protect the publicservice. Our first action was dismissed. Defendant ceased to be apublic servant, he cannot now plead this Ordinance.
Amerasekera, in reply.—Section 3 (1) says “ no action shall be maintainedagainst a public servant”—in certain circumstances. This is a prohibi-tory section. Section 4 penalizes the breach of prohibition in section 3 (1)by making “ documents ” void. It is not a question of aiding public ser-vants, but punishing those who contravene section 3 (1) of this Ordinance.
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.