3 38 L. J. Each. 66.
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January 20, 1913. Lascelles C. J.—
This is an appeal against a judgment of the District Court ofKandy awarding the plaintiff damages for malicious prosecution bythe defendant. The plaintiff’s case is that the defendant, who isthe araehchi of Yatawara, maliciously and in order to satisfy aprivate grudge, brought a false charge of stealing a calf against thedefendant.
On the evidence I find it impossible to doubt that the charge,though preferred in the name of the korala, was in fact made bythe defendant, and that it was made by him maliciously andfalsely
His Lordship discussed the evidence and proceeded:—
There are several other circumstances which are mentioned inthe judgment of the learned District Judge which go to show thatthe charge was a false one maliciously, brought by the defendant.
I am quite satisfied that the charge was false to the knowledge ofthe defendant. The question whether the plaintiff is debarredfrom bringing this action by the fact that he has not served noticeon the defendant in accordance with section 461 of the Civil Pro-cedure Code is fully discussed in the judgment of my brother Wood.Renton, which I have had the advantage of reading.
I Have come to the conclusion that the learned District Judgewas right in following the judgment in Appueingo Appu v. Don Aronxthe effect of which is that a public officer who does an act maliciouslyin the pretended exercise of his authority cannot be said to be41 purporting to act ” as a public officer, and is therefore not entitledto notice of action.
I have referred to the Indian decisions under the correspondingsection (424) of the old Indian Code as to the construction of thewords “ an act purporting to be done by him in his official capacity/*but without finding any decisive guide. The decisions are conflict-ing (vide Shahunshah Begum v. Fergusson 2 and Jogendra Nath RoyBahadur v. Price 3).
I think that the point must be decided by the light of local legis-lation. As regards two important classes of public officers, namely,officers of the regular police and officers of the Customs, specialprovision is made for their protection when acting in the course oftheir duties. An officer of the regular police when sued “ for anyact done by him in such capacity ” may, under section 78 of thePolice Ordinance, 1875, plead that the act was done under a warrant,and under section 122 of Ordinance No. 17 of 1869 no summons canbe served on any officer of Customs “for anything done in the exerciseof his office ” until fifteen days after notice in writing has beendelivered to him. It is clear on the authority of Perera v. Hansard/» (1906) 9 N. L. R. 138.» I. L. R. 21 Cal 586. .
* I, L. R4 7 Cal. 499.* (1886) 8 8. C. C. 1.
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and of a well-known line of English eases, of which I will only citeone of the latest, namely, Pearson v. Dublin Corporation 1 (decidedunder the Police Authorities Protection Act, 1898), that theprotection given by sections expressed in these or in similar termsdoes not extend to acts maliciously done by the public officer undercloak of his authority. Then the question arises whether section461 of the Civil Procedure Code, which superseded section 122 ofthe Customs Ordinance (Le Mesurier v. Murray 3), enlarged theprotection already given by section 122 to officers of the Customsand extended it to malicious acts. 1 find it impossible to believethat by using the somewhat ambiguous expression, “ purportingto be done in ins official capacity,” the Legislature intended tointroduce such a change. I do not think that any such distinctioncan be drawn between this expression and expressions such as*“ anything done by the officer in the exercise of his office.”
In both cases the protection is intended to be given where thedefendant has acted in good faith and with an honest intention ofputting the law into force.
therefore, hold that the plaintiff’s action is not barred by hisfailure to give the notice prescribed by section 461 of the CivilProcedure Code. For these reasons I would dismiss the appealwith costs.
Wood Benton J.—
The evidence in this case is such as would have made it impossiblefor us in any event to hold that the strong finding of the learnedDistrict Judge in favour of the respondent on the facts was wrong.But speaking for myself, I desire to go further and to say that, inmy opinion, the decision of the learned District Judge on the meritswas right.
The only question that remains to be considered is whetherthe respondent must fail because he did not give the defendant-appellant notice of the action in terms of section 461 of the CivilProcedure Code. Two facts are clear and admitted. The appellantdid not receive notice of the action, and he is a public officer ”within the meaning of the section just referred to. The learnedDistrict Judge has, however, held on the evidence that the appellant,in the charge which he brought against the respondent, was actingmaliciously throughout, and in fact that the whole case was to hisknowledge a fabrication. In that state of the facts the learnedDistrict Judge says that the appellant, in the prosecution of thecharge in. question, was not “ purporting ” to act as a " publicofficer” within the meaning of section 461 of the Civil Procedure Code,and was, therefore, not entitled to notice of action. In support ofthat view he relies on a decision of my own in the case of Appusxngoi (1907) 4. C. 861.* (1898) 3 N. L. B. US.
WoodBbntom %
4 baronAppuv.Sonia
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dppu o. Don. Aron-,1 to the effect that a public officer who does anillegal act mala fide, in the pretended exercise of statutory powerscannot be said to be “ purporting ” to act as such, and is thereforenot entitled to notice of action. There is, so far as I am aware,no express decision on the meaning of the term “ purporting ” inenactments of this character.. In Appusingo Appu v. Don Aron 1I construed it in the sense in which the terms “ inj pursuance of ”were interpreted in England in the case of Hermann v. Seneschal.2I am still of opinion that the interpretation which I put on the word“ purporting ” in the case just mentioned is correct. Section 78 ofOrdinance No. 16 of 1865, which provides for notice of action beinggiven to members of the regular police in respect'of “ anythingdone or intended to be done ” by them under the provisions of thatOrdinance, was construed in the same sense by this Court in Pererav. Hansard,3 and the decision in that case was fortified by a referenceto a long series of English authorities in which the same principlewas laid down. Perera v. Hansard 3 was decided prior to the enact-ment of the present Civil Procedure Code, and the appellant’s-counsel contended that section 461 of that Code must be deemed tohave repealed section 78 of Ordinance No. 16 of 1865 by implication.In the case of Le Mesurier v. Murray,* it was held by Lawrie A.C.J.that the provisions of section 122 of the Customs Ordinance, 1869,(No. 17 of 1869), as to notice of intended action against a Customs-officer, were superseded by those of section 461 of the Civil Procedure•Code. It is clear law that an enactment in one statute should notbe held to have been repealed by implication by an enactment inanother, unless the two sets of provisions cannot reasonably beconstrued so as to stand together. It is quite possible to interpret•the term “ purporting ” in section 461 in a sense consistent withthe provisions of section 78 of Ordinance No. 16 of 1865, and I cannotbring myself to think that if the Legislature had intended to setaside the law embodied in the former enactment by the provisionsof section 461 of the Civil Procedure Code it would not have usedunambiguous language for that purpose. It was argued that thequestion of the good faith of a public officer could not form anelement to be taken account Of in considering whether or not he■had a right to notice of action because the question was incapableof being determined before the action had been tried. No difficultyof this kind, however, has arisen in England in consequence of theconstruction put by the Courts there on such expressions as “inpursuance of ” or “ anything done or intended to be done ” underthe provisions of a statute, and I see no reason to anticipate that.any such difficulty will arise under our procedure in this Colony.
would dismiss the appeal with costs.
(1886) 8 S. C. 0.1.
< (1898) 8 N. L. R. 118.
(1806) 9 N. L. R. 138.
(1868) 82 L. J. C. P. 43.