108-NLR-NLR-V-44-DE-SILVA-Appellant-and-ALAHAKOON-et-al.-Respondents.pdf
448
de Silva and Alahakoon
1943Present: Moseley S.P.J. and Keuneman J.
DE SILVA, Appellant, and ALAHAKOON et al., Respondents.
-v296-—D. C. Kandy, 993.
Joinder of parties and causes of action—Damages for wrongful arrest—Defendants acting iri concert-—Notice of action—Civil Procedure Code,s. 461.
"Where in an action to recover damages against three persons forwrongful- arrest and detention the plaint alleged one act performedby all of them and the implication was that they were acting in concert.Held, that there was no misjoinder of parties or causes, of action.
A notice of action under – section 461 of the Civil Procedure Codeaddressed to a Receiving Post Office at which the addresses have tocall for their letters on receipt of a notice is not regular.
^PPEAL from a judgment of the District Judge of Kandy. ' ■
MOSELEY J.—de Silva and Alahakoon.
449
L. A. Rajapakse, for second and third defendants, appellants.
C. W. Van Geyzel (with him Ivor Misso), for plaintiff, respondenjpCyril E. S. Perera, for first defendant, respondent.
Cur. adv. vult.
August 24,1943. Moseley J.—
The plaintiff brought this action against the three defendants whorespectively hold the offices of Korale, Peace Officer, and Aratchie,claiming damages for wrongful arrest and detention. The third defendanthad taken offence at something the plaintiff had done and sought toimplicate the latter on a charge of selling kerosene oil at a price in excessof what was alleged to be the control price. The plaintiff was taken intocustody by, or in the presence of, the three defendants, but no charge waspreferred against him as, by the time he appeared in Court, it wasrealised that the price of kerosene was not in fact controlled. Theplaint sets out that the three defendants, purporting to act in theirrespective official capacities, falsely and maliciously and without reason-able or probable cause, wrongfully arrested the plaintiff and detained himin their custody. The learned District Judge, held that the first defendanthas not acted maliciously and the action against him was dismissed.In regard to the action against the second and third defendants theplaintiff succeeded and was awarded Rs. 200 damages. Against thisjudgment the second and third defendants now appeal. The firstdefendant, somewhat unnecessarily it would seem, has been made arespondent to the appeal. The grounds of appeal are as follows: —
that there is a misjoinder of parties and causes of action ;
that the notices required by section 461 of the Civil ProcedureCode have not been delivered to the defendants or left at theiroffices ; and
that the learned District Judge was wrong in holding that it wasunnecessary to prove malice, or that, if it was necessary, that malicehad been proved.
It is convenient to deal with the third ground first. As I have alreadypointed out, the first defendant was absolved of acting maliciously.But the learned District Judge went on to say “ I have no option but tohold the third defendant with the assistance of the second defendantacted maliciously in charging the plaintiff with profiteering.” Now the-second defendant who, if will be remembered, is a Peace Officer mightperhaps be expected to know the'law to the extent that he ought to haveknown that no offence had been committed by the plaintiff. In thatrespect the second defendant might be. accused of negligence, but I amunable to find any evidence upon which a finding could be made thathe acted maliciously. It is difficult, in my opinion, to distinguish between ,the part played by him and that played by the first defendant. Theaction against the former should, as it was in the case of the latter, havebeen dismissed. His appeal must therefore succeed. The case againstthe third defendant stands upon an entirely different footing. He was
450MOSELEY J.—de Silva and Alahakoon.
instigated by a private grudge against the plaintiff to effect his arrestupon an unsustainable charge and was actively instrumental in bringingabout that arrest.
It becomes necessary therefore, to consider the second ground of appeal.The plaintiff’s proctors, for reasons best known to themselves, selectedthe Post Office as the means of delivering the necessary notices to thedefendants. The Post Office at Marassana, at which the registeredletters addressed to the defendants arrived, is only a Receiving Office,tetters are not delivered to the addressees. Notices are sent intimatingthat a letter has arrived and is awaiting collection. Such notices weresent to the defendants, but they, possibly having got wind of thecontemplated proceedings, took no steps to collect them. There is noevidence that any one of the defendants received his notice. It is notnecessary for me to express an opinion as to whether section 461 of theCivil Procedure Code contemplates the delivery, in normal circumstances,of such a notice by registered post. I am, however, certain that it doesnot contemplate a procedure which involves the attendance of a prospec-tive defendant at a given place in order that the notice may be handed tohim. I find, on this point, that no notice was delivered to the thirddefendant, nor was one left at his office. It is, however, conceded thatthe third defendant, if he was acting with malice, cannot set up. that therehas not been compliance with the section.
There only remains the question of misjoinder. Counsel for theappellants contends that the plaintiff had, if any, three separate causesof action, and that there is no averment that the three defendants wereacting in concert. The plaint, however, does allege one act- performedby three people and the implication is, I think, strong that they wereacting in concert. It is true that the evidence did not support thataverment and that'the action against the first defendant was dismissedby the District Court. The same state of things now exists in regardto the second defendant. I do not think that the case, as it was presentedin the District Court, involved any misjoinder. It has merely failed asregards the first and second defendants for want' of evidence againstthem. The third defendant has been in no way prejudiced.
The appeal of the second defendant is allowed with costs against theplaintiff-respondent. The appeal of the third defendant is dismissedwith costs. The first defendant-respondent will get his costs of appealfrom the second and third defendants-appellants. The judgment of theDistrict Court as regards the second defendant-appellant is set aside andthe action against him is dismissed without costs.4
Keuneman J.—I agree.-
Appeal of 2nd defendant allowed.Appeal of 3rd defendant dismissed.