114-NLR-NLR-V-57-DE-SILVA-Appellant-and-ILANGAKOON-Respondent.pdf
1956' ‘- Present: Basnayake, A.C.J., and Pulle, j.DE SILVA, Appellant-, and, ILARGAKOOH, Respondent
S. C. 147—D. O. KurilnegaJa-, 7,355/31
Action against public officer—Notice of action—Procedure—Malice alleged in plait'd—Is notice necessary then ?—Civil Procedure Code, a. 461.
> & ?
In an action against a public officer in respect of an act purporting to be doneby him in his official capacity, tho requirements of section 461 of tho Civil Picedure Code should be strictly observed and the notice which should bo giventhe defendant should be in the form prescribed in the Schedule to the Code,letter of demand written to the defendant by the plaintiff’s Proctor doe3 notsatisfy the requirements of section 461.
Where malice was alleged against the defendant in an action for defamationinstituted against a public officer in respect of a statement purporting to bo madeby him in his official capacity—–
Held, that the allegation of malice in the plaint did not exempt the plaintifffrom his duty to give the defendant due notice of the action in conformity withthe requirements of section 4CI of tho Civil Procedure Code.
A.PPEAL from a judgment of the District Court, Kurunegala,
11. V. Perera, Q.C., with E. A. G. de Silva and D. R. P. Goonelillcke,for Defendant-Appellant-..
N.E. Weerasooria, Q.G., with G. T. SamaraicicJcrema-, for Plaintiff-Respondents.•
.. Cur. adv. vult.
May 2, 1956. Basxayake, C.J.—
The defendant-appellant (hereinafter referred to as the appellant) i3the Headmaster of a Government School. He has been sued by theplaintiff-respondent, a minor, by his next friend, hi3 father (hereinafterreferred to as the respondent), in damages alleged to have been suffer edby him in consequence of a defamatory statement made by the appellant .in the School Leaving Certificate granted .to. the respondent.. Thealleged defamatory statement was made in a document, which theappellant had to complete in his capacity as Principal of tho School andhand over to the legal guardian of the respondent when the pupil left thoSchool, and is as follows : “ Conduct extemely bad.”
. – The learned trial judge held against the appellant and entered -judgmentfor the respondent in a sum of Rs. 5,000 with costs in that class. – – – –
•–The'appellant submits that t-he respondent is hot in law entitled tomaintain the action as he has failed to comply with the terms of section461 of the Civil Procedure Code, That'section -provides that no- action
– 20—— x.vif …-
' 2-——J K. B 5605&—-1,506 (7/50)
shall be instituted against a public officer in respect of any act purportingto bo done by him in his official capacity, -until the expiration of orfcmonth next after notice in writing has been delivered to such officerstating the cause of action and the name and place of abode of tho personintending to institute the action and tho relief which he claims. It alsorequires that the plaint in such an action must contain a statement thatsuch notice has been delivered.
Learned counsel for the appellant contends that the requirements ofthat section are imperative.
Learned counsel for the respondent contends that the notice requiredby section 461 has been given and refors us to a letter by Pcrera & Perera,the respondent’s Proctors, which is to the following effect:—
27th January 1951
B. J. de Silva Esq.,
Principal, Govt. School,
Uhumiya.
Dear Sir,
We have been instructed by our Mr. 1. M. P. B. Ilangakoon,Village Headman, Uhumiya, Palata, as Guardian of his minor sonIlangakoon to demand of you the immediate paj-ment of the sumof Rs. 15,000 being damages occasioned by j our false and maliciousendorsement in the leaving certificate of the said Banda Ilangakoondated 12tli January 1951. Should you fail to comply with thisdemand on or beforo the 6th February 1951 we have furtherinstructions to sue you at law to recover the said damages.
Sgd. Pcrera & Perera.
The Schedule to the Civil Procedure Code prescribes the form of noticeof action. That form provides that it should bo addressed to the publicofficer concerned and it reads thus :—
“ Take notice that I, .,.. ‘ A. B. … of … am
about to institute an action against 3-ou in your official capacity asfor(state the cause of action and the relief
claimed)
Sgd.
How in the instant case the document which the respondent claims is 'a notice of action is not in the prescribed form, nor does it purport to bea notice of action. It is a'demand of pajnnent by the Proctors for therespondent with an indication' that they have instructions to sue theappellant at law to recover the damages if they are not paid. – That therespondent never intended the letter which his Proctors wrote to theappollant demanding the payment of damages to be a notice of action.under section 461 of tho Civil Procedure Code is apparent from tho fact
that in his plaint ho did not plead as required by section 461 that thenotice required by that section had been given to tho appellant. Whenthe appellant in his amended answer took the objection thnt the actioncannot bo maintained as the respondent had failed to give the prescribednotice, the respondent filed replication denying that any notice undersection 4G1 of the Civil Procedure Code was necessary in the circumstancesof this case.
The notice under section 461 of the Civil Procedure Code is a conditionprecedent to the institution of an action against a public officer in respectof any act purporting to be done by him in his official capacity. Therequirements of that section should be strictly observed and the noticeshould be in the form prescribed in the Schedule to the Code. Thenotice should indicate to the recipient that the communication is meantto be a notice under that section and inform him of all the particularsthat are required to be stated in such notice. The letter which therespondent’s counsel now claims is a notice of action does not satisfy therequirements of section 461. Procedural provisions such as these are •imperative and failure to observe them is fatal to an action.
In the case of Thamp>oe v. 31 tint basil 1 it has been held that the failureto observe the requirements of section 461 absolutely debars a Courtfrom entertaining .a suit instituted without compliance of those provisions.
Learned counsel for the respondent also argued that in this case nonotice was necessary as^there was an allegation of malice and mala fidesin the plaint. He submitted that there is a long line of decisions of thisCourt which lays down that where malice is pleaded in an action againsta public officer notice under section 461 need not be given. He reliesparticularly on the case of Appu Singho v. Don Aron 2 and Abaran Appu v.Banda 3. In the former case it was held that it would be intolerable ifthe privileges conferred by the Civil Procedure Code on public officersacting in their official capacity were to be extended to public servantswho act wrongly and for the gratification of private malice. In thelatter ease it was also held that a public officer who does an act maliciouslyin the pretended exercise of his authority cannot be said to be purportingto act as a public officer and is therefore not entitled to notice of action.
I am unable to find in the language of section 461 anything whichrequires a person bringing an action against a public officer to ascertainbeforehand whether the act which he purported to' do in his officialcapacity was mala fide or bona fide. All that the section attempts to dois to debar a person from instituting an action against a public officer“ in respect of an act purporting to be done by him in his official capacity ”until the expiration of one month next after notice as prescribed in thesection has been given. If the action is in respect of an act purportingto be done by a public officer in his official capacity, then the prohibitionin section 461 applies. The word “ purporting ” has been defined in thecase of Appu Singho v. Don Aron {supra) as equivalent to “in pursuanceof”, and in the case of Abaran Appu.v. Banda {supra) as meaning“pretended to be done ” or “intended to be done
.* 1 G. L. li. 107.* ON. L. R. 13S.
When construing a provision such as section 461, in the first instance^the’"expressions used therein should be given their ordinary meaning'.The word “purport” means'ordinarily “profess” or “ claim ” or“moan ” or “ imply Where as in. this case a public officer clcarlj’inthe exercise of his function.as the Principal of a School has given acertificate to’a pupil in accordance with the requirements of Governmentregulations, there is no doubt that the act is one that he purports to doin his official capacity. There is no other capacity in which he can givesuch a certificate. Clearly therefore the mental process whether it bemalicious or otherwise which induced him to write the words “ Extremelybad ” against the cage “ Conduct ” is immaterial.
r The appellant is therefore entitled to succeed on this preliminary pointwhich learned counsel has placed at the forefront of his appeal.
. It is sufficient to refer to only two of the Indian cases cited at theargument, namely,- the case of Albert West Mead-s v. The King andGill another v. The King 2. In the former case it was held that a publicservant can only be said to act or to purport to act in the discharge ofhis .official duties if his act is such as would lie within the scope of-hisofficial duty. It was stated by Tore! Morton of Henry ton that the test,is whether the public servant if challenged can reasonably claim that,what he does he does in virtue of his office. In the course of his judgmentin the latter case Lord Simmonds in interpreting the words “ an offencealleged to have been committed by him while acting or purporting to actin the discharge of his official duty ” in section 197 (1) of the IndianCriminal Procedure Code stated :—
■" Their Lordships, while, admitting the cogency of the argumentthat in the circumstances prevailing in India a large measure of ’protection from harassing proceedings may be necessary for publicofficials cannot accede to the view that the relevant words have thescope that has in some cases been given to them. A public servant. can only be said to act or to purport to act in the discharge of hisofficial duty, if Lis act is such as to lie within the scope of his officialduty. Thus a Judge neither acts nor purports to act as a Judge inreceiving a bribe, though the judgment .which he delivers maybe such an act; nor does a Government medical officer act or purportto act as a public servant in picking the pocket of a patient whom heis examining, though the examination itself may be such an act.The test may well be whether the public servant, if challenged, canreasonably claim that, what he does, lie does in virtue of his office.”
. -In the instant case there is no doubt that what the appellant did heHid bv virtue of his office.
The appeal is allowed with costs.
Pox.i.13^ J.^—-I agree.
Appeal allowed,* (19JS) .4. I. R Privy Council 12-S,