DIVISIONAL FOREST OFFICER v. SIRISENA

006-SLLR-SLLR-1990-V-1-DIVISIONAL-FOREST-OFFICER-v.-SIRISENA.pdf


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(1990} 1 Sri LR.
Sri Lanka Law Reports
DIVISIONAL FOREST OFFICER
v.SIRISENA
; COURT OF APPEAL, .
W1JETUNGA, J. AND ANANDA COOMARASWAMY, J.
A. APPLICATION No. 64/88/LG.,
C. TANGALLE No. 8592/MJANUARY, 19 AND 25, 1989.
Forest Ordinance Sections 30 (1)(d), 31,32(1) and 33(1}- civil Procedure Code s. 46(2)(ij Claim to timber seized by Flying Squad of Forest Department -Confiscation of timber-Appeal from Order to confiscate-Time bar to filing plaint-Plaint barred by. positive rule oflaw:
'Suit.against person nomine officii".
The Flying Squad ot the Forest Department took into custody from the plaintiffs posses-sion 265 pieces of timber said-to be unmarked. By notice dated 18.2.1980 the DivisionalForest Officer notified the plaintiff under s. 31 of the Forest Ordnance that the timber hadbeen taken into custody under s. 30 (1) (d) of the Forest Ordinance and required him topresent his claim to the timber within one month. The plaintiff lodged his claim on
and an inquiry was held on 27.3.1980. The Divisional Forest Officer informedthe Forester (Flying Squad) with a copy to the plaintiff that the timber was confiscated. On
(according to plaintiff) he appealed to the Conservator of Forests and he by letterdated 17.4.1980 declined to interfere. On 16.5.1980 he filed the present plaint against the-Divisional Forest Officer.
Raid:
Under s. 33 (1) of the Forest Ordinance a person whose claim has been rejected unders. 32 may within one month from the date of the rejection institute a suit to recoverpossession of the timber claimed. Here the suit was filed after the lapse of one month andwas therefore barred by a positive rule of law and should have been rejected as providedin s. 46 (2) (i) of the Civil Procedure Code.
Failure of the Court to reject a plaint at the time of presentation where the cause of actionis barred by a positive rule of law does not prevent the Court from rejecting the plaint laterwhen the defect is subsequently brought to its notice. Nor is the defendant estopped by theiearlier acceptance of the plaint from seeking the rejection of the plaint later;
The Divisional Forest Officer is not a legal person and cannot be sued nomine officii butthis defect may be overcome by amendment.
Case* referred to:
Read v. Samsudin 1NLR 292, 295
Soysa v. Soysa 17 NLR 118
CA
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Divisional Forest Officer v. Sirisena
' (3) Aw» Umwa v. Casinader 24 NLR 199'.
Ratnam v. Dheen 70 NLR 21
The Land Commissioner v. Ladamuttu PSIai$2 NLR 1/
Singho Mahatmaya v. The Land Commissioner 66 NLR 94
APPEAL from judgment of District Judge of Tangalle.
Salim Mahsoof SSC with Nizam Kariapper S. C.'-for Defendant-Appellant
N.R.M. Datuwattd P.C. with Mrs. Charuriita Wijesinghe Pradeep Keerathsinghe arid'A. L. M. Heiyanthuduwa for Plaintiff-Respondent.
Cur. adv. iiulL
August 25.1989.
VVI jETlINGA, J.
Forest Ordinance seeking a declaration that he was entitled to possessthe timber seized by the Defendant in terms of section 30. (1) (d) of theForest Ordinance and for an order of Court directing the Defendant todejiver possession of the said timber to him.
The Defendant filed answer staling inter alia that the plaint was bad inlaw, inasmuch as the plaintiff had failedto comply with section 33 of theForest Ordinance and also as the Defendant had been cited nomineofficii.
When the matter was taken up for trial, learned State -Counselappearing on behalf of the Defendant moved for the rejection of the plaintin terms of section 46(2) (i) of the Civil Procedure Code, as the Plaintiffhad not instituted the action within one month from the date of rejectionof his claim to the timber, after inquiry held in terms of section 32 of theForest Ordinance.
State Counsel further moved that the Defendant be struck out from theproceedings in terms of section 18" (1) of the Civil Procedure Code,inasmuch as he had been cited nomine officii.
– At the conclusion of the submissions, the learned District Judge madehis order dated 30.5.1983 holding that —
the copy of the letter issued by the defendant to the plaintiffintimating the confiscation of the timber, after inquiry underSection 32 of the Forest Ordinance, was irregular,
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(1990] 1 Sri,
although it had been contended that the Defendant had be<cited nomine officii proxy had been filed of record by the Csional Forest Officer Kariyawasam Jalath Tantiri Dayanannand
as his predecessor in office had accepted the plaint, the Co:was estopped from rejecting the plaint at this stage
and refused the applications of the Defendant.
It is from this order that the Defendant-Appellant has obtained ie.-elto appeal to this Court.
The plaint filed on 16.5.1990 avers that on 24.1.1980 officers ofFlying squad of the Forest Department took into custody from i.Plaintiff ’s possession 265 pieces of timber, said to be unmarked. B .notice dated 18.2.1980, the Divisional Forest Officer. Southern Divisaivacting under the provisions of Section 31 of the Forest Ordinance. notiitorthe Plaintiff that the said timber had been taken into custody under-provisions of section 30(1) (d) of the said Ordinance and requiredPlaintiff to present to such officer within a period of one month a wrmstatement of such claim. The Plaintiff claimed the timber by. writing ds .26.2.1980. Thereafter an inquiry was held on 27.3.1980. The Defenoinformed the Forester (Flying Squad) Galle with a copy to the Plaintiff,.the timber had been confiscated. The Plaintiff states that he presentedappeal on 7.4.1980 to the Conservator ot Forests againt that deci*.and that the Conservator of Forests, by a letter dated 17.4.1980, informhim that no decision contrary to that of the Divisional Forest OffiitlSouthern Division could be taken. It is thereafter that the Plaintiff had tthis action on 16:5.1980.
Section 33 (1) of the Forest Ordinance provides that—
“Any person whose claim has been rejected under section 32
within one month from the date of such rejection, institute a su.
recover possession of the timber claimed by him
The procedure to be followed in regard to a claim preferred in res;of timber which has been deemed to be the property of the State uisection 30 is laid down in section 32.
CA
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Divisional Forest Officer v. Sirisena (Wijetunga, J.)
Section 32 (l)piovidesthat—
. . the forest officer may, after making such inquiry
as he thinks fit, efther reject the claim efter recording his reasons forso doing, or deliver the timber to the claimant."
the Forest Ordinance does hot provide for an appeal from the decisionof the Forest Off icer regarding a claim preferred in respect of such timber,but makes provision in section 33 (1) for any personwhoseciaim hasbeen so rejected to institute a suit to recover possession of the timberclaimed by him within one month from the date of stjch. rejection. ThePlaintiff’s purported appeal to the Conservator of Forests, therefore, hasno basis in law.
Learned Senior State Counsel submits that the plaint in this case,mothaying been filed within one month from the date of such rejection, wasbarred by a positive rule of law ahd should have been rejected. He refersto section 46 (2) (i) of the Civil Procedure Code which provides that whenthe action appears from the statement in the plaint to be barred by anypositive rule of law, the plaint shall be rejected.
.. The plaint in the instant case is datedt 6.5.1980. The date of rejectionOf the Plaintiff's claim.being 27.3.1980. the plaint is clearly beyond onemonth from the date of such rejection. As was mentioned,eariier. iheOrdinance does not provide foran appeal from the decision of the ForestOfficer. Therefore, the Plaintiffs appeal to the Conservator of Forestsdated 7:4.1980 is of no force or avail in law. The action has thus not beeninstituted in conformity with the provisions of section 33 (1) of the ForestOrdinance. What remains to be decided is whether the plaint should,therefore, have been rejected under section 46 (2) (i) of the CivilProcedure Code.
In Read v. Samsudin, (I) it has been stated that “if the plaint is detectivein some material points, and that appears on the face of the plaint, but bysome oversight the Court has omitted to notice the defect, then theDefendant, on discovering the defect, may properly call the attention ofthe Court to the point, and then it will be the duty of the Court to act as itought to have,done in the first instance, either to reject the plaint or toreturn it to the Plaintiff for amendment.”
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11990] ’ SriLR.
In Soysa v. Soysa (2) which followed the decision in Read v.Samsudin, it has been held that if on the footing of the averments in aplaint the claim made therein is clearty prescribed, the claim is liable to bedismissed without evidence being gone into or consideration of theaverments in the answer.
Again in Awa Umma v. Casinader, (3) where the plaint did not allegeanything on the face of it which gave it jurisdiction and the Court by anoversight omitted to notice the defect and accepted the plaint, and wherethe attention of the Court was called to the point by the Defendant, it hasbeen held that the Court ought either to reject the plaint, or to return it tothe Plaintiff for amendment.
In Ratnam v. Dheen, (4) where the action was one which appearedfrom the statement in the plaint to be barred by a positive rule of law, it hasbeen held that in terms of section 46 (2) (i) of the Civil Procedure Codethe plaint should have been rejected. In that case, the Court was dealingwith the provisions of the Rent Restriction Act under which the landlordof any premises to which the Act applied was not entitled to institute actionor proceedings for the ejectment of a tenant on the ground that rent wasin arrears unless he had given three month's notice of termination of thetenancy and unless the tenant had failed to tender to him the arrears. Itis this provision which was held to be a positive rule of law by which theaction was barred.
Learned President’s Counsel for the respondent drew our attention tosome of the Indian decisions relating to Order 7 Rule 11 (d) of the IndianCivil Procedure Code, which lays down that the plaint shall be rejectedwhere the suit appears from the statement in the plaint to be barred by anylaw, a provision somewhat similar to section 46 (2) (i) of our CivilProcedure Code.
In A. I. R. 1928 Oudh 493, it has been held that where a suit is not onthe face of it barred by any law but proceeds to the stage of arguments,the suit should be dismissed and the plaint should not be rejected underRule 11.
Again, in A. I. R. 1961 Punjab 278, it has been held that the provisionsof Order 7 Rule II (d) of the Civil Procedure Code had no applicationbecause there was no statement in the plaint from which it could appearthat the suit was barred by any law.
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CADivisional Forest Officer v. Sirisena (Wijetunga, J.j
The Indian decisions referred to by learned President's Counsel do notaffect the instant case, as it appears from the plaint of the present actionthat the action has been instituted beyond the period of limitation fixed,under the Statute.
On a consideration of the authorities cited and applying those prin-ciples to the facts of the instant case, J artt of tjjteview.that this action wasbarred by a positive rule of law, viz. the provisions.of section -33 (1) of theForest Ordinance and the»plaint should,-therefore, have been rejected/
The otherground on which the Appellant relied was that the Defendantto this action was not a legal person and that the action could, therefore,not have been maintained against the Defendant named in.the plaint. Asis evident from the plaint, the Defendant has been described as theDivisional Forest Officer, Southern Division, Galle. It is submitted that theDefendant so described is not a statutory functionary who could be suedas a Corporation Sole. In The Land Commissioner v. Ladamuttu Pillai (5)-it has been held by the Privy Council that the Land Commissioner is nota Corporation Sole. So also, in Singho Mahatmayav. The Land CommiSrstoner. (6) the Supreme Court has held that the Land Commissionercannot be regarded as a Corporation Sole and, therefore, cannot be suednomine officii.
As the party to an action should be either a natural or a legal personand as the Divisional Forest Officer, Southern Division, Gaiie does notfail into either category, it is submitted that the Defendant who had beencited nomine officii as a party to the action should have been struck outunder section 18 (1 ^ of the Civil Procedure Code. However, learnedSenior State Counsel concedes that it was open to the Court to havereturned the plaint for amendment and that the plaint need not necessar-ily have been rejected at that stage on this ground. While this would bethe correct legal position, it is important to bear in mind the provisions ofsection 456 of the Civil Procedure Code regarding actions by or againstthe State and of section 461 thereof relating to the period of notice inrespect of such actions.
. It seems to me that the learned District Judge was in error when he tookthe.view that he was estopped from rejecting the plaint under section 46
(i) of the Civil Procedure Code at that stage as the plaint had beenaccepted by the Court earlier. As the authorities referred to above clearly
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Sri Lanka Law Reports[1990} 1 Sri L.R.
indicate, once the matter is brought to the notice of the Court, it iscompetent for theCourt to make an appropriate order, as when the matte rwould have come to. its notice at the stage when the plaint wasentertained:
In regard to this defendant being sued nomine officii, the learned; District Judge could have permitted an amendment of the plaint and neednot necessarily have rejected the same. But, as the Appellant is entitledto succeed on the first ground, namely, that the action was barred by apositive rule of law, the second ground on which the Appellant relied doesnot affect the ultimate decision of this case. I would, therefore, set asidethe order of the learned District Judge dated 30.5.1983 and make orderthat-the-plaint be rejected under section 46 (2) (i) of the Civil Procedure-Code.
The appeal is allowed with costs.
ANANDA COOMARASWAMY, J. —I, agree.
Appeal allowed.