Dulfa TJmma v. Urban District Council, Matale.
1989Present: Abrahams C.J.
DULFA UMMA et al. v. URBAN DISTRICT COUNCIL,MATALE.
172—C. R. Matale, 4,737.
Urban District Council—Notice of action given by some plaintiffs only—Rightto continue the action—Notice given to Chairman and not Secretary—Validity of notice—Form of notice—Local Government Ordinance,ss. 228 and 230.
Where an action was brought against an Urban District Council byseveral plaintiffs, some of whom had given notice of action and the othershad not, the former may be allowed to continue the action in respect oftheir claim alone.
A communication addressed to the Chairman of the Urban DistrictCouncil and received and considered by the Council is a valid notice ofaction under section 230' of the Local Government Ordinance, althoughit had not been addressed to the officer authorized by section 228 of theOrdinance to receive notices.
It would be a sufficient notice of action if it stated properly the injurycomplained of and disclosed an intention to bring an action, claimingspecified relief.
ABRAHAMS CJ.—Dulfa Umma v. Urban District Council, Matale.475
PPEAL from a judgment of the Commissioner of Requests, Matale.
H. Aluwihare, for the plaintiffs, appellants.
E. S. Perera (with him S. N. B. Wijeyekoon), for the defendant,respondent.
Cur. adv. vult.
January 31, 1939. Abrahams C.J.—
This case has been admirably argued by Counsel on both sides, thoughthe points taken were mostly of a highly technical nature. The appellantsin this case brought an action against the Urban District Council of Matalefor recovery of the sum of Rs. 286.75 damages, sustained by reason ofthe respondents having demolished a cement pavement and havingencroached upon a piece of land belonging to the appellants for thepurpose of constructing part of a public road.
« Under section 230 of the Local Government Ordinance, No. 11 of 1920,no action shall be instituted against a District Council for anything doneor intended to be done under the powers granted by the Ordinance or byany by-law or regulation made thereunder until the expiration of onemonth next after notice in writing shall have been given to the Council,stating with reasonable certainty the cause of such action and the nameand place of abode of the intended plaintiff and of his proctor or agent,if any, in the cause.
On November 23, 1937, the plaint was filed. On August 30 of the sameyear, Mr. Sallay, Proctor, wrote the following letter to the Chairman ofthe Urban District Council, Matale : —
“ Dear Sir,—My clients, Dulfa Umma, Abdul Sattar, and M. M.Haniffa (the latter as father and natural guardian of the minors, AbdulSakkur and Abdul Rahouf ), the owners of all those houses and premisesbearing assessment No. 12, Taralanda Road, Matale, complain thatsome workmen of your Council without any intimation to them diddemolish a pavement in extent 50 ft. by 3 ft., built opposite the saidhouses with bricks and cement, and build a drain taking in the saidportion of pavement and also a portion of bare land, of the total extentof 97 ft. by 3 ft. My clients complain that their tenants in occupationof these houses are greatly aggrieved at the demolition of the saidpavement, and have given notices to quit the said houses.
My clients are very greatly aggrieved that this arbitrary and high-handed method should have been adopted in this connection, especiallybecause at the time the road was first widened a large portion of thesaid land was given to the Council without compensation.
My clients estimate the damages sustained by them at Rs. 500 andinstruct me to demand the same from your Council, with furtherinstructions to sue your Council in default of payment for the recoveryof the same with costs of suit.
I shall thank you for an early reply.
(Sgd. M. Y. Sallay,
Proctor, S. C."
476ABRAHAMS C.J.—Dulfa Umma v. Urban District Council, Matale.
and on September 8, Mr. Sallay followed up this letter by another in thefollowing terms: —
Premises No. 12, Taralanda Road.
“ Sir,—Yours of the 4th instant, in reply to mine of the 30th ultimois duly to hand; and the contents of the same were duly conveyed tomy clients. My clients take exception to the bitter adjectives employedby you—! exacting ‘ silly ’>‘ preposterous‘ absurd ’,‘ want to
drink the blood of the Council &c.,—and say that you are only adding. insult to the injury already committed by you in most arbitraryfashion.
They therefore instruct me to give you notice in terms of section 641of the Civil Procedure Code that an action will be instituted againstyou for the recovery of Rs. 300 (restricted damages) caused to themby your demolishing without any notice to them of the cement pave-ment 53 ft. by 3 ft., built with bricks and foundation, opposite theirhouses bearing assessment No. – 12, Taralanda Road, by the misappro-> priation of the bricks and foundation stones used for building the saidpavement, and the encroachment and wrongful appropriation of anextent of 97 ft. by 3 ft. out of their land Polwatte. My clients statethat by the destruction of the pavement the value of their houses liasbeen prejudicially affected.
The above would constitute the causes of the action, which my clients. instruct me to file at the expiration of a month from this notice, unlessyou have the fairness to admit the wrong inflicted by you and pay themthe damages due.
My clients, as already stated in letter of the 30th ultimo, are—(1) Dulfa Umma, (2) Abdul Sattar, arid S. M. M. Haniffa of No. 633,Trincomalie Street, Matale.
(Sgd.) M. Y. Sallay,
When the case was called a preliminary objection was taken on behalfof the Council to the effect that due notice in terms of section 230 of theLocal Government Ordinance had not been given. The plaintiffs con-tended that the letter of August 30, was a sufficient compliance with thesection. On the other hand it was contended for the Council that as theminor Abdul Faroof (third plaintiff in the plaint) had not been mentionedin the notice, compliance had not been made with the section, which itwas argued, demanded that the name of every intending plaintiff shouldbe stated with reasonable certainty. The proctor for the plaintiffsappeared to realize the difficulty which existed, for he moved to deletethe name of the third plaintiff from the plaint and to reduce the amountof the claim to Rs. 250.91. This the learned Commissioner refused topermit. In his judgment he agreed with the contention put forward onbehalf of the Council that the notice did not comply with the section,namely, in that the third plaintiff’s name had been omitted. He went onto say that he did not permit the amendment asked for because to do so“ would have altered the whole character and scope of the action and
ABRAHAMS C J.—Dulfa Umma v. Urban District Council, Matale. 477
would not have been permitted He said that as the notice did notcorrectly set out the persons claiming relief he held that it was not a duenotice as required by law, and he dismissed the plaintiffs’ action withcosts.
It has been argued on behalf of the appellants that first of all the realplaintiff is Haniffa, the natural guardian of the three minors. That is anargument that I have no difficulty in rejecting. The father in this casecannot be the plaintiff because he himself claims no rights nor have anywrongs been done to him, and the law does not enable a minor to institutea suit himself but somebody must do it on his behalf. It is also arguedthat even if the minor Faroof is a plaintiff the required information hasbeen given with reasonable certainty, because in the letter of September 8,it is mentioned that Haniffa is one of the clients. It is further arguedthat there has been a substantial compliance with section 230 becauseeven if Abdul Faroof is a plaintiff no difference will be made by leavingout his name, considering that Haniffa was mentioned in his capacity asguardian. I fail to follow that argument because in spite of the fact thatHaniffa is only a guardian, it is certainly desirable that the Council shouldhave known the number of people whose rights it was alleged to haveinfringed, as it might have desired to meet the demand made upon it,and the omission of one of the minors from the notice would not haveprecluded an action being brought on his behalf at a subsequentdate.
It was argued for the Council that the notice was bad as regards every-body mentioned in it because according to the terms of section 228 of theOrdinance the notice should have been sent to the Secretary whereas itwas directed to the Chairman. I have no difficulty in rejecting thatargument because the section states that the notice may be received bythe Secretary of the Council, and that does not satisfy me that a communi-cation directed to the Chairman, as in this case, and obviously receivedand considered by the Council, ought to be regarded as invalid because itis addressed to an officer of the Council not authorized to receive it.
Then it was contended that the letter of August 30, was not a propernotice but might be taken rather as a threat of criminal proceedings whichwould leave the door open to negotiation between the parties. Insupport of this argument I was referred to Norris v. Smithwhich ledme to the consideration of Lewis v. Smith Both these cases are distin-guishable from this case on the facts. I do not think that one shoulddemand a particular form of words for a notice. The question' as to.whether there was an actual notice of the intention to institute an action,should be decided by seeing whether the injury complained of is properlystated, and an intimation disclosed that an action will be brought claimingsome specified relief. The fact that the communication states that theaction will be instituted unless the claim is met does not I think remove itfrom the category of notices to place it in the category of a mere letterof courtesy, the writing of which indicated that negotiations for a recti-fication of the wrong are expected. Mr. Aluwihare said very aptly that• 10 Ad. .f El. 188.2 Holt.
Mohamed Mustapha v. Ibrahim Alim.
both the letters from the plaintiffs’ proctor merely contain specificallywhat they otherwise would contain impliedly, since the defendant canalways prevent the action by payment of the demand made.
In my opinion the notice is not bad as regards those plaintiffs who arementioned therein- The question arises as to whether the learnedCommissioner was wrong in refusing to permit an amendment of theplaint in the manner sought by the plaintiffs’ proctor, that is by thedeletion of Abdul Faroof’s name and the consequential reduction of theclaim for damages. I am quite unable to understand what the learnedCommissioner means when he says that the amendment sought wouldhave altered the whole character and scope of the action and would nothave been permitted. It has not been shown to jne how the Councilwould have been prejudiced had the amendment been permitted nor hasany authority been cited to me in support of the refusal. It seems „tome that to deprive the other plaintiffs of their cause of action merelybecause by some slip the name of Abdul Faroof was not inserted in the;notice would be a grave injustice. Of course compliance with the provi-sions of section 230 is necessary, and non-compliance with respect to anyparticular plaintiff disables him from joining in the action brought bythe others, whatever may be his rights to bring an action separately andsubsequently. But that is a very different thing from disqualifying therest of the parties on account of a tiny error made as regards one ofthem.i
It happens, perhaps too frequently in this Court, that the languagewhich the Legislature has chosen to employ in .enacting certain rules ofprocedure compels the Court in applying the principles of constructionto hold that non-compliance with a rule is fatal to an action. But I seeno such compulsion on me in this case. Civil procedure should be avehicle which conveys a litigant safely, expeditiously and cheaply alongthe road which leads to justice, and not a juggernaut car which throwshim out and then runs over him leaving him maimed and broken onthe road.
This appeal must be allowed with costs. I set aside the judgment andorder the case to proceed in .due course.
DULFA UMMA et al. v. URBAN DISTRICT COUNCIL, MATALE