056-NLR-NLR-V-53-EGRIS-Appellant-and-HAMID-SIMALI-Respondent.pdf
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HOSE O.J.—Egiris r. Hamid Ismail
1SS1Present: Rose C.J. and Choksy A.J.
EGRIS, Appellant, and HAMID SIM AIL, RespondentS. C. 70 (Inty)—D. C. Colombo, 23,656
Ceylon (Constitution) Order in Council, 194G—Proviso lo Section 14 (2)—Action forpenalty for sitting or voting in Parliament when disqualified—Limits ofdiscretion of Court to withhold leave to bring such action.
A Member of the House of Representatives may be sued a second time, bya common informer, for penalty under the provisions of Section 14 of theCeylon (Constitution) Order in Council, 1946, if the first action brought byanother plaintiff had been dismissed for want of appearance of the plaintiffand without consideration of the merits.
Leave to proceed with an action for penalty should not be refused by theDistrict Court except for sound reasons.
A PPEAL from an order of the District Court, Colombo.
H. W. Jaycwardene, for the plaintiff apjtellaut.
M. H. A. Aziz, for the defendant respondent.
Cur. adv. vuli.
December 14, 1951. Rosw C.J.-—
The plaintiff-appellant, a common informer, filed an action underSection 14 (2) of the Ceylon (Constitution) Order in Council, 1946, inthe District Court of Colombo for the recovery of a sum of Rs. 83,000by way of penalty from the defendant-respondent on the ground thatthe said defendant-respondent having reasonable grounds for knowingthat he was disqualified from sitting and voting as a member of theHouse of Representatives had continued to do so on the several datesset out in the schedule to the plaint.
The learned District Judge, purporting to act under the proviso tosub-section 2 of Section 14 of the said Order in Council, refused to givehim leave to the action being further continued.
"It appears that a similar action on the same facts, but covering inpart a -different period of time, had previously been brought by anotherplaintiff in the same court. This action was dismissed for want ofappearance and it was, therefore, unnecessary for the merits of theaction to be gone into.
It was the circumstance of this earlier action having been thus dis-missed that led the learned District Judge to refuse his leave for theplaintiff in the present matter to proceed further with this action.
The District Judge, of course, has a discretion in deciding whetheror not to withhold his leave under the aforesaid proviso, but if theexercises that discretion for reasons which appear to this court asunsound, then, in my opinion, it is our duty to intervene.
Samarasing he v. Pantuuara Thero
27.1!
It seems to me that the public interest in a matter of this type musttake precedence over the private convenience of a member of Parliament,and that the public interest requires that actions of this sort shouldhave the opportunity of being decided on their merits. Had theearlier action been dismissed after a consideration of the merits, then,no doubt, the position would have been different, but as the matterhas not yet been considered from that aspect by a court of law, I con-sider that the learned District Judge erred in withholding his leavefrom the plaintiff.
That being so, the appeal is allowed, the order of the learned DistrictJudge is set aside, and the matter is remitted to the District Court toenable the necessary leave to be granted. The appellant will havethe costs of this appeal in any event.
Choksy A.J.—I agree.
Appeal allowed..