041-NLR-NLR-V-51-GIVENDRASINGHE-Appellant-and-DE-MEL-Respondent.pdf
178
JAYETILEKE 8.P.J.—(Hvmdvasinghe. n. De Mel
1949Present: Jayetlleke S.P.J. and Basnayake J.
GIVENDRASINGHE, Appellant, and DE MEL, Respondent
S. V. 58—D. C. (Inly) Colombo, 10,474
Constitution Order in Council, 1946—Penalty for sitting and votingin Parlia-ment when disqualified—Vests in informer immediately he institutesaction—.Section 14.
The penalties referred to in section 14 (1) of the Ceylon (Constitution)Order in Council, 1946, beoome vested in an informer the moment heinstitutes his action and not when he applies for leave to proceed furtherunder section 14 (2).
.^^.PPEAL from a judgment of the District Court, Colombo.
H. V. Perera, K.C., with E. 6'. Wikramanayake and E. 0. F. de Silva,for plaintiff appellant.
S. B. Kumarakulasinghr., with T. A*. Curtis and .-1, I. Rajasingham,for second respondent.
Cur. adv. vuU.
Ootober 26, 1949. Jayetileke S.P.J.—
On May 6, 1948, the appellant presented a plaint against the firstrespondent claiming from him a sum of Re. 19,000 aa penalties undersection 14 of the Ceylon (Constitution) Order in Council, on the groundthat he sat and voted on 38 days in the House of Representatives asthe member for the Colombo South Electoral district, knowing or havingreasonable grounds for knowing that he was not at the time of his electionqualified to be elected by reason of his interest in a contract with theGovernment. The section reads :
14. (1) Any person who—
(<z) having been appointed or elected a member of the Senate orHouse of Representatives, but not having been, at the timeof such appointment or election, qualified to be so appointedor elected, shall sit or vote, in the Senate ot House ofRepresentatives, or
(6) shall sit or vote in the Senate or House of Representatives afterhis seat therein has become vacant or he has become dis-qualified from sitting or voting therein,
knowing, or having reasonable grounds for knowing, that he wasso disqualified, or that his seat has become vacant, as the case may be,shall be liable to & penalty of five hundred rupees for every day uponwhich he so sits or votes.
JAYET1LEKE S.P.J..—Qivendraeingke v. Dt Mel
179
The penalty imposed by the section shall be recoverable byaction in the District Court of Colombo, instituted by any person whomay sue for it:
Provided that no such action, having been instituted, shall proceedfurther unless the leave of the District Judge of the Court is obtained.
Where, after the institution of any action in pursuance of theprovisions of this section, no steps in pursuit of the action are takenby the person instituting the action for any period of three monthsthe action shall be dismissed with costs.
The District Judge perused the plaint and returned it to the appellantfor amendment as it did not specify the dates on which the first respondentwas a'leged to have sat and voted.
On May 27, 1948, the appellant presented a fresh plaint and movedfor a summons on the first respondent. The District Judge acceptedit and made an order that summons should not be issued until theappellant obtained leave under section 14 (2) to proceed further.
On July 23, 1948, the second respondent instituted action No. 19,474against the first respondent claiming the same penalties. In the prayerof his plaint he prayed that lie be granted leave to proceed with theaction. The District Judge accepted the plaint and ordered notice onthe appellant to show cause why his action should not be dismissed unlesshe proceeds further. On July 28, 1948, the appellant moved that hebe granted leave to proceed with his action. The second respondentopposed the application on two grounds: (1) that his application wasearlier in date, and (2) that the appellant's action was a collusive one. Theappellant filed an affidavit explaining his delay in applying to the Courtfor leave to proceed further. He stated that after he instituted thisaction a duly registered voter for the Colombo South Constituencypresented a petition to this Court under the Ceylon ParliamentaryElections Order in Council, 1946, against the return of the first respondentas member for the said constituency and he expected the inquiry intothe said petition to be over before the period fixed in section 14 (3) forhim to take steps expired. The District Judge took the view that theappellant’s explanation of the delay could not be accepted, and, even if itoould be accepted, the appellant had lost whatever rights he had to thepenalties by failing to apply for leave to proceed further under section14 (2) before the second respondent. He accordingly refused theappellant’s application. The appeal is against that order.
The main question that arises for consideration is whether the penaltiesbecame vested in the appellant the moment he instituted his action.The law on the point is very clear. In Orosset v. Ogilvit1 the House ofLords said that it is a known rule in law that on filing an informationthe informer has a right to the penalty vested in him. This principlewas accepted in a number of cases which are referred to in the case ofForbes v. Samuel2. In view of the provisions of section 14 (2) the vestingwould, of course, be subject to his obtaining the leave of the DistrictJudge to proceed further. Section 14 (3) gives him the right to make
« (1913) 3 K, D. 735.
5 Bro. P. C. 527.
180
Mark e. A. Q- A., Mannar
his application to proceed further at any time within three months ofhis filing the action. If he makes the application within three months theDistriot Judge is bound to consider it under section 14 (2). Section 14 (2)does not specify the grounds on which the District Judge would beentitled to refuse the application. In enacting the sub-section thelegislature, perhaps, intended that before allowing summons the DistrictJudge should satisfy himself that a prior action for the recovery of thesame penalty was not pending before him. However that may be, it isclear to us that in refusing the appellant’s application the learned DistrictJudge has acted on a misconception of the law that the penalties vestedin the informer not when he instituted the action but when he appliedfor leave to proceed further under section 14 (2).
We would accordingly set aside the order appealed against and sendthe case back for inquiry on the second objectiou taken by the secondrespondent. The appellant will be entitled to the costs of appeal andof the inquiry in the Court below.
Basnayake J.—I agree.
Order set aside