042-NLR-NLR-V-73-JAITHUN-UMMA-Appellant-and-H.-B.-SAMARANAYAKE-Respondent.pdf
Jailhun Umma v. Samaranayake
235
1969 Present: Sarnerawlckrame, J., and Pandita-G'unawardene, J.
JA1THUN UJDIA, Appellant, and H. B. SAMARANAYAKE,Respondent
5. 0. 3-56166 (F)—D. C. Kandy, D33S/MB
Delict— Wrongful seizure of property—Extent of liability for damages—Executionproceedings—Seizure of property which did not belong to judgment-debtor—Effect when owner of the property had acted in collusion with the judgment-debtor—Civil Procedure Code, s. 219.
* U93ff) 1. C- L. J. 14.
236 PAXD1TA-GUXAWARDEXE, J.—Jaithun Umma v. Sarr.aranayaLt
Defendant had, in an earlier action, caused tho Fiscal to seizo the house ofthe plaintiff in execution of a writ- obtained by him against tho plaintiff’shusband B. In tho present action tho plaintiff claimed damages from thodefendant on tho ground of wrongful scizuro of her properly. Tho cvidcncoshowed that tho plaintiff had induced a belief in tho defendant that tho housowhich was seized belonged to her husband B. The plaintiff had thus contributedin no small measuro to her house being seized by tho Fiscal.
Held, that tho plaintiff was not entitled to claim damages. “ Where itappears that tho party whose property has been seized hn3 in a manner led thojudgment-creditor to form n reasonable belief that the property belongs to thejudgment-debtor, ho cannot bo heard to complnin that tho scizuro was notauthorised.”«.
JRamanalhan Chctlij v. Mccra Saibo Marikar (32 X. Ii. R. 193) distinguished.
.A-PPEALi from a judgment of the District Court, Kandy.
G. Ranganathaii, Q.G., with IK. D. Gunasekera and M. T. M. Sivardeen,for the plaintiff-appellant-.
R. P. Goonetitteke, with G. Dahanayake, for the defendant-respondent.
Cur. ado. vult.
July 25, 1969. Paxdita-Gunawardexe, J.—
This is an appeal by the plaintiff from the judgment of the DistrictJudge, Kandy, dismissing her claim to damages in Rs. 10,000 for wrongfulseizure of her land, house, furniture and fittings in execution of a writagainst her husband Badurdeen in D. C. Kandy Case MR. S3S7.
The history of the matter is this. In 1960 the defendant agreed tocomplete the unfinished work of a house for the plaintiff’s husbandBadurdeen who represented to the defendant that he was tho owner(vide D. 1). On the completion of the work there was a sum of Rs. 2.4S1/71due to the defendant. Tito defendant filed .action against Badurdeenfor this sum ; and of consent decree was entered on 1.2.62 in favour ofthe defendant for Rs. 1,700 with a concession of six months for payment.Badurdeen neglected to satisfy the consent decree. Thereafter on 21.2.63the defendant moved the Fiscal to seize the property of Badurdeen(vide D8, D9 and DIO). The request to the Fiscal was to seize thebuilding, furniture and equipment; (the translation D9 is incorrect forthe original in Sinhalese which I have perused refers to the house onlyand not the land). Mistakenly the Fiscal had seized the land in additionto the house and its furniture.
The issues in the case are confined to the seizure of the house and itsfurniture and fittings. The seizure in regard to the land can therefore-be kept out of consideration.:
PAXDITA-GUNA WARDENS, J.—Jaithun Umma v. Samara nayake' 237
Admittedly the house, the subject of the seizure was on the land giftedto the plaintiff in 1950. The defendant’s contention however is thathe honestly believed that the house belonged to Badurdccn, the plaintiff'shusband ; and in that belief the seizure was effected.
The argument for the plaintiff was that the question of honest beliefdocs not arise. It was said that once the defendant caused the Fiscalto seize the house of the plaintiff upon a writ to seize the house of another,the plaintiff can recover damages without proof of malice. Reliancewas placed on the case of Ttamanathnn Chelty v. Meera Suibo J1Iarikur1.The facts of Jhat case were that the judgment-creditor {respondent totho .appeal) moved the Fiscal to seize certain quantities of tea belongingto a Firm which were at particular named premises. The applicationwas made on 22.G.25. But prior to this date, viz., 16.G.25 the Firmhad conveyed the tea to a third party (die appellant in that case) andthe third party had been debited with that amount in account; and inpursuance of an agreement between the Firm and the third party on1G.G.25 the tea had been removed to the premises named. It was atthese premises that the tea was seized by the Fiscal at the instance ofthe judgment-creditor. The third party successfully sued and obtaineddamages for wrongful seizure in the District Court.
The Sm>reme Court set aside the judgment of the District Judge.Appeal was then taken to the Privy Council where the judgment of theDistrict Judge was restored.
32 N. L. R. 193 contains the report of the judgment of the Privy Council.It is I think necessary to quote at some length from this judgment. LordRussell of Ivillowen who delivered tho Privy Council judgment said(ibid at pages 194 and 195) :
“ The basis of his (District Judge’s) judgment was that the respondenthad acted maliciously in causing the appellant’s goods to be seized,the malice being, in his opinion, established by the fact that therespondent-had intentionally made a false allegation in order to obtainthe issue of the warrant, viz., that the tea had been removed to SeaStreet after the insolvency.
The judgment of the District Judge was set aside in the SupremeCourt, and judgment was entered for 1 lie present respondent withcosts there and below. The foundation of the Supreme Court’sdecision was that no malice on the part of the present respondent hadbeen proved. In the opinion of tlicir Lordships the facts of thepresent case relieve the appellant from any necessity to establishmalice on the part of the respondent.
Assuming, in the respondent’s favour, that he had grounds forsuspecting the conduct of the firm and the appellant, and that inobtaining the issue of the search warrant be acted in good faith andwithout malice, nevertheless, the fact remains that he was the causeof the appellant’s property being wrongfully seized.
(1039) 31 N. L. R. 103.
238
PAXD1TA-GUXAIVARDEXE, J.—Joilhvn Umrna r. Samaranayakc
A distinction must, be drawn between nets done without judicialsanction and acts done under judicial sanction improperly obtained.If goods arc seized under a writ or warrant which authorized theseizure, the seizure is lawful, and no action will lie in respcct.of theseizure, unless the person complaining can establish a remedy by somesuch action as for malicious prosecution.
If, however, the writ or warrant did not authorize the seizure ofthe goods seized, an action would lie for damages occasioned by wrongfulseizure without proof of malice.
These propositions not only state the law of this country upon thesubject but they are supported by decisions in the Courts of countrieswhere the Roman-Dutch law prevails.
Authorities of this class which may be referred to are J fart v. Cohen,a decision of the Supreme Court of the Cape of Good Hope, and DeAlwis v. Murugappa Chetly, a decision of the Supreme Court of Ceylon.
In the case before the Board, once it was- shown as it has been totheir Lordships’ satisfaction, that the respondent was the cause of. the appellant’s goods having been seized by the Fiscal under a warrantwhich only directed him to seize property of the firm, the case againstthe respondent was complete, and lie became liable to the appellantin damages without proof of malice.”
Learned Counsel contended that the case cited, the 32 N. L. R. case,if I may so refer to it, is on all fours with the present case : and as thewrit did not authorise seizure of the house seized, an action for damageslay without proof of malice. A close examination of the facts of thiscase and a comparison with the facts of the 32 N. L. R. case relied uponby counsel shows that there is a difFerenc-e of a fundamental nature.
In this case there is evidence accepted by the learned District Judgethat the plaintiff’3 conduct coupled with document D1 would havereasonably induced a belief in the defendant that the house belonged toBadurdeen.
The defendant’s evidence is that D1 was given by Badurdeen : theplaintiff was present at the time and she advanced Rs. 500 to commencefclie work. D1 is in the following terms :
“ I, Alohamed Badurdeen of Illukwatte, Kadugannava, the ownerof the uncompleted building situated at Illukwatte, Kadugannawado hereby entrust Mr. H. B. Samaranayake of Illukwatte,Kadugannawa to complete the unfinished work and for which workI do hereby promise and undertake to pay him after the completionof the work and have this day paid him a sum of rupees five hundredonly (Rs. 500).
Sgd. Illegibly(on ten cent stamp).
PAXDITA-GUXAWARDENE, J.—Jaithun Umma v. Samaranat/ale
239
Defendant further stated that Badurdeen used to inspect the uork oncea week. The proctor’s clerk who prepared Dl corroborated t lie defendant.Tho plaintiff denied that Dl was signed by her husband Badurdeen inher presence. Sho also denied the payment of Rs. 500 and that sheagreed to pay Rs. 1,500 for the completion of the work. She addedthat until the day of the seizure she was unaware of a case between thedefendant and her husband where judgment was entered against herhusband for 11s. 1,700. At the claim inquiry following the seizure, theplaintiff had given an entirely contrary version. At the claim inquiryshe admitted the payment of Its. 500 (D2); and that she had agreed topay Rs. 1,500 (D3). She further added that her husband and shesupervised the construction work (D5).
The learned District Judge lias rejected the plaintiff’s evidence andhas in my opinion rightly concluded, ” It was not unreasonable for thedefendant to be under the impression that although the land belongedto the plaintiff, her husband was the actual owner of the house as statedin Dl.”
It has been submitted for the plaintiff that once Baduiclecn deniedthat he' owned any property on being examined under Section 219 oftho Civil Procedure Code, the defendant should have made inquiry inrespect- of the ownership of the house before any further step was takenby him. I am not prepared to accept this submission. Dl clearlydescribes Badurdeen as the owner of the house. It was signed in thepresence of the plaintiff who cannot plead ignorance in regard to it.The defendant was entitled to consider the statement in Dl as adequatewithout further inquiry.
In this state of the facts as found by the learned District- Judge whosefinding I see no reason to disturb, I cannot- say that the defendant wastho cause of the plaintiff’s house being seized by the Fiscal.
The plaintiff herself could in the circumstances of this case, be saidto have contributed in no small measure for the defendant’s actionin seizing the house. This is the important difference between the32 N. L. It. case and the present case.
It is my opinion that upon a fair construction of the facts of a casewhore it appears that the party whose property lias been seized, hasin a manner led the judgment-creditor to form a reasonable belief thatthe property belongs to the judgment-debtor, he cannot be heard tocomplain that the seizure was not authorised.
Much was attempted to be made of the fact that the plaintiff s housewas “invaded” on the last day of the Ramzan fast and the day beforethe Ramzan festival; that this was deliberately done in order to causehumiliation to the plaintiff, a Muslim lady. There is no evidence tosubstantiate tho suggestion that the defendant fixed this day on purpose.
2401’A X D IT A-G UX A U’A R D I£ X E, .7.—.Jailhun L'nimn r. Snmnronnyafcc
According to lire defendant this was the day arranged br the Fiscaland he accompanied the Fiscal. The only comment that can be madeis that it was imforttmatc that this day so coincided with the Ramzanfast.
In the view I have taken there can be no question of a wrongful actin derogatory of the rights of the plaintiff on the part of the defendant.Realistically speaking “ the boot is on the other leg.” For the reverseseems to be the truth.
The conduct of the plaintiff indeed appears to me to be conduct wantingin honourand integrity, and I regret to say indicativc of a disposition todefraud the defendant of what is justly due to him. Plaintiff and herhusband Badurdecn bare joined hands to enrich themselves unjustlyat the oxjicnse of the defendant.
For these reasons which I have endeavoured to state, (lie appealis dismissed with costs.
SAMERAWICKKA3IE, J.1 agree.
Appeal dismissed.