005-SLLR-SLLR-2006-V-3-KAMBURUGAMUWE-SUMANARATHANA-THERO-vs.-MILTON-MENDIS.pdf
CA
Kamburugamuwe Sumanarathana Them vs.
Milton Mandis
31
KAMBURUGAMUWE SUMANARATHANATHEROVS.MILTON MENDISCOURT OF APPEAL,
SOMAWANSA.J (P/CA)
WIMALACHANDRA. J.
CA 263/2004.
DC PANADURA2826/SPI.
AUGUST 15, 2005.
SEPTEMBER 7, 2005.
Pradeshiya Sabha Act – Sections 214(1),214(2),-Notice on the PradeshiyaSabha – Is it imperative ? – Civil Procedure Code – Section 461(A) -Applicability of provisions of the Civil Procedure Code ?- Failure to complywith Section 214(1) Pradeshiya Sabha Act,- Can it be cured by recourseto Section 461(A) – Civil Procedure Code ?
HELD:
Failure to send notices under section 214(1) of the PradeshiyaSabha Act is fatal. Plaintiff cannot file action against a PradeshiyaSabha until and unless a period of one month has lapsed from thedate of the said notice in section 214(1).
The statutory requirement found in section 214(1) is mandatory:failure to give notice, is fatal.
Vhe Pradeshiya Sabha Act, has not provided a procedure where nonotice has been given under Section 241(1). The Pradeshiya Sabhais not a component or part of the State.
Section 461 of the Civil Procedure Code applies when an action isinstituted against the Attorney General as representing the State oragainst a Minister or Deputy Minister or a public officer in respect ofan act done in his official capacity.
Provisions in section 214(1) cannot be compared with section461(A) and 461(A) cannot be confined to cure the defect where nonotice has been given in terms of section 214(1).
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Per Wimalachandra. J :
“It is my considered view that the learned District Judge has erred inlaw in holding that, provisions of section 461(A) of the Civil ProcedureCode could be applied where no notice as required by section 241(1) hasbeen given prior to the institution of the action and the defect could berectified by allowing the plaintiff to have recourse to section 461(A)".
APPLICATION for Leave to Appeal from an order of the District Court ofPanadura.
Saliya Peiris with C. Madanayaka for petitioner.
Koggala Wellala Bandara for plaintiff-respondent.
Dushyantha Samarasinghe for defendant-respondents.
Cur.adv. vult.
June 02, 2006.
WIMALACHANDRA, J.
This is an application for leave to appeal filed by the 6th defendant-petitioner from an order of the learned District Judge of Panadura dated
Briefly, the facts as stated in the petition are as follows :
The plaintiff-respondent (plaintiff) filed an action bearing No. 2826/Spl in the District Court of Panadura against the 1 st to 6th defendant-respondents inter-alia for a declaration that the 6th defendant has nolegal right to effect constructions on the land described in the scheduleto the plaint and a permanent injunction against the defendants fromcarrying out any constructions on the said land described in theschedule to the plaint. The plaintiff also sought an interim injunctionpreventing the defendants from constructing ten toilets on the landdescribed in the schedule to the plaint.
When the case was taken up for trial on 06.05.2004, issues wereframed by both parties and after they were accepted by Court, theparties agreed that issues 18(1), 18(2), 18(3) and 19 be taken up as
CAKamburugamuwe Sumanarathana Them vs.33
Milton Mendis (Wimalachandra, J.)
preliminary issues of law in terms of section 147 of the Civil ProcedureCode. Those issues read as follows:
Issues No. 18(1) : Have the notices under section 214(1) ofthe Pradeshiya Sabha Act, not been issued ?
No. 18(11) : Has the plaint not been filed in terms ofsection 214(2) of the Act ?
No. 18(111): Is this action filed against the officers or
the members of the Pradeshiya Sabha intheir personal capacity and contrary tosection 215(1) of the said Act ?
No. 19 : If the answer to issues 18(1), 18(2) and18(3) are answered in favour of thedefendants should the plaint be dismissedin limine ?
Thereafter the parties agreed to file written submissions and invitedthe Court to make its order on the written submissions filed.Accordingly, the parties filed their written submissions and on
the learned District Judge delivered the order.
In his order dated 07.07.2004 the learned District Judge had heldthat though the plaintiff had failed to give notice under section 214 ofthe Pradeshiya Sabha Act, the plaintiff can give notice to the defendantsin terms of section 461 (A) of the Civil Procedure Code and thereby thefailure to give notice under section 214 of the Pradeshiya Sabha Actcould be cured. Accordingly, the learned Judge had stayed furtherproceedings of the action and ordered the plaintiff to pay costs to thedefendants.
The question that arises for determination is, whether the failure tosend notices under section 214 of the Pradeshiya Sabha Act is fataland if so whether such failure could be cured by sending the noticessubsequently under section 461 (A) of the Civil Procedure Code.
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Section 214(1) of the Pradeshiya Sabha Act states as follows :
“No action shall be instituted against anyPradeshiya Sabha or any member or any officerof the Pradeshiya Sabha or any person actingunder the direction of the Pradeshiya Sabha for
anything doneuntil the expiration of one
month next after notice in writing shall have beengiven to the Pradeshiya Sabha or to thedefendant, stating with reasonable certainty thecause of such action and the name and place ofabode of the intended plaintiff and of his Attorney*at-Law or agent, if any, in such action.”
In terms of section 214(1) of the Pradeshiya Sabha Act the plaintiffcannot file action against a Pradeshiya Sabha until and unless a periodof one month has lapsed from the date of such notice mentioned in theaforesaid section 214(1). It appears that the law has provided for thePradeshiya Sabha to have one months notice of the action to be filedby a party against it, to provide sufficient time to obtain appropriatelegal advice and to take whatever step the Pradeshiya Sabha considersnecessary.
In these circumstances the question that arises is whether theprovisions in section 214(1) of the Pradeshiya Sabha Act are imperativeor only directory. In this regard “Maxwell on The Interpretation ofStatutes” 12th edition at pages 314, 315 states as follows :
“It is the duty of Courts of Justice to try to get atthe real intention of the legislature by carefullyattending to the whole scope of the statute to beconstrued. And Lord Penzance said : I believe asfar as any rule is concerned, you cannot safelygo further than that in each case you must look tothe subject matter ; consider the importance ofthe provision that has been disregarded and therelation of that provision to the general objectintended to be secured by the Act ; and upon a
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Kamburugamuwe Sumanarathana Them vs.
Milton Mendis (Wimaiachandra, J.)
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review of the case in that aspect decide whetherthe matter is what is called imperative or onlydirectory.”
The object of the provisions of the section 214(1) of the PradeshiyaSabha Act is to provide an opportunity to the person concerned, byway of written notice, to know the cause of such action and the nameand address of the intended plaintiff and of his Attomey-at-Law or agent,if any, in such action. Therefore it will be seen that the provisions ofsection 214(1) of the Pradeshiya Sabha Act casts a specific duty toserve notice on those entitled to such notice under the provisions.This is to afford an opportunity to the person mentioned in the sectionto consider his position in regard to the claim made by the intendedplaintiff.
In these circumstances, I am of the view that the statutoryrequirement found in section 214(1) of the Pradeshiya Sabha Act ismandatory. In my view the aim and object of the provisions of section214(1) would be defeated if it is disregarded. Generally, enactmentsregulating the procedure are imperative.
The next question to be considered is whether the failure to givenotice in terms of section 214(1) of the Pradeshiya Act is fatal andwhether it could be cured by resorting to the provisions of section461 (A) of the Civil Procedure Code.
The learned District Judge held that the plaintiff can make use ofthe provisions of section 461(A) of the Civil Procedure Code to givenotice to the defendant and stayed further proceedings of the actionfor a period of one month. It is to be observed that even though theCivil Procedure Code provides for such procedure, the Pradeshiya SabhaAct does not provide for such procedure.
Section 461 of the Civil Procedure Code states that no action shallbe instituted against the Attorney General as representing the State,or against a Minister, Deputy Minister or Public Officer, in respect ofan act purporting to be done by him in his official capacity, until theexpiration of one month next after notice in writing has been deliveredto such Attorney-General, Minister or Deputy Minister or Officer (as
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the case may be)Section 461 (A) of the Civil Procedure Code
was introduced to provide for the procedure to be followed where suchnotice has not been given under section 461 prior to the institution ofthe action/
In this case the 1st and 2nd defendants are the Chairman and theSecretary of the said Pradeshiya Sabha. The 3rd and the 4th defendantsare the officials of the Pradeshiya Sabha. Section 461 of the CivilProcedure Code refers to an action instituted against the AttorneyGeneral as representing the State or against a Minister etc. However,the Pradeshiya Sabha Act, No. 15 of 1987 provides a special procedurewhere an action is instituted against the Pradeshiya Sabha or againstits officials, even though the said procedure is similar to that providedunder section 461 of the Civil Procedure Code. However, the PradeshiyaSabha Act has not provided a procedure where no notice has beengiven under section 214(1) of the said Act.
It appears that section 461A of the Civil Procedure Code was broughtin to supplement section 461 of the Code where no notice as requiredby section 461 has been given prior to the institution of the action andobjection is taken prior to or in the answer that no such notice hasbeen given. It is to be noted that a Pradeshiya Sabha is not acomponent or part of the State. Section 461 of the Civil ProcedureCode applies when an action is instituted against the Attorney-Generalas representing the State or against a Minister or Deputy Minister orPublic Officer in respect of an act done in his official capacity. APradeshiya Sabha is not a component of the State and even thoughsometimes it may receive funds from the Government, it is independentand non-governmental. It is to be seen that section 214 of the PradeshiyaSabha Act is not identical to section 461 of the Civil Procedure Code.The provisions in section 214(1) of the Pradeshiya Sabha Act cannotbe compared with section 461A and section 461A of the Civil ProcedureCode cannot be construed to cure the defect where no notice hasbeen given in terms of section 214(1) of the Pradeshiya Sabha Act.
In these circumstances, it is my considered view that the learnedDistrict Judge has erred in law in holding that the provisions of section461 (A) of the Civil Procedure Code could be applied where no notice
CA
Jayatissa vs. Nandawathie and Others
37
as required by section 214(1) of the Pradeshiya Sabha Act has beengiven prior to the institution of the action and the defect could be rectifiedby allowing the plaintiff to have recourse to the section 461A of theCivil Procedure Code. Therefore it seems to me that the failure tocomply with the provisions in section 214(1) of the Pradeshiya SabhaAct cannot be cured by recourse to section 461A of the Civil ProcedureCode.
The appeal is accordingly allowed with costs fixed at Rs. 5,250.
ANDREW SOMAWANSA, J. (P/CA). – / agree.Appeal allowed.