119-NLR-NLR-V-58-M.-SUBBIAH-Appellant-and-THE-TOWN-COUNCIL-POINT-PEDRO-Respondent.pdf
1956Present: K. D. de Silva, J., and Sinnetamby, J.
M.SUBBIAH, Appellant, and THE TOWN COUNCIL,POINT PEDRO, Respondent.
S. C. 276—D. O. Colombo, 33,917 jM
Town Council—Sited for breach oj contract—Notice of action not necessary—TownCouncils Ordinance, No. 3 of 1949, s. 231 {/).
Tho notice contemplated in section 231 of tho Town Councils Ordinance,which provides that no action shall bo instituted against a Town. Council foranything dono or intended to bo dono indcr tho powers of that Ordinr.ncountil the expiration of ono month after written notice is given to the Councilstating with rcasonablo certainty tho cause of action etc., is required to bogiven only in cases whore tho cause of action is based on tort and not on contract.
A■/APPEAL from a judgment of the District Court, Colombo.
V. A. Kandiak, for the plaintiff-appellant.
//. Wanigalunga, for the defendant-respondent.
Cur. adv. vull.
December 20, 1956. de Silva, J.—:-
The plaintiff appellant instituted this action against the Town Council,Point Pedro, the defendant, to recover a sum of Rs. 347/50 on accountof goods sold and delivered. The defendant filed answer denying thepurchase of the goods and also pleading that this action was not main-tainable as the notice required in terms of the provisions of section 231 (1)of the Town Councils Ordinance No. 3 of 1946 was not given. The learnedDistrict Judge tried the two issues relating to this plea as preliminaryissues and having answered them in favour of the defendant dismissedthe plaintiff’s action with costs. This appeal is from that order.
Section 231 (1) of Ordinance No. 3 of 1946 provides that no action shallbe instituted against a Town Council for anything done or intended tobe done under the powers of that Ordinance until the expiration of onemonth after written notice is given to the Council stating with reasonablecertainty the cause of action etc. It is contended on behalf of the plain-tifF that the notice contemplated in section 231 (1) is required to be givenonly in cases where the cause of action is based on tort and not on con-tract or quasi-contract. Section 177 of the Municipal Councils Ordi-nance No. 17 of 1865 which is substantially the same as section 231 (1)of Ordinance No. 3 of 1946 came up for consideration in John Walker <L-Co. v. The Municipal Council of Kandy L In that case the plaintiffsought to recover a sum of money from the defendant Council on accountof work done and goods supplied. The defendant pleaded that theaction was not maintainable as the notice required by section 177 ofOrdinance No. 17 of 1865 had not been given. In rejecting this pleaClarence J. stated :—
“ This clause s'eems to me to contemplate actions to recover damagefor torts or to restrain the commission of torts. I do not think it wasmeant to impose a three months ’ time of prescription on a mere claimfor goods sold or work done. ”,
The same Judge adhered to this view in the subsequent case Jayasunderav. -The Municipal Council of Galle 2.
In Siripala v. U. T). G., Kalulara.3 ’YVijeyewardene J. had occasion toconsider the interpretation of section 230 of the bocal GovernmentOrdinance No. 11 of 1920. That section is identical with section 231of Ordinance No. 3 of 1946. In that case the plaintiff sought to recovera sum of money which he had paid for the purchase of land belongingto the Urban Council sold by auction but which sale the Council refusedto confirm. The Council pleaded that the action was not maintainableas no notice had been given in terms of section 230 of Ordinance No. 11of 1920. In construing that section Wijeyewardene J. after referring tothe earlier cases observed :—
“ Apart from authority, the language of section 230 of the LocalGovernment Ordinance leaves no doubt in my mind that the sectionis not applicable to actions against an Urban District Council for the- enforcement of contractual or quasi-contractual obligations. ”
» (1SS1) 4. S. C. G. 140.* (1S83) 5 S. C. C. 174.
. a (1939) 41 N. 13. It. 161.
I would respectfully agree with that view. Section 231 of OrdinanceNo. 3 of 1946 is applicable, in my opinion, to actions for the enforcementof obligations arising ex delicto and not to actions such as this. The judg-ment of Wijeyewardene J. in 41 N. L. X. 161 was cited by the plaintiff'sCounsel in tho Court below but the learned District Judge refused tofollow it on the ground that tho passage quoted above from that judg-ment was obiter. I am unable to understand how the District Judgecould have held it to be obiter. The point was specifically raised in thecase and it became absolutely necessary to decide whether or not theprovisions of section 230 were applicable to actions based on contractor quasi-contract. After considering the earlier authorities and thelanguage of the section this Court held that the section in question wasnot applicable to such actions. The original Courts should not lightlydismiss the views of tiffs Court as being obiter.
The learned District Judge should have answered the preliminaryissue No. 4 in the affirmative. Accordingly I would set aside the orderappealed from and send the case back for trial on the remaining issues.The defendant will pay the costs of this appeal to the plaintiff.
Sismktamby, J.—I agree.
Appeal allowed.