GIIATIAJ3N J.—JSdadan v. Nana Andy
1949Present.- Gratiaen J.
MAD AN, Appellant, and NANA ANDY, RespondentS. G. 212—C. JR. Colombo, 9,656
Public Servants Liabilities Ordinance—Plea rejected—No appeal from, judgment—Plea taken again in execution proceedings—Res judicata—Exceptionto rule.
Defendant in this action pleaded that he was a public servant andclaimed the benefit of the Public Servants Liabilities Ordinance. Hisplea was rejected and judgment entered against him. There was noappeal from the judgment. In execution proceedings the defendantsought to raise the plea again and have the decree vacated on theground that the proceedings in the action were void in terms of theOrdinance.
Meld, that the was not precluded from raising the plea and that theprevious finding did not operate as res judicata.
Appeal from a judgment of the Commissioner of Requests, Colombo.
K.S. Rajah, for plaintiff appellant.
S. W. Jayasuriya, for defendant respondent.
N. D. M. Samarakoon, Crown Counsel, as amicus curiae.
Cur. adv. vult.
June 13, 1949. Gratiaen J.—
In October 1947 the appellant sued the respondent in this action forthe recovery of a sum of Rs. 200 and interest due to him on a contractof loan. The respondent pleaded certain defences all of which werelater abandoned. At the trial, however, he claimed for the first timethat he was entitled to the protection of the Public Servants(Liabilities) Ordinance (Chapter 88). Some evidence was led on thisissue, but the learned Commissioner held that the proof relied on by therespondent was inadequate. He accordingly rejected the claim tostatutory protection, and entered judgment in favour of the appellantas prayed for with costs. The respondent did not appeal against thisjudgment.
The judgment remained unsatisfied for some time, and the appellantproceeded to take steps to have the decree executed. The respondentthen made an application to the Court renewing his claim to the protectionof the Public Servants (Liabilities) Ordinance and asking inter alia thatthe decree against him be vacated on the ground that the proceedingsin the action were void. At the inquiry he proved to the satisfactionof the learned Commissioner that at the date of the loan he was in facta “ public servant ” entitled to the protection of the Ordinance. Thelearned Commissioner accordingly declared all proceedings in the actionto be void. The appellant has appealed from this order.
GRATIAEN J.—Madan v. Nana Andy
I am not prepared to hold that the learned Commissioner has wronglydecided that the respondent was a “ public servant The only questionwhich remains to be decided is whether the respondent was precludedin law from reagitating at the inquiry the identical issue which he hadunsuccessfully raised at the trial—namely, whether he was at the relevantdate a “ public servant ” within the meaning of the Ordinance.
There can be little doubt that the principle of res adjudicate wouldnormally have operated against the respondent. This principle of theEnglish law, which is embodied in the Civil Procedure Code, isintended, in the interests of finality, to prevent litigants fromreagitating “ not only points upon which the Court was actually requiredby the parties to form an opinion and pronounce a judgment, but alsoevery point which properly belonged to the subject of litigation and whichthe parties, exercising reasonable diligence, might have put forward atthe time ”. Henderson v. Henderson >. The need for this general ruleof estoppel is very clear, because otherwise “ litigation would have noend, except when legal ingenuity is exhausted ”—per Lord Shaw inHoysted v. Taxation Commissiona. Indeed, in this country, it mightwell be found that the litigation would in the majority of cases endureuntil the lawyer’s ingenuity and the litigant’s purse have both given upthe unequal struggle.
In England there are recognised exceptions to the operation of thegeneral rule to which I have referred. For instance, the principle ofestoppel and the principle of res adjudicate, cannot apply where to giveeffect to them would be to go counter to some statutory direction orprohibition. This exception was recently given effect to in Griffiths v.Davis3 where a tenant against whom a decree for rent in excess of theamount authorized by the Rent Restriction Acts was nevertheless heldentitled to challenge the validity of the decree by raising this issue whichhe had omitted to raise at the original trial. “ There is a statutorydirection to the Court ”, said the Master of the Rolls, “ to abstain fromgiving a judgment for recovery of rent which is shown to the Court tobe excessive …. The earlier judgment cannot give to the Courta jurisdiction which the Act has denied to it ”. The Master of the Rollsadopted the proposition laid down by the House of Lords in an Irishease Bradshaw v. M’MuUan4 (the report of which I regret is not availableto me) that where there is a statutory prohibition or direction, it cannotbe over-ridden or defeated by a previous judgment between the parties>.
If this exception to the rule of res adjudicate, is applicable in Ceylon—and for reasons which I shall shortly indicate I am satisfied that itis—-its operation seems to me especially appropriate to cases such asthe present case. The protection afforded by the Public Servants (Lia-bilities) Ordinance was granted in the general interests of the publicand not with the idea of conferring any special favours or privilegeson public officers. In order that officers in receipt of salaries below aprescribed limit may be protected from the dangers and temptationsarising from indebtedness to money-lenders, Section 2 of the Ordinanceexpressly prohibits legal proceedings from being maintained in certain
(1843) 3 Hare at p. 114.3 (1943) 112 L. J. K. B. 577.
(1926) 95 L. J. P. C. 79 at, p. 83.* (1920) 2 Ir. R. 412.
Sandora Menike v. Imbuldeniya
oases against certain classes of public servant. Section 3 declaresall proceedings in or incidental to an action in contravention to theOrdinance to be void; it also directs the Court to examine and to takeaction upon complaints that any public officer has been dealt within contravention of the Ordinance by any process, execution or order.It seems to me that the statutory prohibitions, declarations and directionscontained in the Ordinance are absolute, and that the whole schemeof the Ordinance would be defeated if a public servant were to be pre-cluded from claiming the protection of the Ordinance by reason ofany act or omission on his part or by the terms of any judgment enteredagainst him which is proved to have been obtained in contraventionof the Ordinance. In Perera v. Perera1 Sir Alexander Wood Rentonheld that a public servant who had not raised the plea of privilege andclaimed the protection of the Ordinance at the time was not precludedfrom raising it at a later stage when he was arrested for his debt. Thisauthority has been consistently followed in our Courts, but, as far as I amaware, the question has not previously been considered in relation‘ to a public servant who had claimed the protection of the Court at thetrial, but unsuccessfully. On principle, however, I cannot see that thiscircumstance can override the unequivocal statutory prohibitions anddirections which the legislation has deemed it necessary to introducefor the public benefit. If the doctrine of res adjudicate, embodied inSection 207 of the Civil Procedure Code were to apply to the presentcase, it would be equally applicable in a case where a plea of protectionwhich was available to a public officer was not raised by him at the trial.In my opinion the principle of res adjudicate cannot give validity to anyjudgment or decree which is declared by the express provisions of thePublic Servants (Liabilities) Ordinance to be void. I dismiss the appealwith costs. In conclusion I desire to express my indebtedness to learnedCrown Counsel for the assistance which he gave me as amicus curiaeat the argument of this appeal.
MADAN, Appellant, and NANA ANDY, Respondent