099-NLR-NLR-V-59-P.-EDIRIWEERA-Appellant-and-S.-WIJESURIYA-Respondent.pdf
44 6
■Ediriweera v. 'Wijesuriya
1958Present: Basnayake, C.J., and de Silva, J.
P. EDIRIWEERA, Appellant, and S. WIJESURIYA, RespondentS. C. 219—D. G. Hambantota, 182Civil Procedure Code—Section 461—“ Act 11—I 'el vidane—Liability as <c publicofficer **—Irrigation Ordinance, A'o. 32 of 1946, ss. 23 (1), 23 (4), 26, 29, 31.
A vel vidnno appointed under tbo Irrigation Ordinance, rSTo. 32 of 1946, is apublic officer within the moaning of section 4G1 of tbo Civil Procedure Code.
The defendant, a vel vidane, by deliberately leaving open the water pipes of onirrigation channel for a full day when ho should have closed them for half the:f- day, deprived tho plaintiff of sufficient water for his paddy field and therebycaused damage to tho plaintiff.-,_
Held, that tho failure of tho vel vidane to operate tho water pipes properlywas “ on act ” dono by him in his official capacity. lie was, therefore, entitledto notico of action in terms of section 4G1 of tho Civil Procedure Code.
BASNAYAK E, C.J.—Ediriwccra v. H'ijcsurii/a
447
-^^-PPEAL from a judgment of the District Court-, Hambantota.
Sir Lctlila Rafapakse, Q.C., with E. .4. G. de Silva, for Defendant-Appellant.
jl iym Jayeivardene, Q.G., with O. V. Ranaicaka and P, Ranasinghc,for Plaintiff-Respondent..
– February 19, 195S. BaSXAYAke, C.J.—
This is an' action in which the plaintiff seeks to recover a sum of Us. 91Sas damages from the defendant a vel vidanc. The plaintiff’s allegationis that he suffered the damages claimed by him in consequence of thedefendant’s action in “ wrongfully and unlawfully in breach of his dutyas vel vidanc ” manipulating the japes supplying water to the paddy fieldsirrigated bj' the Wile-Ela scheme so as to deprive his field known asBankolothmulia of sufficient water during the Yala season of 1951 and theZtfaha of 1951-52.
It would appear from the evidence of the Irrigation Engineer who,
‘ at the relevant period, was in charge of the irrigation scheme in whichthe plaintiff's paddy field is situated that the plaintiff’s field was irrigatedfrom a channel known as Wile-Ela which irrigated about 150 acres ofpaddy fields. The plaintiff complained to him on three or four occasionsthat his field did not receive sufficient water. He inspected the field andobserved that it was true, and he formed the opinion that the plaintiffdid not receive enough water because the pipes that fed the water to thefields were not properly operated and that although there was sufficientwater to supply all the 150 acres the plaintiff did not get enough onaccount of the action of the defendant in keeping open, for a full day,certain pipes that should be kept closed for half the day..
The only question that arises for decision on this appeal is whetherthe defendant who is a vel vidane should have been given notice of thisaction under section 461 of the Civil Procedure Code. The learnedDistrict Judge has found as a fact that notice of action has not been given.He holds as a matter of law that notice of action under section 4G1 needonly be given to a public officer who has acted “ in good faith and withan honest intention of getting the law into force ”. He further holdsthat notice of action need not have been given in the instant case asmalice is alleged. Learned counsel for tho ajjpeliant relied on thedecision of this Court in the case of De Silva v. IlawjaJcoon 1.
. Learned counsel for the respondent did not-, in view of the decision ofthis Court in that case, seek to support the learned District Judge’sview that notice under section 461 of tho Civil Procedure Code wasnot necessary where malice is alleged ; but ho maintained that noticewas necessary only in respect of an act purporting to be done by a publicofficer in his official capacity. He submitted that in the instant ease
1 {19-56) 57 JY. L. R. 457.
– 44SBASNAYAKE, C.J.—Ediriwe°.ra v. W'ijesttrit/a
plaintiff’s complaint was not of an act of the defendant but of an omissionby him. He further submitted.that the word “act” does not in thecontext of section 4G1 include an omission. Learned counsel relied onthe. case.of JRevati Mohan Das v. Jalindra Mohan Ghosh and othersl.That was an action on a mortgage. One of the defendants was thecommon manager of an estate appointed under the Bengal Tenanc3r Act,1885. It was contended that the manager, being a public officer, wasentitled to notice under section 80 of the Indian Civil Procedure Code andthat no such notice having been given the action could not be instituted.The Privy Council observed (pp. 97-9S)—
“ Their Lordships do not suggest that a claim based upon a breachof contract by a public officer may not in many cases be sufficient toentitle him to notice under the section, but they are unable for thereasons already given, to agree with the learned Judges that theomission by respondent 1 to payr off the mortgage was such a breach.”
The decision of the Priv3' Council has no application to the instantcase where it is clear that it was the act of the defendant in manipulatingthe water pipes in such a wa3' as to deprive the plaintiff of sufficient waterthat caused him the damages he claims. The evidence of the IrrigationEngineer leaves no room fof doubt that the defendant deliberate^- leftopen for a full da3‘ pipes which should have been closed for half the day.It is clear the plaintiff suffered injiuy not through any omission of thedefendant but through his deliberate act in keeping open the yjipes fora full da3r when he should have closed them for half the chiy.
Learned counsel also contended that a vel vidane is not a public officer.He relied on the Irrigation Ordinance Ko. 32 of 1916. It was decided1j3' this Court in the case of Tampoe v. Murukasu 2 that an irrigationheadman appointed under Ordinance Ko. 10 of 1901 is a public officerwithin the meaning of that expression in section 461 of the CivilProcedure Code. If a vel vidane could properly be regarded as a publicofficer under the Irrigation Ordinance of 1901 he is more so under theorcsent Ordinance Ko. 32 of 19-16. Although the mode of selection ofa vel vidane is election bj' the majority of registered proprietors of thedivision (section 25 (1) ) he is appointed 63' the Government Agent (section25 (4) ) and is liable to be retired or dismissed by him (section 26). Hehas public duties to perform (section 29) and may receive suchremuneration for his services as the Government Agent (section 31)ma3* award.
-■ The appellant is entitled to succeed. We allow his appeal with costsand set aside the judgment of the learned District Judge and dismiss theplaintiff’s action with costs..
… • .
de^£>ix/yA,.J.— I agree.'
>'. Appeal allowed.
1 {1934) A. I. ii. Privy Council p. 96.* 1 Current Law Reports 107.