038-NLR-NLR-V-57-PELIS-SIGHO-Appellant-and-THE-ATTONEY-GENERRAL-Respondent.pdf
J954-Present : Swan, J., and de Silva, J.1'KLltS SIXOHO, .Appellant, and THE ATTORN EY-O EXE UAL.
.• Respondent
■ S. C. 247—D. C. Colombo, 24,010
(,'ir'il Procedure Cotie—Section JOl—Action on contract—f{c';uircincnt of notice, of
action—Jnyredienfs of such notice.
Viulur section 4(51 of (Iio Civil Procedure Code nulico must be "ivtui to lb<>Attorney-General before iu notion can bo instituted against liisn for biwu-li «»feon tract.
Action was instituted against the Crown for Its. 3,.>3i’50, whereas the notiongis'cn under section 4CL of tlio Civil Procedure Cotie stated the figure to l>oIts. 3.HJ2-0!).
field, that-ifio slight variation in the <]iinntinn of relief claimed did not renderthe notice invalitl.
A..
-CX-Pl’EAL li'iim ;i judgment ot the District Court. Colomlm.
.S'. IF. Juyasuriya, for tlio plaintiff appellant.
Ji. C. 1 Jayarulnc, Crown Counsel, for the Attorney-Genotal.
Cur. adr. raff.
October 20, 19-3-1. Is wax, J.—■
The iippelfant instituted this action to recover from the Crown Rs. 3,032alleged to he due to him as the balance on certain bricks siqrplied to theRand Development Officer at Polonnaruwa-. The respondent filed answerdenying liability and pleading that the action was not maintainable asdue notice of action as required by section 4l>l of the Civil ProcedureCode was not. given. At the trial, among the issues raised was thefollowing :—
(>. Has the plaintiff given proper and sufficient notice of this actionto the Attorney-General as set out iti section 4.61 of the Code ?
At the suggestion of learned Crown Counsel this was tried as a preli-minary issue, was dec-idecl against the appellant and the action wasdismissed with costs.
At tile hearing of the appeal learned counsel for the appellant took apoint not raised in the petition of appeal, namely that notice was notnecessary in actions based on contract. A reading of the section makesit quite clear that no distinction is drawn between actions on contractand other actions. But the matter is covered by authority. Til the caseof Si/rtt v. Jon Maas 1 Wood Renton A.C.J. held that the notice wasnot unnecessary in actions founded on contract..
Section 461 of the Civil Procedure Code requires that the notice shallstato, *" the cause of action, the name and place of the abode of tlio porson
> (/Of-3} 77 jV. L, It. .377.
intending to institutes tho action and the relief which lie claims Inthis case the first two requirements Were fulfilled. Tho third was fulfilledin part only. The nature of relief was tlio same ns that stated in thonotice, but. tho quantum was slightly more. Tho action was filed forIts. 3,532'50, whereas tho notice stated the figuro to be Its. 3,192'60.In tho case of Lc Mcsuricr v. ,Vu rrah it was held that a notice undersection 4.61 was not vitiated by tho statement- of a claim for greaterrelief than that ultimately demanded in the action. This caso was citedto tho learned District Judgo but whilo accepting the correctness of itho thought that tho converse did not hold good.
' I think tho learned District Judge has. taken too strict- a view. Thonature of the relief set- out in the notice is substantially the- same as thatclaimed in tho plaint. In my opinion tho slight variation in the quantumof relief would not make tho notico bad. I set aside the. judgment oftho learned District Judge and remit tho case to the lower court f>radjudication on the other issues. The appellant will be entitled to thecosts of appeal.
. I JljIKjf ullotVC'l
B13 S'lr.VA, J.—I agree.