102-NLR-NLR-V-43-PONNUDURAI-v.-WIJEYEWICKRAMA.pdf
431
HEARNE J.—Ponnudurai u. Wijeyewickrama.
1942Present: Hearne and Jayetileke JJ.
PONNUDURAI v. WIJEYEWICKRAMA.
229—D. C. Colombo, 12,617.
Public servant—Action to recover money—No answer filed—Defendant files
affidavit claiming the benefit of Public Servants (Liabilities) Ordinance,
Cap. 88 (s. 3.)
The plaintiff sued the defendant for the recovery of a sum of Rs. 800,which he alleged he had entrusted to him in the form of a cheque forclearance at a Bank.
On the date fixed for filing the answer, the defendant filed no answerbut contented himself with filing an affidavit in which he denied thatthe sum of money was due from him, and, stating that he was a Govern-ment servant, claimed the benefit of the Public Servants (Liabilities).Ordinance.
The learned District Judge entered judgment for the plaintiff.
Held, that the Judge was bound to inquire into the claim for statutoryprotection made, by the defendant in terms of section 3-of the PublicServants (Liabilities) Ordinance.
^^PPEAL from an order of the District Judge of Colombo.
L. A. Rajapakse, for defendant, appellant.
.V. Nadarajah, K.C. (with him T. K. Curtis), for plaintiff, respondent.
Cur. adv. vult.
July 17, 1942. Hearne J.—
The plaintiff respondent sued the defendant appellant for the recoveryof Rs. 800, which he alleged he had entrusted to him in the form of a chequefor clearance at a bank. As framed the action did not fall withinsection 2 (a) of the Public Servants (Liabilities) Ordinance.
On the date fixed for filing the answer, the defendant filed no answerbut contented himself with filing an affidavit, in which he denied that thesum of Rs. 800 or any sum was*"due from him and stating that he was aGovernment servant in receipt of a salary of Rs. 233.33 per month,claimed the benefit of the Public Servants (Liabilities) Ordinance.
The learned Judge held that there was nothing' before him to showthat the transaction upon which the plaintiff had sued fell under section 2of the Ordinance and, upon Counsel for the plaintiff thereupon filing anaffidavit in support of the plaintiff’s case, he entered a decree nisi which-was later made absolute.
In deciding the case as he did, the Judge overlooked the peremptoryprovisions of the Ordinance. Section 3 states that “ where complaintis made by a public servant …. that such public servant isdealt. with in • contravention of this Ordinance …. the Court orsome Judge shall examine into the complaint ….”. Themere assertion of a claim to protection requires an examination of thatclaim.
432HEARNE J.—Ponnudurai v. Wdjeyewickrama.
If it was held that the complaint was without foundation, the Judge in" thereafter disposing of the case would no doubt take note of the factthat no answer had been filed, but the failure to file an answer did notabsolve the Judge from inquiring into the complaint once it had beenmade.
The appeal is allowed with costs. An inquiry into the claim ofstatutory protection must be made. The appellant must be given anopportunity of substantiating the claim aiid, the respondent must, ofcourse, also be given an opportunity of resisting it. After it has beenadjudicated upori, the trial, will proceed according to law. All costshitherto incurred and that may hereafter be incurred in the trial Courtwill be in the discretion of •! i4 Court.
Jayetilleke ■ J.—I agree.
Appeal allowed.