RATNAVIRA ,Appellant, and UPERINTENDENT OF POLICE (C. I. D) et al , Respondents

053-NLR-NLR-V-51-RATNAVIRA-Appellant-and-UPERINTENDENT-OF-POLICE-C.-I.-D-et-al-Respondents.pdf


217
WIJKYKYYA13DKXli C.,1,—I’atmichu v. St'pnl. of Fuiio: (C. i. U.)
Present: Wijeyewardene C.J. and Pulle J.
RATNAVIRA, Appellant, and SUPERINTENDENT OFPOLFOE (0- T. D.) el al., Respondents
A. V. 231- J). C. Colombo, Jfi,S10
Action against public officer—Filed before expiration of one month after noticeof action—No evidence that defendant acted mala fide—Failure of duenotice■ of action—Fatal irregularity—Civil Procedure Code, Section 461.
Defendants were public officers against whom plaintiff filed actionbefore the expiration of one month after delivery of notice of institutionof action. They were sued in respect, of an act which was not shown tohave boon done mala fide.
Held, that a public officer is entitled to notice of action in terras ofsection 4(11 of the Civil Procedure Code if he is sued in respect of anact which he did b<ma fide, purporting to act in his official capacity,even though it is found that he had no reasonable cause for the beliefon which ho aetod.
Obiter, per VYukvewarokn^ C.J.—“ X wish to place on record myopinion that Appu Singko v. Don Aron (1906) 9 N. L. Ji. 138 and AharonAppti v. Banda (1913) 16 N. L. R. 49 have taken too restricted a viewof the ftcoj>o of section 461 when they laid down that the section did notapply to a public officer acting mala fide."
^^.PPKAL from a judgment of the District Court, Colon;ho.
IF. Jayeuxmkve, with G. L. L. de Silva, for the plaint-ill appellant.
N.K.GhoksyM.C., with M. M. KumarahilasinghainJoT the defendantsrespondents.
Cur. udr. wit.
October 31 194b. Wi.IKYEUAROEne C.,1.—
The first defendant in this case is a Superintendent of Police and thesecond defendant, a Sub-Inspector. The plaintiff sued the defendantsfor the recovery of Rs. 10,000 as damages sustained by him by reasonof certain acts alleged to have been committed by the second defendantacting on the directions of the first defendant. The plaintiff pleadedthat the defendants purported to act in their official capacity and thattheir acts were wrongful, unlawful and malicious:
In his evidence the plaintiff stated that he was residing in Colpettyand having his place of business in the Fort. He was '‘on friendlyterms with American Officers ”. About November 1945, he came toknow one Captain Harry Long of the American Transport Corps, Rat-malana, who described himself as the Secretary of the Officers’ Messthere. The “ Club ” had been closed about January 1945, and the“ equipment and property belonging to the Club 55 were sold to thepublic. He himself bought some articles of furniture from time to timeand also a refrigerator which was “ one of the last items ” to be purchasedby him. The refrigerator was a large one, its capacity being about22 oubic feet. The plaintiff’s own expert witness stated in Court that10Li.
1—J. ft. A. ft51«0-UU2 (-2/60)
W'lJKYEWAKlJKNli C.J.—J{vl>niri>-‘i c. Sup’it. of Police I. U.)
‘>k
In. December 1945, “ people who saw a need for it ” would have paidRs, 9,000 for it, and that it would have fetched about Rs. G,000 in 1947,in spite of the damage alleged to have been done to it by the Police.Captain Long was, however, willing to sell this refrigerator to the plain-tiff for Rs. 500 in December 1945, but desired that the payment shouldbe made in cash. That payment was made at the plaintiff’s place ofbusiness on December 14, J945, and Captain Long, thereupon, typed“ a receipt ” P 3 on the plaintiff’s typewriter and gave it to him. Therefrigerator was delivered to the plaintiff a few days afterwards. Almostimmediately after this transaction, Captain Long left the Island. Thereceipt P 3 reads as follows :—
A. T. 0. Kalmalanu,14th December 1945.
This is to'Certify that 1. have sold one tee Box to Mr. Sardha Ratna-vira (plaintiff) of Pendennis Avenue, Oolpetty.
(Sgd.) Harry S. Long,
American Transport Corps,Ratmalana.
It- wilt be noted that the receipt does not state what Captain Longreceived as purchase money for the sale of this large refrigerator referredto as an Ice Box in the receipt, and that it docs not show that CaptainLong was selling the property as the Secretary of the Officers’ Mess.On the face of it. P3 appears to have been prepared at Ratmalana, thoughthe plaintiff’s own evidence is that it was typed in his own office in theFort-. This is not without some significance, in view of the ovidenee ofthe plaintiff that he would have got a proper receipt from Captain Longbut for the fact, that the latter came io his office when he was busy andpassed on the receipt to him, typed on his own typewriter, and left hisoffice a few minutes afterwards.
It is convenient at this point to refer to the evidence of Mr. J. O. Ebert,a witness called for the defence. Mr. Ebert is an Assistant ShippingMaster, H. M. Customs. He stated that :i sometime early in January1946 ” he overheard “ a certain conversation ” when he was at Cargills,and he, thereupon, tried “ to discover ” whether the transfer of a refri-gerator by an American Unit Station at Ratmalana had boon reportedto the Collector of Customs as required by section 23 of the Custom'Ordinance which together with section 22 became applicable to articles,imported for the use of any Mess of the Allied Forces, by the operationof certain Defence Regulations. Finding that there was no such reporthe “brought the matter” to the notice of the Criminal InvestigationDepartment.
To continue the evidence given by the plaintiff, the second defendanttelephoned to plaintiff at his office on January 15, 1946, and said that hehad information that the plaintiff had a stolen refrigerator supposedto be Army property ”. The second defendant added that he hadorders from hissuperiors to seize the refrigerator and, therefore, requiredthe plaintiff to come to the Police Station. The plaintiff went there,showed the receipt P3 to the second defendant and requested the second
WIJEYEWARDKNTE V..J.—
&vjidi. ofPofrv- (V. I. D. ‘JI’J
defondant ‘‘ to got in touch with the Americans at Ratmalana andinquire whether they have lost a refrigerator ”. Of course, at this timeCaptain Long who had described himself as the Secretary of the Officers’Mess was not in Ceylon. The second defendant “ threatened to postguards around his (plaintiff's) house ”, if he did not allow the Policeto remove the refrigerator. The plaintiff* then consented to the Policeremoving the refrigerator to the Police Station and it was removed on■Tumiary 10. It was returned ultimately to the plaintiff by the Policetwo months afterwards. On January 16, the plaintiff’ “ got in touch ”with a Captain Gray at Ratmalana who referred him to Colonel Seward,and the latter examined the refrigerator at the Police Station the sameday at the request- of the plaintiff*.
Colonel Seward was Commanding Officer of the American Forces inCeylon only from December lf>, 1945, and that would be after the trans-action between Captain Long and the plaintiff. Colonel Seward wasexamined dc bene, esne, on April 11, 1046. for the plaintiff and he said inoxamination-in-chiof, ;;I examined (the refrigerator) to determinewhether or not it was United States Army property and I discoveredit was not United States Army property. Nor do we have any recordsshowing that it was L'nited States Army property …. Afterinspection 1 was satisfied that it wu = not United States Army property.I also checked our records to find if we had any record of this refrigerator.Wo hud no record In cross*examination he said, “ I am not producingany kind of written record in support of u hat I had told you. I personallydid not examine the record. 1 asked my supply officer to chock therecords. He made a report to me. That was a verbal report. Thename of that Supply Officer is Captain George Gray. He has left Ceylon.He left on March 31, 1943
In this connection I would refer io the loiter P2 written by ColonelSeward to the Customs authorities on. February 12, 1946. It roads :—In reply to your No. P. 15/383,1 must say that the records remain-ing under my custody do not provide any of the information youdesire, but your questions will be answered to the best of my ability.*’“ Captain Long was a member of the 1310th Air Rase Unit, which isno longer in existence, having been inactivated about December 15,1945. That Unit was never a part- of iny command, but operatedunder the Army Air Force Headquarters, Calcutta. The recordsof the Unit may have been sent to that Headquarters or the U. S.Army Central Records Depot, Calcutta, when the unit was inactivated.”“ I was told by a former member of the American Officers’ Mess,Ratmalana, that the refrigerator now in Mr. S. Ratnaweera’s posses-sion, was formerly the property of that Mess. I am completely unableto inform you whether it was imported by U. S. Forces, or throughcivilian channels. That information should be included among therecords of the 1310th Air Base Unit. Nor am I able to inform youof the possible date of importation or whether duty was paid on it.That type of refrigerator is unlike any other I have seen issued inCeylon, for U. S. Army use, so it is possible it was purchased from acivilian agency or individual.”
WIJKYEWAKDKXfc I'.J.—ftahmcir't t .ShjmU. of Police {C. 1. O.)
“May I suggest you address an inquiry to the Headquarters U. 5>.
Army Air Forces, Calcutta, describing the refrigerator as former
property of the 131b Air Rase Unit Officers’ Mess, and requesting
they furnish the information you desire *. ”
it will thus be seen that most of the evidence given by Colonel Sewardis hearsay. It is, to say the least, unfortunate that the plaintiff* did notarrange to get Captain Gray to give evidence de. bme fistse before he leftCeylon.
The plaintiff' gave notice of action under section 461 of the Civil Pro-cedure Code to the defendants by letters sent by registered post. Thoseletters were posted at the Colombo Courts Post Office on February 21,194/). Being registered letters, they could not have reached the defen-dants that day and the defendants pleaded in their answer that theyreceived the letters only on February 22, 1945. The plaint in this casewas filed on March 21, 1946.
In view of the question of law that has to be decided in this case it isimportant to note that the plaintiff did not allege in his evidence that thedefendants were actuated by feelings of personal malice towards himor question the good faith of the defendants in respect of the acts doneby them.
There was no evidence led by the plaintiff to show that the first defen-dant “ caused or authorised ” the second defendant to enter the plaintiff’sresidence or seize and remove the refrigerator. The District Judge'sorder dismissing the plaintiff 's action against him must, therefore, stand.
As regards the second defendant, the District Judge found that lie“ purporting to act as a Police Officer maliciously, wrongfully, andunlawfully entered the plaintiff’s residence and seized and removed therefrigerator without the plaintiff’s consent He added, however,a note to show that he used the word “ maliciously ” to indicate that thesecond defendant “ had no lawful and reasonable or probable cause ”for acting as he did. He dismissed the plaintiff’s action against thesecond defendant, as it was filed before the expiration of one month afterthe delivery of notice to the second defendant.
I experience some difficulty in accepting the finding of the learned.Judge that the second defendant had no reasonable and probable causefor dealing with the property as stolen property. Having regard to theinformation given by the Customs authorities, the gross inadequacy ofthe price paid by the plaintiff, the fact of Captain Long insisting onpayment in cash, the unsatisfact ory nature of P3, the, departure of Cap-tain Long immediately after the sale,—could it be said that these factsdid not entitle the second defendant to regard the refrigerator as pro-perty in respect of which there had been committed the offence of criminalbreach of trust ? It should ho remembered that the second defendantwas acting as a Police Officer and not ns a Judge trying an accused personcharged with a criminal offence. It is, however, unnecessary for me to gofurther into this question and examine the evidence in detail, as thequestion of law could be decided on the assumption that the findingsof the District Judge are. correct.
WUEYEWARDEXE 0..T. —Rut.
u'.ivint v. Su/j'lt. of Police .1. J).)221
It was argued in appeal that the defendants were not entitled to anynotice under section 461 of the Civil Procedure Code and the appellant’sCounsel relied on Perera v. Hansard l, Appu Singho v. Don Aron2, AbaranAppu v. Banda3 and Cook v. Leonar et al.4.
In considering cases decided under the Public Authorities ProtectionAct, 1893, and under our Police Ordinance it is necessary to bear in mindthe difference in the language used in those statutory provisions and thelanguage of section 461 of the Civil Procedure Code which correspondsto section 424 of tho repealed Indian Code and section 80 of the IndianCode, 1908. Section 461 of our Code refers to actions against a publicofficer 1‘ in respect of an act. purporting to be done by him in his officialcapacity ’’ while section 83 of the Police Ordinance refers to “ actions. . . brought for anything done or intended to be done underthe provisions of this Ordinance ’* and section 2 of the English Act refersto actions for any act “ done in pursuance or execution, or intendedexecution of any Act of Parliament ….” .
The authorities cited by appellant's Counsel do not really help theappellant. Perera v. Hansard (supra) was an action for trespass againsta Police Officer and the Court had to consider whether he was entitled tonot.ico under the Police Ordinance. The legal position with regard to theneed for notice was laid down by Burnside C.J. as follows :—
“ Under the old class of cases which are referred to by Mr. JusticeWillcs in his judgment in the case of Chamberlain v. King, 40 L. J.
P. 276, it was considered that to be entitled to notice the defendantmust not only have acted with bonafides but he must have had reason-able cause for the beliof on which he acted …. but since thecases of Herman v. Seneschal, 32 L. J. C. P. 43 . . . . it issufficient if the defendant aefcod with bona fides honestly believingin tho existence of thoso facts which if they had existed would haveafforded a justification under the Ordinance. ”
The Supreme Court found that there was very strong proof of malafries on the part of the defendant and, therefore, held that the defendantwas not entitled to notice of the action under the Police Ordinance.
Appu Singho v. Aron Appu (supra) was an action for damages againsta Vidane Aratchi for unlawful seizure of timber. The Court foundthat the Vidane Aratchi “ acted in bad faith and had no honest belief thatthe timber in question had been cut …. on Crown land ”. WoodKenton J. stated,
“ So far as I am aware, the term ‘ purporting ’ has not been judiciallydefined, at least for the purposes of such a case as this, either in theEnglish Courts or in any of tho Courts of the Colony. But it seemsto me that in the connection in which I have now to deal with it thoword ‘ purporting ’ is equivalent to ‘ in pursuance of ’ and it has beenfield, in England in a great variety of cases …. that thedefendant in suoh an action as the presont is only acting in pursuanceof his statutory powers, if he honestly intended to put the law in forceand believed that the plaintiff had committed the offence with whichhe was charged, although there was no reasonable ground for such
belief
1 (1886) S Supreme <'ourt Circular J.
*(1906) It X. L. It. 138.
•(1913) 16 N.L. R. 49.
* (1827) 108 Knttfiik Report* 481.
222 WUEYEWAKDEXE CJ.—Ratnavlra v. Su-pdt. oj Police {C. I. D.)
Abaran Appu v. Banda {supra) was an action against a Vidanc Arntehi fordamages sustained by the plaintiff ns a result of some criminal proceed-ings instituted against him by the Aratchi. The Court found thatthe dofondant acted maliciously throughout those proceedings and, infact, that the whole case against the plaintiff wa3 a fabrication to theknowledge of the defendant. The Supreme Court followed the decisionin Appu Sitigho v. Dan Aron {supra) and held that no notice wasnecessary under section 461 of the Civil Procedure Code.
Cook v. Leonard cl al. {supra.) was a case instituted in 1827. TheCourt had to decide whether notice should have been served on thedefendants in view of section 111 of <3 George iv which required suchnotice “ in any action commenced against any person for anything done'in execution of or under the authority of that Act The Court heldthat notice need not have boon given as the defendants had no reasonablegrounds for thinking that the Act of Parliament gave to them or to thoseunder whose authority they acted any power to do the acts complainedof It must, however, he observed that this case belongs to the periodof the “ old class of cases ” referred to by Mr. Justice Willes in Chamber-lain v. King 1 and mentioned in Pcrcra v. Hansard {supra).
After wo reserved judgment my brother Pullc brought to my noticeG. Sc.ammeU and Ntphcv), Ltd. i Hurley cl al.2 which shows clearly themanner in which the English Courts construo tho Public AuthoritiesProtection Act. In the course of his judgment Scrutton L. f. said atpage 427 :—
“To require the application of the Public Authorities ProtectionAct, the act3 must bo acts not authorised by any statute or legaljustification but acts intended to be done in pursuance or executionof some statute or legal power. It would appear, therefore, if illegalacts are really done from some motive other than an honest desire toexecute the statutory or other legal duty and an honest belief that theyare justified by statutory or other legal authority . . . . tho
Act is no defence …. for tho acts complained of mv notdone in intended execution of a statute, but only in pretended executionthereof default in executing tho statute from no positive
motive or intention, but from simple forgetfulness or ignorance, wouldnot lose the protection of tho statute ”.
As stated earlier by me. there was not the slightest suggestion in 1-hiscase that the defendants noted fide. (if course in matters of Ibisnature the burden of proving tw.ila fid** is on the party denying that thepublic officer concerned had a rigid to notice of the institution of theaction. (Vide G. Hcammell and Nephew, Ltd. r. Hurley ct al. {supra).)The authorities cited by tho appellant’s Counsel do not support hisargument that, in the circumstances of this case the defendants havelost their rights to a notice under section 461 of tho Civil Procedure Codeas they acted bona fide oven though on the District Judge’s findimT.they had no reasonable cause for the belief on which they acted.
I wish to place on record my opinion that Appu Sing ho v. Don Aron{■sup}a) and Abaran Appu v. Banda {supra) have taken too restricted
J. r. p. 276.
(/».?;>) 1Perch DiGsion 419.
2*23
vm-;Yi:v.i<i)KNK cj.—/*./«««»•»» c. xvpdi.oJVonw v. i.1>.«
a view of the scope of section 4(51 when they laid down that the sectiondid not apply to a Public Officer acting mala fide. The question of thescope of section 80 of the Indian Code 1008 was considered by the FullBench of the Madras High Court in Kolileddi v. Svbtiah et at.1 andit was held there that a public officer was entitled to notice of the actionunder that section even though ho had acted mala fide in the dischargeof his duties. In the course of hisjudgraent, Wallis C.J. said,
“ It is significant that the words 1 purporting to bo done ’ arc widerthan ‘ done or intended to be done under the provisions of this Act7in section 204 of the Public Health Act, which appear to be the mostcomprehensive words used in any of the corresponding statutoryprovisions in England, seeing that they also include ‘acts intendedto seem to bo done in his official capacity ’; and it is quite probablethat they were chosen on that very ground and for the purpose ofmaking the English decisions inapplicable :
According to Sadasiva Ayyar J.:—
“The verb ‘purport’ is defined in the Concise Oxford Dictionaryas ‘ convey ‘ state ‘ profess ‘ being intended to seem ….I think that the expression ‘ any act purporting to be done by suchpublic officer in his official capacity ’…. means ‘ any act of a
public officer which is intended by him to carry forth or convey to theminds of all persons who become aware of that act the impressionthat ho did the act in his official capacity ami not us an ordinaryprivate individual and which has the effect of convoying such animpression by its seeming or appearances ’…. an act done
by a Public Officer would ‘ purport ’ to be an act done in his officialcapacity not only if it was properly and rightly done by him in suchcapacity and within his powers but also if it has such a reasonableresemblance (though a false or pretended resemblance) to a properand right act that ordinary persons could reasonably conclude fromthe character of the act and from the nature of his official powersand duties that it was done in his official capacity. But if the actdone is so outrageous and extraordinary that no reasonable mancould detect in it any resemblance to any act which the powers of suchan Oilieer could allow him to do on the facts as represented and declaredby such Officer, his more allegation that he did the act in 1-i.j officialcapacity would not suffice …. I think thenV ;ht? good
faith or the bad faitli of the Public Officer either as regards his beliefin the legality or propriety of his act or the limit of his powers or thoexistence of facts justifying the existence of such powers is irrelevantin the consideration of tho question whether the Officer is entitled tonotice under section 80
Spencer J. said:—
“ I think that the word ‘ purporting ’ covers a profession hv actor by words or by appearance of what is true as well as of what is nottrue ”,
The latest decisions of all the Higli Courts are in favour of the viewt hat notice is necessary even if the act is done mala fide.
1 (1918) Indian Law Reports, 4f Madras 792.
2:54
The King v. (?'. If. Fernando
In Dakshinn Ranjan G'hofih r. Omar Cfotnd Osteal 1 Sanderson C.J.said,—
“The decision of the learned Sob-ordinate Judge implies theimportation of words into the section which cannot be found there.He would read the section as if it were ‘ in resect of any act purportingto be done by such public officer bona fide in his official capacity In ray judgment it is not legitimate to construe the section by importinginto the section words which do not appear in the sectionIn Abdul Rahim v. Abdul Rahim – there occurs the following passage inthe judgment of Daniels and Ncavo JJ. :—
“ The contention urged on behalf of the respondent in this Courtis that which was adopted by the Court below, namely, that section80 has no application unless the act complained of was done in goodfaith. On the language of this section the question seems to us toadmit of no doubt. The section does not require that the act shouldhavo been done in good faith. It merely requires that it shouldpurport to be done by the Officer in his official capacity. Tf the actwas one such as is ordinarily done by the Officer in the course of hisofficial duties and he considered himself to lie acting as a Public Officerand desired other persons to consider that he was so acting, the actclearly purports to be (lone in his official capacity within the ordinarymeaning of the term ‘ purport The motives with which the actwas done do not enteT into the question at all ”.
These cases were followed in Muhammad Sharif r. Xasir AH 3 winchwas an action for malicious prosecution.
For tho reasons given by me earlier in the judgment I would dismissthe appeal with costs.
Pclle J.—I agree.
Appeal dismissed.