174-NLR-NLR-V-48-SAIBO-et-al-Appellants-and-THE-ATTONEY–GENERAL-Respondent.pdf
574
Saibo v. The Attorney-General.
1947Present: Jayetileke J.
SAIBO et al, Appellants, and THE ATTORNEY-GENERAL,
Respondent.
S. C. 59—C. R. Colombo, 3,424.
Civil Procedure Code—Action against Attorney-General—Recovery of moneyfrom Principal Collector of Customs—Notice of action—Section 461.Plaintiffs sued .the Attorney-General for the recovery of a sum ofmoney alleged to have been unlawfully recovered from them by thePrincipal Collector of Customs. They had previously given notice tothe Attorney-General that they would file action against the PrincipalCollector of Customs for the recovery of that sum.
Held, that the notice did not comply with the requirements of section461 of .the Civil Procedure 'Code and that the action was not maintainable.
' (1873) SO Sutherland?8 Weekly Reporter—Criminal Rulings at pp. 8 and 9.
4 A. I. R. (1924) AUahabad 670.
3 41 Criminal £aw Journal 898.
JAYETCLEKE J.—Perera V. Perera.
878
A
PPEAL from a judgment of the Commissioner of Requests,Colombo.
Chellappah, for the plaintiffs, appellants.
V. Tennekoon, C.C., for the defendant, respondent.
Cur. adv. vuit.
October 21, 1947. Jayatiueke J.—
The plaintiffs instituted this action against the Attorney-Generalfor the recovery of a sum of Rs. 25 alleged to have been unlawfullyrecovered from him by the Principal Collector of Customs as a penalty.Before instituting the action, they served on the Attorney-General anotice that they would file an action against the Principal Collector ofCustoms for the recovery of the said sum. At the trial, Crown Counseltook the objection that the plaintiffs could not maintain the actionas they had failed to comply with the provisions of section 461 of theCivil Procedure Code.. That section provides that no action shall beinstituted against the Attorney-General as representing the Crown,until the expiration of one month next after notice in writing has. beendelivered to such AttomeyGeneral, stating the cause of action and thename and place of abode of the person intending to institute the actionand the relief which he claims. The learned Commissioner upheld theobjection on the ground that the notice which the plaintiffs served onthe Attorney-General was that they intended to institute an actionnot against him but against the Principal Collector of Customs.
In Tampoe v. Murugesu1 Wood Renton J. held that the language ofsection 461 is imperative and absolutely debars a Court from entertaininga suit instituted without compliance with its provisions.
The object of the legislature in requiring the notice seems to be toafford to the Attorney-General an opportunity to reconsider his positionwith regard to the claim made, and to make amends or settle the claim,if so advised, without recourse to the trouble and cost of litigation. SeeSecretary of State v. Kundan Singh. This opportunity was not givenby the plaintiffs.
I am, therefore, of opinion that the judgment of the learned Com-missioner is correct, and I would, accordingly, dismiss the appeal withcosts.
Appeal dismissed.