081-NLR-NLR-V-48-SANGARAPILLAI-Appellant-and-THE-ATTORNEY-GENERAL-Respondent.pdf
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Sangarapillai v. The Attorney-General.
1947Present: Wijeyewardene and Jayetileke JJ.
SANGARAPILLAI, Appellant, and THE ATTORNEY-GENERAL,
Respondent.
121—D. C. Inty, Jaffna, 492.
Customs Ordinance (Cap. 185), s. 127—Pleadings—Claim in plaint for a sumexceeding Rs. 1,000 as penalty—Amendment of plaint claiming samesum as forfeiture or penalty—Objection raised that such amendmentwould permit a claim which would otherwise be prescribed—Validity ofsuch amendment.
The Attorney-General sued the defendant for the recovery of a sum ofRs. 21,000 as “ penalty ” due under the provisions of section 127 of theCustoms Ordinance. More than two years after the institution of theaction the Court permitted the plaint to be amended by the" substitutionof the words “ a forfeiture or penalty equivalent to treble the value of thegoods …. for the word “ penalty The defendant, thereupon,moved that the amended plaint be rejected on the ground that it soughtto substitute a new cause of action for the original cause of action andthat the amendment, if allowed, would have the effect of permitting theplaintiff to sue on a cause of action which was prescribed at the time theamended plaint was accepted.
Held, that the amended plaint did not introduce a new cause of actionbut set out more clearly how the relief asked for on the original cause ofaction was assessed.
PPEAL from an order of the District Judge of Jaffna.
H. V. Perera, K.C. (with him C. Renganathan), for the defendant,appellant.
H. W. R. Weerasuriya, C.C., for the Attorney-General.
WUE YE WARDEN E J.—Sangarapillai v. The Attorney-General. 247
May 14, 1947. Wijeyewardene J.—
The Attorney-General instituted this action in February, 1943, for therecovery of a sum of Rs. 21,000. It was alleged that the AssistantCollector of Customs, Jaffna, seized on October 10, 1942, a lorry carrying62 bundles of beedies imported into Ceylon without payment of customsduties and that the lorry and the beedies were forfeited to the Crownunder the Customs Ordinance. The Attorney-General then proceededto set out his claim for Rs. 21,000 as follows in paragraph 4 of the plaint: —
“ That the Collector of Customs, Northern Province, acting underthe provisions of section 127 of the Customs Ordinance, did onNovember 26, 1942, impose on the defendant a penalty of Rs. 21,000in that the defendant was knowingly concerned in conveying andremoving the said beedies being goods liable to duties of Customs,with intent to defraud the revenue of such duties.”
The defendant filed answer, pleading, inter alia, that “ customs duty…. was duly paid at the place of importation, namely, Kayts
He pleaded further “ that in any event the alleged penalty of Rs. 21,000was not legally imposed
There was a great deal of discussion when the Counsel for the plaintiffand the defendant proceeded under section 146 of the Civil ProcedureCode to state, in the form of issues, the various questions of fact andof law to be decided in the case. At the close of the discussion, theDistrict Judge said : —“ I am disposed to allow the issues (suggestedby plaintiff’s Counsel) but I think the proper course would be for theCrown to amend its pleadings thus giving the defendant an opportunityof meeting the averments in respect of them ”. In pursuance of theDistrict Judge’s order an amended plaint was filed on August 20, 1945.The material amendment was effected by paragraph 4 of the new plaintwhich read : —
“ That the Collector of Customs, Northern Province, acting underthe provisions of section 127 of the Customs Ordinance, did find thatthe defendant was knowingly concerned in conveying and removingthe said beedies, being goods liable to duties of Customs with intentto defraud the revenue of such duties, and the said Collector didelect to impose on the defendant a forfeiture or penalty equivalentto treble the value of the goods the defendant was knowingly concernedin conveying or removing with intent to defraud the revenue of suchduties. ”
The defendant filed “ a statement of objections ” and moved thatthe amended plaint be rejected for the reasons given in that statement.After hearing argument the District Judge made order accepting theamended plaint and the present appeal is preferred against that order.
It was argued in appeal:—
that the amended plaint sought to substitute a new cause ofaction for the original cause of action.
248WUEYE WARDEN E J.—Sangarapillai v. The Attorney-General.
that the new cause of action could not have been in existence
at the time the original plaint was filed,
that the amendment, if allowed, would have the effect of permitting
the plaintiff to sue on a cause of action which was prescribedat the time the amended plaint was accepted,
that this was a penal action, and, therefore, no amendment of the
plaint should be allowed.
The main argument of the appellant’s Counsel is based on certainwords in section 127 of the Customs Ordinance. That section enacts : —
“ Every person …. who shall be knowingly concernedin conveying, removing, depositing, concealing or in any mannerdealing with any goods liable to duties of customs with intent todefraud the revenue of such duties …. shall in each andevery of the foregoing cases forfeit either
treble the value of the goods, or
the penalty of one thousand rupees,
at the election of the Collector of Customs. ”
I have inserted (A) and (B) in the latter part of the section for facilityof reference in the course of this judgment.
That section creates the liability of a defaulter to pay a certain sumdemanded by the Collector of Customs and states that the Collectorcould fix the sum to be demanded either under (A) or (B). Most probably,the Collector would, in the absence of any mitigating circumstances,proceed under (B), if treble the value of the goods is less than Rs. 1,000.It is, however, left to the discretion of the Collector whether he shouldproceed under (A) or (B) in assessing the liability of the defaulter. TheLegislature has vested the Collector with a very wide discretion, as maybe seen by reference to section 155 which empowers him, in an appro-priate case, to claim an amount less than treble the value of the goodsor the sum of Rs. 1,000 mentioned in section 127. The position, therefore,is that a defaulter is made liable to pay a sum duly demanded by theCollector of Customs and the Collector is given the right to assess theamount according to (A) or (B) and demand the payment of a sum evenless than the amount so assessed.
As paragraph 4 of the original plaint refers to the amount claimedas a “ penalty ” imposed by the Collector, the appellant’s Counselargues that it should be presumed that the Collector elected in the firstinstance to assess under (B) the amount payable by the defendant. It isargued therefrom that the Attorney-General could not have claimed morethan Rs. 1,000 in the original plaint. It is then contended that in theamended plaint the Attorney-General is presumably relying on a sub-sequent election made by the Collector after the filing of the originalplaint to assess the liability of the defendant under head (A). All thatreasoning is made the basis for the argument that in the amended plaintthe Attorney-General is seeking to introduce a new cause of action basedon an election made by the Collector after the filing of the original plaintand the amended plaint should not therefore be accepted.
The King v. H. K. S. Fernando.
249
It will be seen that the whole argument rests on the assumption that theuse of the word “.penalty” in paragraph 4 of the original plaint affordsproof of an election by the collector to assess the defendant’s liabilityunder (B). To uphold that contention would be to ignore the fact thatthe Collector has fixed the liability at Rs. 21,000 which he could not dounder (B). I believe the draftsman of the plaint used the word “ penalty ”to mean a fine or foreiture and not to indicate in any way that theassessment was made under (B).
On the Collector assessing the amount under (A), the original plaintjvas filed in respect of the amount so annexed. As the defendant’s mind,however, appeared to be assailed with doubts whether the Collector madehis assessment under (A) or (B), the District Judge considered it wouldbe proper to remove the doubts of the defendant "by making it clear thatthe amount was, in fact, made undpr (A). The amended plaint was,therefore, filed by the Attorney-General in compliance with that directionof the District Judge. The amended plaint does not introduce a newcause of action but sets out more clearly how the relief asked for onthe original cause of action was assessed.
It is not necessary to consider the other points raised by the appellant’sCounsel in view of the opinion I have expressed above.
I dismiss the appeal with costs.
Jayetileke J.—I agree.
Appeal dismissed.