( 377 )
Present: Wood Benton A.C.J.
SILVA v. JONKLAAS.
392—0. R. Regatta, 11,875.
Civil Procedure Code, s. 461—Action against a public officer based oncontract—Notice not unnecessary.
The notice required by section 401 of the Civil Procedure Codeto be given to a public officer before the institution of action againsthim is not unnecessary in actions based on contract.
T HE foots are set out in the judgment.
W. Jayewardene, for plaintiff, appellant.—This is an actionbased on contract. No notice of action is necessary in respectof such actions. Rajmal Manikchand Marwadi v. Hanmant Anyaba.1Section 461 .of the Civil Procedure Code does not apply toactions based on contract.
A. St. 7. Jayewardene (with him E. A. L. Wijewardene), fordefendant, respondent.—No distinction i6 drawn between actionsbased on contract and other actions in section 461 of the CivilProcedure Code. The latest pronouncement of the Indian Courts isin favour of requiring notice in actions ex contractu. See Secretaryof State for India in Council v. Rajlucki Debi.2
November 12, 1913. Wood Benton A.C.J.—
The plaintiff-appellant sued the defendant-respondent, the Dis-trict Engineer of Kegalla, for the recovery of a sum of Bs. 221.12£,the price of goods alleged to have been supplied by him to a thirdparty at the defendant’s request. The defendant pleaded that theaction was not maintainable, inasmuch as the alleged request tosupply the goods had been made by him as a public officer, thathe had . received no notice of the action as required by section 461of the Civil Procedure Code, and that it was now prescribed. Thelearned Commissioner of Bequests upheld this contention anddismissed the action. The plaintiff appeals.
The ground urged in support of the appeal is that section 461 oftiie Civil Procedure Code does not apply to actions ex contractu.There is no direct local authority on the point. It was held, undersection 177 of the Municipal Councils Ordinance; 1865 (No. 17 of1865), that the provision in that section for notice of any actionagainst the Municipal Council, or any of its officers, “ for anythingdone or intended to be done under the provisions of the Ordinance,'*
i (1895) I. L. R. 20 Boml 697.* (1897) J. L. R. 25 Cal. 29.
, Silva v.Jonklaaa
applied only to actions ex. delicto. Compare WaUcer & Co. v. Muni-cipal Council of Kandy^ Jayasundera v. Municipal Council of Qatte,2Sidambaram Chetty v. Municipal Council of Colombo,s and there areEnglish authorities under similar enactments to the same effect*The language, however, of section 461 of the Civil Procedure Codeis different. It speaks of “ an act purporting to be done by theofficer in his official capacity.*' These words are quite wide enoughto include contracts, and I see no reason why they should not beheld to do so. The Indian decisions are in conflict. In BajmalManikchand Marwadi v. Hanmant Anyaba * it was held that section424 of the old Civil Procedure Code (Act XTV. of 1882), whichrequires notice to be given to a public officer two months before theinstitution of a suit against him, does not apply where the suit isone ex contractu. An entirely different view of the same sectionwas, however, taken by the High Court of Calcutta in Secretary ofState for India in Council v. Rajlucki Debt.5 I prefer the reasoningin the latter of these authorities, and dismiss the appeal with costs.
SILVA v. JONKLAAS