119-NLR-NLR-V-74-THE-SECRETARY-TO-THE-TREASURY-COLOMBO-Appellant-and-A.-MEDIWAKE-Respondent.pdf
SIRTMAXE, J.—Secretary to the Treasury, Colombo v. Afediuake
505
1971Present : Sirimane, J., and Wijayatilake, J.
THE SECRETARY TO THE TREASURY, COLOMBO, Appellant,
and A. 3JDSDIWAKE, Respondent
S.G. 1SS/G9 {Inty.)—D.G. Colombo, 1768/ZI
Public officers—Action instituted against a public officer—Right oj Attorney-Generalto undertake the defence—Scope of s. 403 of Civil Procedure Code—Appealfiled by public officer—Security for respondent's costs in appeal—Exemptionof Crown from tendering it.
Tho Attorney-General may undertake the defence of a public officer, althoughha has not mado an application under section 403 of the Civil Procedure Codeto have his name substituted ns the party defendant. In such a case, if thepublic otTicer files an appeal, tho Crown is not bound to give security for thorespondent’s costs in appeal.
Whcro an action against a Public office which is held by different personsat different times is dismissed with costs on tho ground that for tho purposes 'of instituting tho action tho defendant named in tho caption was not n legal‘‘persona ” and that ho was a “ non-existent person ”, tho person physicallyin existence ns named in tho plaint is entitled to the issuo of writ for therecovery of costs.
.A. PPEAL from an order of tho District Court, Colombo.
K. 31. 31. B. Kulatunya, Crown Counsel, for tho defendant-appellantPlaintiff-respondent absent and unrepresented.
September 14, 1971. Sirimane, J.—
A preliminary objection had been lodged in tho loner Court to thehearing of this appeal as no security for costs of appeal had been furnishedby tho appellant.
Tho plaintiff-respondent filed this action against ‘Mho Secretary totho Treasury Proxy was filed by the Crown Proctors on behalf of thoperson holding that offico at that time, and after answer had also beenfiled, Crown Counsel appeared at tho trial.
It is obvious that tho Attorney-General had undertaken tho dofenco oftho officer concerned, although there was no strict compliance with Section4G3 of tho Civil Procecluro Code. When Public Officers are sued, it is thopractico for Crown Proctors to file their proxy and a Crown Counsel toappear at the trial, and this practice has been recognised and approved inVetlivelu v. Wijcralne 1. It has long been recognized that the Crown is
1 (1056) CO N. L. H. 442.
504
STRIMANE, J.— Secretary to the Treasury, Colombo v. Mediu'ake
.not bound to give security for a respondent’s costs in appeal—VideKekulaicala v. Attorney-General which was decided as far back as1911. The preliminary objection to the hearing of tho appeal thoreforefails.
Tho appeal is by the defendant from an ordor refusing the issue of writfor tho recovery of costs.
The action was filed, as statod earlior, against " Tho Secretary to thoTreasury ”, Thero is in fact such a Public office, which is held by differentpersons at different times. Summons was served on tho person holdingthat offico at tho address given in tho plaint. Proxy and answer werefiled by that person as named in the plaint. Ono of tho objections takenin tho answer was that the action had been filed against tho wrong personas the defendant named was not t ho legal “ jicrsona ” capable of boing sued.This objection was upheld and tho action was dismissed with costs. There' was no appeal from that judgment. In the course of the judgment thelearned Judgo stated that the defendant was " a non-oxistont personIt is obvious that ho meant, that for the purposes of instituting an actionthe defendant named in the caption was not a legal persona. It isfallacious to arguo from tho uso of that phrase that thoro was no porsonphysically in existence as named in tho plaint. Tho application forissue of writ by tho defendant has been refused on that basis, which in myopinion is erroneous.
Tho application to issuo writ is allowed.
Wijayatilake, J.—I agree.
Appeal allowed. *
* (1911) 30 N. L. JR. 61.