WEERASINGHE V. DE SILVA

024-SLLR-SLLR-1994-V2-WEERASINGHE-V.-DE-SILVA.pdf


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[1994!2SriL.R
WEERASINGHE
v.
DE SILVA
SUPREME COURT.
BANOARANAYAKE, J.
FERNANDO, J. ANDKULATUNGA, J.
S.C. APPEAL NO. 48/88.
JUNE 3,1991.
Notice of action – Civil Procedure Code, s. 4$1 and Form No. 71.
U-tJ.
non:
The object of section 461 of the Civil Procedure Code is to afford an opportunity tothe person concerned to consider his position in regard to a claim and come toterms of settlement or settle the claim in full without taking the risk and trouble oflitigation. Form No. 71 containing the form of notice is directory only. If itenumerates in sufficient detail the cause of action and the relief claimed it wouldbe an adequate compIiance.lt is not necessary to state the notice is under s. 461.
De Silva v. Uangakoone 57 NLR 457.
Saiboo and Others v. Attorney-General 48 NLR 574.
Munnich v. Godstone Rural District Hospital [1966] 1 All ER 930.
Howard v. Secretary of State for the Environment [1974] 1 ALL ER 644.
APPEAL from judgment of Court of Appeal.
E. D. Wickramanayake for defendant-appellant.
H. L de Silva, P.C. with B. Rajapakse for plaintiff-respondent.
Cur. adv. vult.
July 16,1991.
BANOARANAYAKE, J.
This appeal involves the determination of a question of law. Itrelates to the notice that ought to go out under s.461 of the CivilProcedure Code before the institution of an action against a publicofficer in respect of an act purporting to be done by such person inhis official capacity.
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Weerasinghe v, Dei Silva (Bandaranayake, J.)
249
The plaintiff-respondent complained that the defendant-appellantInspector of Police maliciously charged him before the Magistrate’sCourt for being in possession of an unlicensed revolver, in breach ofthe provisions of s. 22(1) of the Firearms Ordinance. The plaintiff alsocomplained that he was wrongfully confined for a period of fourmonths. The plaintiff had been acquitted by the trial Court on11.10.72. Consequently no action for damages would have beenmaintainable unless it was commenced before 11.10.74.
The facts bearing upon the plaintiff s acquittal are not contested.On 16 August 1974 the plaintiff's Attorney-at-Law sent out thefollowing letter to the defendant-appellant. It has been marked inevidence at the trial in the District Court as P6. It reads as follows:
*P6
No. 120, Trincomalee Street, Matale,
16th August 1974.
Gamini D. Weerainghe, Esqr.,
Inspector of Police, Gampaha.
Dear Sir,
I am instructed by G. P. Chularatne de Silva of Mahawela inMatale District, to demand of you the immediate payment of thesum of Rs. 50,000/- being damages suffered by my clientcausing great pain of body and mind and damage to reputationto him consequent to your maliciously prosecuting him in M.C.Matale Case No. 37305 charging my client with possessing anunlicensed firearm to wit: “a revolver' without a licence or permitfrom the Government Agent, Matale, and thereby committing anoffence under the Firearms Ordinance of which charge he wasacquitted and for wrongful arrest and confinement of my clientfor a period of four months.
Should you fail to comply with the requirement of this demandwithin seven (7) days time my further instructions are to sue youat law for the recovery of the said sum of Rs. 50,000/- and costsof action.
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Allow me however to recommend an amicable settlement.
Yours faithfully,
(Sgd)
Proctor, S.C. (Now Attorney-at-Law)"
Thereafter one finds that the Attorney-at-Law for the plaintiff-respondent wrote another letter to the defendant-appellant dated9.9.74 which has been marked in evidence as P7.
It reads:
“P7.
No. 120, Trincomalee Street, Matale.
9 September.
Registered.
Gamini D. Weerasinghe, Esq.,
Inspector of Police.
Police Station. Gampaha.
Dear Sir,
Notice under S.461 Civil Procedure Code.
On instructions from Mr. G. P. H. Chularatne de Silva ofMahawela in Matale District, I hereby give you notice underSection 461 of Civil Procedure Code that an action at lawwill be instituted against you after 30 days from date hereofin the District Court of Matale consequent to your havinginstituted criminal proceedings against my client in M.C. MataleCase No. 37305.
Cause of Action: 1. Maliciously prosecuting my client in M.C.Matale Case No. 37305 on a charge of possessing anunlicensed firearm to wit: a revolver, on 19 June 1971 without alicence from the Government Agent, Matale.
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Weerasinghe v. De Silva (Bandaranayake, J.)
251
2. Maliciously arresting my client on the above charge on 19June 1971 and keeping him in custody for a period of 4 monthsand 11 days. Name and Place of abode of my client whointends to institute action against you: Gardiye Punchi HewageChularatne de Silva of Mahawela, Matale District.
Relief Claimed: Rs. 50,000/- being damages suffered by myclient consequent to your wrongful acts.
Yours faithfully,
(Sgd)
Attorney for Mr. G. P. H. Chularatne de Silva.’
Received on 11.9.74.”
The date of receipt was a handwritten endorsement made by thedefendant. The plaint filed on 10 October 1974 the cause of actionbeing for causing pain of mind and injury to reputation by reason ofmalicious prosecution – M.C. Matale Case No. 37305. Damages wereclaimed in a sum of Rs. 50,000/-. The point to be observed here is thedate of the filing of the plaint which as I have said was on the 10thOctober 1974. Having regard to the fact that the plaintiff-respondenthad been acquitted in the criminal case 11.10.72, the action wouldhave been prescribed if it had been filed on 11.10.74 or thereafter.Section 461 of the Civil Procedure Code stipulates that one month’swritten notice should be given and that that notice should bedelivered to the party being used before action is instituted. If P6 isconsidered to be a proper notice coming within the requirements ofs.461, time is not relevant because P6 was sent out on the 16th ofAugust 1974 which gives substantially more than one month writtennotice. If, however, P6 is not regarded as a notice the plaintiff fallsback on P7 which is dated 9 September 1974. P7 has been deliveredonly on 11 September. Thus the plaint which was filed on the 10thOctober has been filed one day before the expiry of one month sinceP7 was delivered to the defendant in which event there is nocompliance with the provisions of s.461.
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It was submitted by Counsel for the defendant-appellant that grossprejudice had been caused to his client by the lower Court's holdingthat due notice in terms of s.461 had been given for otherwise theaction was prescribed. It was argued on behalf of the defendant-appellant that P6 does not constitute a notice to which the defendant,a public officer, was entitled to under S.461. Counsel for theappellant argued that P6 was nothing more than a letter of demandrequiring the immediate payment of a sum of Rs. 50,000/- beingdamages suffered by the plaintiff consequent to the allegedmalicious prosecution and informing him that if he fails to satisfy thedemand within seven days the defendant would be sued at law forthe recovery of the said sum of Rs. 50,000/- and costs. Counselsubmitted that P6 should be taken to mean what it says and not tostretch its meaning to say that it amounted to a notice of action asrequired by the Code. Counsel relied on the judgment of Basnayake,C.J., in De Silva v. Illangakoone <” where it was held that the noticeunder s. 461 of the Civil Procedure Code was a condition precedentto the institution of an action against a public officer and that therequirements of this section should be strictly observed and thenotice should be in the form prescribed in the Schedule to the Code.The notice should indicate to the recipient that the communication ismeant to be a notice under that Section and inform him of allparticulars. It was held that procedural provisions are imperative andfailure to observe them is fatal to an action. Counsel also argued thatalthough P7 was in that proper form and was in fact the only noticesent in terms of s.461, action had been instituted before the expiry ofone month after delivery of P7 and that therefore the action was badin law.
Learned Counsel for the plaintiff-respondent submitted that theview expressed in the case of de Silva v. Illangakoone (supra) wastoo strict and that a less stringent attitude should be adopted by theCourts in regard to satisfaction of the provisions of $.461. It wassubmitted that the object of the legislature requiring notice was toafford an opportunity to the public officers mentioned in the Sectionand consider their position in regard to the claim made and either tomake amends in some form for the injury caused or settle the claimwithout recourse to the trouble, delay and costs of litigation. Counselsubmitted that the object of the legislature had been satisfied by the
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SCWeerasinghe v. De Sitva (Bandaranayake, J.)253
plaintiff-respondent in this case when he delivered the letter F6 to thedefendant-appellant. When one reads the whole of P6 it is clear thatthe defendant is being informed and given notice of the plaintiff'scomplaint that an action at law will be instituted for the cause ofaction, which has been the malicious prosecution of the plaintiffbefore Magistrate's Court which action by the defendant causedinjury to mind and body and reputation and that the defendant wouldhave to attorn for his malicious conduct by the payment of damagesin a sum of Rs. 50,000/- and that failure to comply would result in therecovery of the said sum by the institution of an action it was theargument of Counsel for the respondent that the principal matterscontained within the provisions of the Section had been fully met byP6 and that therefore it was unnecessary for the plaintiff to have sentout letter P7 as well but that the plaintiff did so merely out of anabundance of caution and not in recognition of non-compliance withthe requirements of s.461. Counsel relied on the decision ofJayatillake, J. in Saiboo & Others v. Attorney-General ® which is anappeal from the Court of Requests that has been decided by a singleJudge. In that judgment Jayatillake, J. has referred to the object ofthe legislature in enacting s.416 and also relied on an Indian authorityfor his decision.
Counsel for the plaintiff-respondent also relied on two Englishcases. The case of Munnich v. Godstone Rural District Hospital(3)which case dealt with the validity of an enforcement notice issued bythe District Council requiring the persons named in the notice to dosomething. Lord Denning held that he no longer favoured formalitiesbeing used to defeat the public good. His Lordship rejectedtechnicalities and applied the simple test "Does the notice tell himfairly what he has done wrong and what he must do to remedy it." InHoward v. Secretary of State for the Environment,4>, Lord Denning, M.
R.dealt with the enforcement notice under the Town and CountryPlanning Act. It was held that the written notice required by s. 16(1) ofthe Act to be given within a certain period specified in the notice wasimperative and went to jurisdiction; but the requirement under s.16(2)that the notice of appeal should specify the grounds and the facts wasdirectory only and failure to comply with them did not bar the appeal.
Respondent’s Counsel in the instant case argued that theexistence of form No. 71 giving a form of notice under this Section ismerely directory in nature and that simply because P6 was not in that
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form it did not mean that it could not be considered as a notice unders.416 as all the matters referred to in that section had been includedin P6 and that therefore the plaintiff has validly instituted this actionbefore the District Court.
Part IV. Chapter XXXI of the Code relates to actions in particularcases. The provisions of s.461 of the Code casts a specific duty toserve notice on those entitled to notice under the provision. Itstipulates –
a time period within which the notice must be given – one
month
a particular manner (ie) it must be written notice;
that the cause of action must be stated;
the name and address of the person intending to institutethe action must be stated; and
the relief claimed. I
I am inclined to respectfully agree with the view expressed byJayatillake, J. in Saiboo and Others v. Attorney-General (supra) thatthe objects of this provision are to afford an opportunity to the personconcerned to consider his position in regard to a claim and come toterms of settlement or settle the claim in full without taking the riskand trouble of litigation. In fact the parties in this case had failed toarrive at a settlement before the Conciliation Board according to theCertificate of the Chairman dated 29 September, 1974. It wouldappear therefore that the defendant-appellant was in any case fullyaware of the cause of action and the relief claimed by the plaintiff atthe time plaint was filed. Again s.416 does not require that the noticecontemplated should inform the recipient that it was a notice unders.461.1 am of the view that Form No. 71 containing the form of noticeis directory only. P7 may be conveniently disregarded as it fails tosatisfy the time frame contemplated by the Section which must beregarded as imperative. We have letter P6 which has been deliveredto the defendant well within the time frame aforesaid. It gives allrequired particulars of the claimant; it enumerates in quite sufficientdetail the cause of action and relief claimed. Indeed the plaint filed
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Weerasirtghe v. De Silva (Bandaranayake, J.)
255
did in paragraph 8 claim that due notice had been given. This hasbeen repeated in the amended plaint filed. Thus it appears to me thatall the conditions set out in the section have been satisfied. The factthat P6 uses the language of a letter of demand and stipulates a timeframe of 7 days within which the demand should be met failing whichaction would be instituted cannot be said to have misled thedefendant or caused prejudice to him in any way as the section doesnot require attention being drawn to the fact that it is a notice unders.461. The particulars mentioned in P6 provided the defendant anopportunity to consider the claim and offer a settlement. In thecircumstances P6 in my view satisfies the requirements of s. 461 andcould be considered a valid notice within terms. The judgment of theCourt of Appeal is affirmed and this appeal is dismissed with costs.
FERNANDO, J. -1 agree.
KULATUNGA, J. -1 agree.
Appeal dismissed.