APPUSINGO APPU v. DON ARON.

Present: Mr. Justice Wood Renton.

APPUSINGO APPU v. DON ARON.

C. R., Colombo, 33,764.

Notice of action-" Purporting to act "-Mala fide-Forest Ordinance (No. 10 of 1885), ss. 70 and 78-Courts Ordinance (No. 1 of 1889) -Civil Procedure Code, ss. 461, 463, and 464.

WOOD RENTON J.-A public officer who does an illegal act Mala fide in the pretended exercise of statutory powers cannot be said to be " purporting " to act under the statute which confers those rights  within the meaning of section 461 of the Civil Procedure Code, and is therefore not entitled to the notice of action provided for by that section.

THE plaintiff sued the defendant, a police officer, for damages for unlawful seizure of timber, in the possession of the plaintiff, which the defendant alleged had been unlawfully removed by the plaintiff from Crown land. The Commissioner held that the defendant had acted in bad faith in seizing the timber and did not honestly believe that the timber had been cut on Crown land, but dismissed the action on the ground that notice of action had not been given by plaintiff to defendant, as required by section 461 of the Civil Procedure Code.

The plaintiff appealed.

Garvin, for plaintiff, appellant.-The defendant acted maliciously and not bona fide. A public officer is only entitled to notice when he honestly intends to act in pursuance of the powers vested in him. The word " purporting " does not mean "pretending " but " intending ". [WOOD RENTON J.-It is conceivable that a public officer may have acted mala fide and still be entitled to notice.] Yes, provided the act to which he was moved by malice was one which he was lawfully entitled to do. It is submitted that a public officer cannot mala fide do that which he had no honest belief he was empowered to do, and still claim the benefit of sub-section 1 of section 461, Hermann v. Seneschal(1(1862) 82 L. J. Rep. (N.S.) C. P. 43.).

E. W. Perera, for defendant, respondent.-Defendant admittedly acted as a public officer. Plaintiff himself admits it, and it is only as headman he could have entered plaintiff's land and removed the

timber, In these circumstances he is entitled to a month's notice  under section 461, Civil Procedure Code. "Purporting " in the section means " pretending," and even if defendant acted mala  fide he was still entitled to notice, being sued for an act done in his official capacity, Bahadur v. Price(1).

Garvin in reply,-He may have acted maliciously; still, to be entitled to notice he must have honestly believed he was entitled as public officer to do the act, King v. Chamberlain(2).

23rd May, 1906. WOOD RENTON J.-

In this case the question of law raised is of considerable interest and importance. The facts are simple. The respondent, Leanage Don Aron, who is police vidane of Ooruwella, seized certain rafters in the possession of the appellant which he alleged had been unlawfully removed by him from Crown land. It transpired that this seizure was in itself unlawful, inasmuch as the land in question was private land; and the appellant thereupon sued the respondent in the Court of Requests of Colombo claiming the value of the timber seized. At the trial of the case certain issues were framed and the learned Commissioner decided all these issues, except one, in favour of the plaintiff. He held that the timber in question had not been felled from Crown land; that it had been lawfully removed by the plaintiff; and that its seizure by the respondent was unlawful. He valued the timber at Rs. 10 and assessed the damages at Rs. 5. In his answer to the appellant's plaint, however, the respondent had raised the issue that it; what he had done he had acted as a public officer, and that he was therefore entitled to the one month's notice of action provided for by section 461 of the Civil Procedure Code in regard to proceedings against such officer for anything " purporting " to be done

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