1913 Present: Lascelles C.J. and Wood Renton J.

ABARAN APPU v. BANDA.

327-D. C. Kandy, 21,461

Civil Procedure Code, s. 461-Action against arachchi for malicious prosecution-No notice of action given-Public officer-" Act purporting to be done by him in his official capacity"

A public officer who does an act maliciously in the pretended exercise of his authority cannot be said to be " purporting to act" as a public officer, and is therefore not entitled to notice of action.

Where the defendant, an arachchi, maliciously and in order to satisfy a private grudge, brought a false charge against the plaintiff,- Held, that plaintiff was entitled to sue the defendant for damages without notice of action in terms of section 461 of the Civil Procedure Code.

THE facts appear from the judgment.

H. A. Jayewardene, for the defendant, appellant--The plaintiff should have give notice of action to defendant before he brought this action. Civil Procedure Code, section 461. " Purporting " in section 461 means " pretending." It does not matter whether the defendant acted actually, in his official capacity. If he pretended to act in his official capacity, he cannot be sued without notice. The word " purporting " has a wider meaning than " in pursuance of "; it means " in the ostensible exercise of."

The plaintiff ought to have averred in the plaint, and proved, circumstances which would excuse notice. It is not open to the plaintiff to say that he has given due notice, and then say, if notice was found not to have been given, that notice was not necessary. It is clear from the plaint that the plaintiff himself regarded the act of the defendant as an act in his capacity of a public servant.- It is not open to him now to say that defendant did not purport to act as a public officer.

Allan Drieberg, for the plaintiff, appellant.-The words " purporting to act " has the same meaning as "acting in pursuance of." The test whether notice is required or not is whether the defendant honestly intended to enforce the law. Appusingo Appu v. Don Aron,1[(1906) 9 N. L. R. 138.] Hermann v. Seneschal,2[(1862) 32 L.J. C. P. 43.] Roberts v. Crilean.[33 L. J. Exch. 65.] The real charge against the defendant is that he fabricated evidence against the plaintiff; such an act cannot be said to fall within the meaning of section 461.

H. A. Jayewardene, in. reply.

Cur. adv. vult.

January 20, 1913. LASCELLES C. J.-

This is an appeal against a judgment of the District Court of Kandy awarding the plaintiff damages for malicious prosecution by the defendant. The plaintiff's case is that the defendant, who is the arachchi of Yatawara, maliciously and in order to satisfy a private grudge, brought a false charge of stealing a calf against the defendant.

On the evidence I find it impossible to doubt that the charge, though preferred in the name of the korala, was in fact made by the defendant, and that it was made by him maliciously and falsely

His Lordship discussed the evidence and proceeded: -

There are several other circumstances which are mentioned in the judgment of the learned District Judge which go to show that the charge was a false one maliciously brought by the defendant. I am quite satisfied that the charge was false to the knowledge of the defendant. The question whether the plaintiff is debarred from bringing this action by the fact that he has not served notice on the defendant in accordance with section 461 of the Civil Procedure Code is fully discussed in the judgment of my brother Wood Renton, which I have had the advantage of reading.

I have come to the conclusion that the learned District Judge was right in following the judgment in Appusingo Appu v. Don Aron,1 the effect of which is that a public officer who does an act maliciously in the pretended exercise of his authority cannot be said to be " purporting to act " as a public officer, and is therefore not entitled