Muttupilla V. Bowes

1914 Present: Lascelles C.J. and Pereira J.

MUTTUPILLA v. BOWES.

122-C. R. Colombo, 36.745.

Section against the Principal Collector of Customs-Notice of action--Civil Procedure Code. s. 461 - Customs Ordinance. No. 17 of 1869, s. 122.

Section 461 of the Civil Procedure Code, which enacts inter alia that no action should be instituted against a public officer in respect of an act purporting to be done by him in his official capacity until the expiration of one month next after notice in writing has been delivered to him, must be deemed to have repealed by implication the provision of section 122 of Ordinance No, 17 of 1869. which specially provided for fifteen days' notice of action in the case of officer- of the Customs. The maxim generalia specialibus non derogant applies only where the particular statue relied upon is a statute in favour of a particular class of persons or the property of a particular class.

But, per Pereira. J., section 461 of the Civil Procedure Code does not lay down any matter of substantive law, but provides for a link in the chain of the procedure necessary for the recovery of the claims referred to in it. Section 4 of the Civil Procedure Code, therefore, conserves the provision of section 122 of Ordinance No. 17 of 1869, there being no express repeal or modification of

Per Pereira J.-Where in an action against a defendant (described in the caption of the plaint as the Principal Collector of Customs) for the return of certain goods detained by him in his capacity of Collector, there was no averment in the plaint that he acted mala fide, in detaining the goods or outside the scope of his authority,-

Held, that the claim should have been made against the Attorney-General, and not the defendant in his official capacity.

Lascelles C.J.-The provisions of section 461, which require one month's notice to be given of all actions against the Crown or against public officers, has superseded the special provisions of section 122 of the Customs Ordinance.

APPEAL from a judgment of the Commissioner of Requests, Colombo (T. W. Roberts, Esq.).

The case was reserved for argument before a Bench of two Judges by Pereira J.

The facts appear from the judgment of Lascelles C.J.

Samarawickreme (with him Canekeratne), for the plaintiff, appellant.-The plaintiff has given fifteen days' notice of action, as required by the Customs Ordinance (No. 17 of 1869, section 122). The Commissioner was wrong in dismissing the plaintiff's action on the ground that one month's notice, as required by section 461 of the Civil Procedure Code, was not given. The Civil Procedure Code did not repeal the provisions of the Customs Ordinance as to notice. The special provision as to notice of actions against Customs officers is not touched by the Civil Procedure Code, which makes provisions as to actions against public officers generally. Generalia specialibus non derogant. Counsel cited Kalu Menika v. Kerala,1 Jalaldeen v. The Municipal Council of Colombo,2 Barker v. Edger,3 Maxwell on the Interpretation of Statutes, 6th ed., p. 285,

The proviso to section 4 of the Civil Procedure Code shows that section 461 of the Civil Procedure Code does not affect the provisions of section 122 of the Customs Ordinance.

van Langenherg, K.C., S.-G. (with him V. M. Fernando. C.C.), for the plaintiff, respondent.-The maxim generalia specialibus non derogant applies to cases where the earlier statute confers a privilege on a particular class of persons. See Garnett v. Bradley.4 In the present case the Customs Ordinance does not confer any privilege on any particular class. If section 122 confers a privilege on Customs officers, the provisions of section 461 of the Civil Procedure Code extend the privilege, and do not restrict it. Therefore, the maxim relied upon by appellant does not apply.

The provisions of section 461 of the Civil Procedure Code and section 122 of the Customs Ordinance are inconsisten

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