Urban District Council, Matale V. Sellaiyah

1931 Present: Lyall Grant J.

URBAN DISTRICT COUNCIL, MATALE v. SELLAIYAH.

238-C. R. Matale, 532.

Contract-Agreement to contribute towards cost of constructing drain-Binding promise-prescription-Written agreement-Jurisdiction-Ordinance No. 11 of 1920, s. 224.

An Urban District Council informed the defendant that it proposed to construct a drain and asked him to make a contribution towards the cost. The defendant agreed to contribute a certain sum of money. The Council, thereupon, constructed the drain.

Held (in an action by the Council to recover the money), that the agreement was binding upon the defendant.

Held further, that the cause of action falls for prescription under section 7 of Ordinance No. 22 of 1871, as being upon a written, promise.

Held also, the jurisdiction of the Court of requests was not ousted by section 222 of the Local Government Ordinance, No. 11 of 1920.

APPEAL from a judgment of the Commissioner of requests, Matale.

Nadarajah (with him Abeyesekere), for defendant, appellant.

Navaratnam:, for plaintiff, respondent.

June 10, 1931. LYALL GRANT J.-

The plaintiff in this action, the Urban District Council of Matale, sues to recover the sum of Rs. 60 with interest from the defendant in pursuance of an agreement by the defendant to contribute that sum towards the construction of a certain drain. The drain was duty completed but the defendant failed to pay.

The issues en which the case went to trial were : --

(1) Has the Court of requests jurisdiction?

(2) Was the claim prescribed?

(3) Did the defendant agree to pay a contribution?

(4) Was the agreement conditional?

(5) If so, was there a violation by the plaintiff of such condition or conditions?

(6) Amount due?

The Court of requests answered all the issues in the plaintiff's favour and gave decree for the sum sued for with interest.

It was argued in appeal that the learned Commissioner was wrong on each issue.

On the first, that of jurisdiction, it was argued that section 222 of the Local Government Ordinance, No. 11 of 1920, excluded the jurisdiction of the Commissioner of requests and gave exclusive jurisdiction to the Police Magistrate in claims for less than Rs. 100.

I do not think that is the meaning of the section which deals only with the assessment and apportionment of sums payable under the provisions of the Ordinance as damages, costs, or expenses; that is to say that before a Court proceeds under this section it must already have been decided that money is payable.

It was aruged that section 224 extended the provisions of section 222. Section 224 empowers the Court to review in the manner prescribed by section 222 the amount of any expenses incurred in executing a work which by Ordinance or rule the owner of any house, building, or land is required to execute.

In the present case it has not been shown that the defendant was required to make this drain, and it cannot therefore be successfully maintained that this section applies.

The Court of Requests is the tribunal having ordinary jurisdiction in claims of this nature and I am not satisfied that its jurisdiction has been ousted.

The plea of prescription is based on section 9 of the Prescription Ordinance, No. 22 of 1871. It is alleged that this is an action for work and labour done and that it is not maintainable, since it was not brought within one year after the debt became due.

It is agreed that the debt became due on April 9, 1929-the date of the letter of demand, and the plaint was not filed till September 24, 1930. The plaintiff maintains that this is not an action for work and labour but is one on a written promise or bargain prescribing in six years (section 7) or alternatively on an unwritten promise or bargain, prescribing in 3 years (section 8).

Defendant's counsel referred me to Walker, Sons & Company, Limited v, Kandyah.1[(1919) 21 N. L. R. 317.] where a claim for repa

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