Back
SAMSUDEEN BHAI v. GUNAWARDENE
NLR37V367
1935 Present :
Akbar J. and Koch A.J.
SAMSUDEEN BHAI v. GUNAWARDENE.
191-D. C. (Inty.) Kandy, 41,215.
Public Servants' Liabilities
Ordinance-Action on a promissory note-Failure to claim the benefit of the
Ordinance-Execution proceedings when the defendant had ceased to be a public
servant-Liability-Ordinance No. 2 of 1899, ss. 3 and 4.
Where a public servant, who was sued on a promissory note, failed to plead
the benefit of the Public Servants' Liabilities Ordinance, he is not debarred
from raising the plea in execution proceedings against him in the same action,
even though he has ceased to be a public servant at that stage.
APPEAL
from an order of the District Judge of
Kandy.
R. C. Fonseka (with him J. R. Jayewardene), for plaintiff, appellant.
T. S. Fernando, for defendant, respondent.
Cur. adv .vult.
June 4, 1935. AKBAR J.-
This case raises an interesting and important point, under the Public
Servants' Liabilities Ordinance, No. 2 of 1899, which is a continuation of the
problem which was decided in the case of Narayan Chetty v, Silva [1 35
N.L.R.210.] The facts arising in this case which are material to this- appeal
are as follows:-The plaint was filed on May 27, 1931, by the plaintiff who is
obviously an Afghan money-lender, claiming the sum of Rs. 994.50 on a promissory
note dated August 9, 1930. Summons having been reported served on the defendant,
a decree was obtained on July 3, 1931. Apparently, the plaintiff recovered a
portion of his debt by the sale of the defendant's property and finding that he
could not get full satisfaction he applied on May 8, 1934, for a notice to
examine the defendant under section 219 of the Civil Procedure Code. On May 31,
1934, the defendant filed an affidavit in person, pleading the benefit of the
Public Servants' Liabilities Ordinance, as he was a Government Servant. This
affidavit was rejected on the ground that it was not properly stamped, whereupon
the correct stamp duty was
supplied on June 6, 1934, on which date, however, the defendant had ceased to be
a public servant. The case was finally inquired into on October 23, 1934. It was
admitted on behalf of the plaintiff that the defendant was a public servant who
was entitled to plead the benefit of the Ordinance, that the defendant was still
a public servant on May 31, 1934, when he filed his affidavit, and even on June
5, 1934, when the deficiency in the stamp duty was forwarded to the Court he was
still a public servant. But he had ceased to be a public servant on June 6, and,
of course, on the date on which the inquiry was-held, October 23,1934.
On the authorities cited to us, I have no doubt whatsoever with regard to the
law on the subject as stated in sections 2, 3, and 4 of the Ordinance. It will
be noticed that the word " action" includes not only legal proceedings, the
plaint, &c, but even any process of any kind which issues during the course of
the action. Section 3 states definitely that no action shall be maintained
against a public servant upon certain kinds of contract. All the facts are
admitted by the plaintiff by which it is clear that the action as instituted on
May 27, 1931, was in direct contravention of the provisions of section 3.
Section 4 of the Ordinance states that all proceedings and documents in or
incidental to an action in contravention of the Ordinance shall be void. So that
the whole proceedings including the promissory note, which was annexed to the
plaint, appear to be void under section 4, because the action at the time it was
instituted was in contravention of the provisions of the Ordinance.
Mr. Jayewardene, who appeared for the plaintiff-appellant, cited certain cases,
and he argued that as the object of the Ordinance appeared to be to protect
public servants from being worried by legal proceedings during their tenure of
service as such public servants, that object ceased to apply in this case to the
