Ratnavira V. Superintendent Of Police (C.I.D.) Et Al.,

1950 Present . Wljeyewardene C.J. and Pulle J.

RATNAVIRA, Appellant, and SUPERINTENDENT OF POLICE (C.I.D.) et al., Respondents

S.C . 261-D. C. Colombo, 16,840

Action against public officer-Filed before expiration of one, month after notice of action-No evidence that defendant acted mala fide-Failure of due notice of action-Fatal irregularity-Civil Procedure Code, Section 461.

Defendants were public officers against whom plaintiff filed action before the expiration of one month after delivery of notice of institution of action. They were sued in respect of an act which was not shown to have been done mala fide.

Held, that a public officer is entitled to notice of action in terms of section 461 of the Civil Procedure Code if he is sued in respect of an act which he did bona fide, purporting to act in his official capacity. even though it is found that he had no reasonable cause for the belief on which he acted.

Obiter, per WIJEYEWARDENE C.J.-" I wish to place on record my opinion that Appu Singho v. Don Aron (1906) 9 N. L. R. 138 and Abaran Appu v. Banda (1913) 16 N. L. R. 49 have taken too restricted a view of the scope of section 461 when they laid down that the section did not apply to a public officer acting mala fide."

APPEAL from a judgment of the District Court, Colombo.

H. W. Jayewardene, with G. L. L. de Silva, for the plaintiff appellant
.
N. K. Choksy, K.C., with M. M. Kumarakulasingham, for the defendants respondents.

Cur. adv. vult.

October 31, 1949. WIJEYEWARDENE C.J.-

The first defendant in this case is a Superintendent of Police and the second defendant, a Sub-Inspector. The plaintiff sued the defendants for the recovery of Rs. 10,000 as damages sustained by him by reason of certain acts alleged to have been committed by the second defendant acting on the directions of the first defendant. The plaintiff pleaded that the defendants purported to act in their official capacity and that their acts were wrongful, unlawful and malicious.
In his evidence the plaintiff stated that he was residing in Colpetty and having his place of business in the Fort. He was "on friendly terms with American Officers". About November 1945, he came to know one Captain Harry Long of the American Transport Corps, Ratmalana, who described himself as the Secretary of the Officers' Mess there. The "Club" had been closed about January 1945, and' the ''equipment and property belonging to the Club" were sold to the public. He himself bought some articles of furniture from time to time and also a refrigerator which was "one of the last items" to be purchased by him. The refrigerator was a large one, its capacity being about 22 cubic feet. The plaintiffs own expert witness stated in Court that

in December 1945. " people who saw a need for it " would have paid Rs. 9,000 for it, and that it would have fetched about Rs. 6,000 in 1947, in spite of the damage alleged to have been done to it by the Police. Captain Long was, however, willing to sell this refrigerator to the plaintiff for Rs. 500 in December 1945, but desired that the payment should be made in cash. That payment was made at the plaintiff's place of business ,on December 14, 1945, and Captain Long, thereupon, typed '"a receipt" P 3 on the plaintiff's typewriter and gave it to him. The refrigerator was delivered to the plaintiff a few days afterwards. Almost immediately after, this transaction, Captain Long left the Island. The receipt P 3 reads as follows: -

A. T. C. Ratmalana,
14th December 1945.

This is to certify that I have sold one Ice Box to Mr. Sardha Ratnavira (plaintiff) of Pendennis Avenue, Colpetty.

(Sgd.) Harry S. Long,
American Transport Corps,
Ratmalana.

It will be noted that the receipt does not state what Captain Long received as purchase money for the sale of this large refrigerator referred to as an Ice Box in the receipt, and that it does not show

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