De Silva V. Ilangakoon

1956 Present : Basnayake, A.C.J., and Pulle, J.

DE SILVA, Appellant, and ILANGAKOON, Respondent

S. C. 147-D. C. Kurunegala, 7,355/M

Action against public officer-Notice of action-Procedure-Malice alleged in plaint-Is notice necessary then ?-Civil Procedure Code, s. 461.

In an action against a public officer in respect of an act purporting to be done by him in his official capacity, the requirements of section 461 of the Civil Procedure Code should be strictly observed and the notice which should be given to the defendant should be in the form prescribed in the Schedule to the Code. A letter of demand written to the defendant by the plaintiff's Proctor does not satisfy the requirements of section 461.

Where malice was alleged against the defendant in an action for defamation instituted against a public officer in respect of a statement purporting to be made by him in his official capacity -

Held, that the allegation of malice in the plaint did not exempt the plaintiff from his duty to give the defendant due notice of the action in conformity with the requirements of section 461 of the Civil Procedure Code.

APPEAL from a judgment of the District Court, Kurunegala.

H. V. Perera, Q.C., with E. A. G. de Silva and D. R. P. Goonetilleke, for Defendant-Appellant.

N. E. Weerasooria, Q.C., with G. T. Samarawickrema, for Plaintiff-Respondents.

Cur. adv. vult.

May 2, 1956. BASNAYAKE, C.J.-

The defendant-appellant (hereinafter referred to as the appellant) is the Headmaster of a Government School. He has been sued by the plaintiff-respondent, a minor, by his next friend, his father (hereinafter referred to as the respondent), in damages alleged to have been suffered by him in consequence of a defamatory statement made by the appellant in the School Leaving Certificate granted to the respondent. The alleged defamatory statement was made in a document which the appellant had to complete in his capacity as Principal of the School and hand over to the legal guardian of the respondent when the pupil left the School, and is as follows : " Conduct extemely bad."

The learned trial judge held against the appellant and entered judgment for the respondent in a sum of Rs. 5,000 with costs in that class.

The appellant submits that the respondent is not in law entitled to maintain the action as he has failed to comply with the terms of section 461 of the Civil Procedure Code, That section provides that no action

shall be instituted against a public officer in respect of any 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 such officer stating the cause of action and the name and place of abode of the person intending to institute the action and the relief which he claims. It also requires that the plaint in such an action must contain a statement that such notice has been delivered.

Learned counsel for the appellant contends that the requirements of that section are imperative.

Learned counsel for the respondent contends that the notice required by section 461 has been given and refers us to a letter by Perera & Perera, the respondent's Proctors, which is to the following effect:-

27th January 1951

              L. B. J. de Silva Esq.,

              Principal, Govt. School,

              Uhumiya.

Dear Sir,

We have been instructed by our Mr. I. M. P. B. Ilangakoon, Village Headman, Uhumiya, Palata, as Guardian of his minor son Ilangakoon to demand of you the immediate payment of the sum of Rs. 15,000 being damages occasioned by your false and malicious endorsement in the leaving certificate of the said Banda Ilangakoon dated 12th January 1951. Should you fail to comply with this demand on or before the 6th February 1951 we have further instructions to sue you at law to recover the said damages.

Sgd. Perera & Perera,

The Schedule to the Civil Procedure Code prescribes the

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