Attorney General V. Arumugam

1963 Present: Sansoni, J., and L. B. de Silva, J.

THE ATTORNEY-GENERAL, Appellant, and S. S. ARUMUGAM,

Respondent

S. C. 649/60-D. C Trincomalee, 6131

Action against Crown-Notice of action given to Attorney-General by plaintiff-Validity of it in a second action instituted in respect of same cause of action-Civil Procedure Code, s. 461.

   Contract-Money paid under a mistake of law-Such payments are not recoverable- Condictio indebiti-Set-off.

         (i) Where the Attorney-General is representing the Crown is sued in respect of an act purporting to be done by him in his official capacity, the notice of action given to him by the plaintiff as required by section 461 of the Civil Procedure Code does not cease to be effective if the action happens to be withdrawn on the ground that it has been instituted in a Court which has no jurisdiction and is subsequently instituted in the proper Court without any further notice of action under section 461.

         (ii) Where certain overpayments made by the defendant to the plaintiff under a mistake of law in the interpretation of the terms of a contract providing for payment for work done were sought by the defendant to be set off against sums which subsequently fell due to the plaintiff-

    Held, that money paid under a mistake of law cannot be recovered.

APPEAL from a judgment of the District Court, Trincomalee.

                       Mervyn Fernando, Grown Counsel, for the Defendant-Appellant.

                      C. Ranganathan, with S. Rajaratnam, for the Plaintiff-Respondent.

Cur. adv. vult.

June 7, 1963. L. B. DE SILVA, J.-

    The plaintiff-respondent was a contractor under the Irrigation Department in the Allai Extension Scheme under the contract P4. This contract provided for monthly payments for work done. The plaintiff was paid for all work done for the period December, 1952 to May, 1953. He has filed this action claiming a balance sum of Rs. 18,243 o 69 on account of work done during the period June 1953 to September 1953. The learned District Judge gave him judgment in a sum of Rs. 15,989 and costs. The defendant Las appealed from this judgment.

      The plaintiff originally filed action on. this claim in the District Court of Colombo. He gave notice of action as required by section 461 of the Civil Procedure Code. PI is the notice by the plaintiff, Pla dated 12th February 1959 is his proctor's letter to the defendant forwarding P1 and a draft (P1b) of the proposed action to be filed in the District Court of Colombo. The Colombo action was subsequently withdrawn as objection was taken to the jurisdiction of the Court to hear that action. The present action was filed by the plaintiff without giving the defendant any further notice of action under section 461.

   Learned Crown Counsel urged in this appeal that this action must be dismissed for failure to comply with section 461 of the Civil Procedure Code. After hearing Counsel on this preliminary point, we decided to hear the appeal on its merits. The section does not specifically state that before every action filed on the same cause of action, a separate notice should be given. The purpose of the notice is apparently to give the Attorney-General an opportunity to consider the claim and settle it outside Court if he considers it desirable to do so.

      This section requires the notice to state only the cause of action, the name and place of abode of the person intending to file the action and the relief he claims. There are no local cases in which this question has been considered. But this question was considered in an Indian Case of Vallabram Purshottam v. Secretary of State 1,[  1 A. I. R. 1935 (Bombay) 21.] under similar provisions of the Indian Civil Procedure Code. Justice Broomfield held in that case at page 23," it would amount to an extremely technical and unwarranted construction of section 80 to hold that the notice

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