092-NLR-NLR-V-69-S.-M.-WEERASOORIYA-ARACHCHI-and-another-Appellants-and-THE-SPECIAL-COMMIISSI.pdf
H. N. G. FERNANDO, C.J.—Wcerasooriya Arachchiv. SpecialCommissioner, Calls Municipality
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1967 Present: H. N. G. Fernando, C.J., and Siva Snpramanlam, J.S. M. WEERASOORIYA ARACHCHI and another, Appellants, andTHE SPECIAL COMMISSIONER, GALLE MUNICIPALITY,
Respondent
S. C. 435/64—D. C. Galle, 3110/M
Municipal Councils Ordinance—Scope of Section 307(2)—Limitation of action againsta Municipal Council—Requirement of specific issue—Electricity Act, s. 16.
An action in tort against a Municipal Council should not be dismissed onthe ground of non-compliance with section 307 (2) of the Municipal CouncilsOrdinance by reason of failure to institute the action within three months afteraccrual of the cause of action, unless there is a specific issue raising the questionwhether section 307 (2) has been observed.
Section 307 (2) of the Municipal Councils Ordinance is not applicable to acase where tho causo of action arose from an act which was done undor soction16 of the Electricity Act and which a Municipal Council has no power to performunder any of the provisions of the Municipal Councils Ordinance.
.A.PPEAL from a judgment of the District Court, Galle.
R. P. Goonetillelce, for the plaintiffs-appellants.
C. Ranganathan, Q.C., with P. Nagendran, for the defendant-respondent.
May 20, 1967. H. N. G. Fernando, C.J.—
In this case, in which the plaintiff sued the Municipal Council of Galleas the next friend of two minor children for damages suffered by thedeath of the mother of the two children through the negligence of theservants of the Council, the learned District Judge found in favour ofthe plaintiffs on all the issues except issue No. 14. That issue waswhether due notice of the action had been given in terms of Section 307of the Municipal Councils Ordinance.
The provision for giving due notice of action occurs in Sub-section 1 ofSection 307 and" the learned Judge held that the plaintiff had in factgiven notice which would comply with the provisions of that sub-section ;but he found against the plaintiff on the ground that the action was notcommenced within three months after accrual of the cause of action,and that therefore the plaintiff had failed to comply with the provisionsof Sub-section (2) of Section 307.
The main point relied on by plaintiffs’ Counsel in appeal is that therewas no issue raising the question whether Sub-section (2) of Section 307had been observed. The failure to frame the issue may not have beenimportant if it could have been decided purely as a question of law. Butit seems to us that the question whether the action taken by the Municipalauthorities which has given rise to this dispute was something doneunder the Municipal Councils Ordinance is one concerning which the
1"5255(7/87)
Weeraman v. Somaratna Them
4S8
plaintiff may have been in a position to lead some relevant evidence,if an issue had been raised. On that ground we would hold that thelearned trial judge was wrong in deciding against the plaintiff on anissue which was not specifically raised in the pleadings or at the timeof the framing of issues.
In additiou, it would appear prirna fade that the act which led to thedeath of the mother of the minors was one done under Section 16 of theElectricity Act, and one which a Municipal Council had no power toperform under any of the provisions of the Municipal Councils Ordinance.We are, therefore, inclined to the view that this action is not one againstthe Council for anything done under the provisions of the MunicipalCouncils Ordinance. On that ground Section 307 of that Ordinance wasnot applicable. We would allow the appeal and direct that decree beentered for the payment by the defendant of a sum of Rs. 6,000 to eachof the plaintiffs or Rs. 12,000 in all. The sum will be deposited in Courtto the credit of this action.
The decree will also provide for the payment to the plaintiff of theoosts of the action in both Courts.
Siva Supbamaniam, J.—I agree.
Appeal allowed.