079-NLR-NLR-V-37-SAMSUDEEN-BHAI-v.-GUNAWARDENE.pdf
AKBAR J.—Samsudeen Bhai v. Gunawardene.
367
2935Present: Akbar J. and Koch AJ.
SAMSUDEEN BHAI v. GUNAWARDENE.
191—D. C. (Inty.) Kandy, 41,215.
Public Servants’ Liabilities Ordinance—Action on a promissory note—Failureto claim, the benefit of the Ordinance—Execution proceedings when thedefendant had ceased to be a public servant—Liability—OrdinanceNo. 2 of 1899, ss. 3 and 4.
Where a public servant, who was sued on a promissory note, failed toplead the benefit of the Public Servants’ Liabilities Ordinance, he is notdebarred-from raising the plea in execution proceedings against him inthe same action, even though he has ceased to be a public servant atthat stage.
^^PPEAL 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 PublicServants’ Liabilities Ordinance, No. 2 gf 1899, which is a continuationof the problem which was decided in the case of Narayan Chetty v. Silva The facts arising in this case which are material to this appeal are asfollows :—The plaint was filed on May 27, 1931, by the plaintiff who isobviously an Afghan money-lender, claiming the sum of Rs. 994.50 on apromissory note dated August 9, 1930. Summons having been reportedserved on the defendant, a decree was obtained on July 3, 1931.Apparently, the plaintiff recovered a portion of his debt by the sale ofAe defendant’s property and finding that he could not get full satisfactionhe applied on May 8, 1934, for a notice to examine the defendant undersection 219 of the Civil Procedure Code. On May 31, 1934, the defendantfiled an affidavit in. person, pleading the benefit of the Public Servants’liabilities Ordinance, as he was a Government Servant. This affidavitwas rejected on the ground that it was not properly stamped, whereupon
l3S N. L. B. 210.
368
AKBAR J.—Samsudeen Bhai v. Gunawardene.
the correct stamp duty was supplied on June 6, 1934, on which date,however, the defendant had ceased to be a public servant. The qasewas finally inquired into on October 23, 1934. It was admitted on behalfof the plaintiff that the defendant was a public servant who was entitledto plead the benefit of the Ordinance, that the defendant was still apublic servant on May 31, 1934j when he filed his affidavit, and even onJune 5, 1934, when the deficiency in the stamp duty was forwarded tothe Court he was still a public servant. But he had ceased to be a publicservant on June 6, and, of course, on the date on which the inquiry washeld, October 23, 1934.
On the authorities cited to us, I have no doubt whatsoever with regardto 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 pro-ceedings, the plaint, &c., but even any process of any kind which issuesduring the course of the action. Section 3 states definitely that noaction shall be maintained against a public servant upon certain kindsof contract. All the facts are admitted by the plaintiff by which it isclear that the action as instituted on May 27, 1931, was in direct con-travention of the provisions of section 3. Section 4 of the Ordinancestates that all proceedings and documents in or incidental to an actionin contravention of the Ordinance shall be void. So that the wholeproceedings including the promissory note, which was annexed to theplaint, appear to be void under section 4, because the action at the timeit was instituted was in contravention of the provisions of the Ordinance.
Mr. Jayewardene, who appeared for the plaintiff-appellant, cited certaincases, and he argued that as the object of the Ordinance appeared to beto protect public servants from being worried by legal proceedings duringtheir tenure of service as such public servants, that object ceased to applyin this case to the public servant as he had ceased to be a public servant atthe time when he claimed the protection of the provisions of the Ordinance.It is, of course, highly dangerous to try to interpret an Ordinance accordingto the intention which the legislature is said to have had for the passingof the Ordinance, when the words of the sections of the Ordinance areclear and without any doubt. But it may be that the object of thelegislature was not merely what Mr. Jayewardene states it was but alsopossibly to warn off petty money-lenders from having any dealingswith public servants of the class mentioned in section 3. The cases hehas cited are the one that I have already referred to, namely, NarayanChetty v. Silva (supra) and Nagamuttu v. Kathiramen1 and Wijesinghe v.de Silva *. I can see nothing in any one of those judgments which seems tobe contrary to the interpretation I have put on the sections of the PublicServants’ Liabilities Ordinance. In fact, it seems to me, if I may sayso respectfully, that the judgments are quite correct on the special factsof those cases.
In my opinion, the judgment of the learned District Judge is correctand the appeal should be dismissed with costs.
Koch A.J.—I entirely agree.
Appeal dismissed.
– 2 A. C. R. 165.2 Z C. W. B. 151.