Samayawardhena, J.

I have had the advantage of reading the draft judgment of my learned brother, Justice Gooneratne. However, I regret that I am unable to agree with it.

The plaintiff instituted this action against the defendant in the District Court of Kantale seeking to recover a sum of Rs. 200,000 together with legal interest from the date of demand, as prayed for in the plaint. According to the plaint, the said sum was lent to the defendant on 27.08.2007 upon an oral agreement that it be repaid within six months, and the defendant issued cheque marked P1 as security for repayment. The defendant, in my view, filed a convoluted answer, seeking dismissal of the plaintiff’s action together with a cross-claim of Rs. 10 million as damages for alleged malicious prosecution, mental agony, loss of reputation etc.

The defendant’s case was that it was not the plaintiff, but he, who had lent a sum of Rs. 200,000 to the plaintiff by cheque P1. However, it is significant to note that the defendant did not make a cross-claim to recover that sum, although he sought to recover Rs. 10 million under various other heads, which are unsustainable in law. This in itself demonstrates how improbable the defendant’s story is.

The defendant did not plead in his answer that the plaintiff’s cause of action was prescribed in terms of section 7 of the Prescription Ordinance, nor did he raise any issue on prescription at the trial. This was probably because a party cannot take two contradictory positions at the trial, and approbate and reprobate the same transaction simultaneously. To put the matter in context, the defendant’s position was not that the plaintiff’s cause of action was prescribed, but rather that no cause of action accrued to the plaintiff at all, as the plaintiff never lent money to the defendant. Judges of original courts should not permit the framing of issues founded on inconsistent positions. A party to an action must elect one of the two alternatives, but not both.

As Sharvananda C.J. stated in the oft-cited case of Ranasinghe v. Premadharma [1985] 1 Sri LR 63 at 70, “The rationale of the above principle appears to be that a defendant cannot approbate and reprobate. In cases where the doctrine of approbation and reprobation applies, the person concerned has a choice of two rights, either of which he is at liberty to adopt, but not both. Where the doctrine does apply, if the person to whom the choice belongs irrevocably and with full knowledge accepts the one he cannot afterwards assert the other; he cannot affirm and disaffirm. Hence a defendant who denies tenancy cannot consistently claim the benefit of the tenancy which the Rent Act provides.”

In Sudarshani v. Somawathi (SC/APPEAL/173/2011, SC Minutes of 06.04.2017), Prasanna Jayawardena J. stated that “where a plaintiff who has executed a deed transferring a land to a defendant, prays for a declaration that the defendant holds the land in Trust for the benefit of the plaintiff, that plaintiff cannot, at the same time, also ask for a declaration that the same deed is null and void on the ground of laesio enormis.” These are two inconsistent positions.

I went through the evidence of both the plaintiff and the defendant, who were the only witnesses at the trial. In my view, the defendant did not cross- examine the plaintiff on the basis that the cause of action based on the money lent was prescribed, nor did he give evidence on that basis. The issues 22 and 23, raised by the defendant based on the averments in paragraph 8 of his answer, do not relate to prescription (කාලාවර ෝධය) but to laches (අයුතු ප්‍රමාදය). Prescription and laches are two distinct legal concepts.

Issues 22 and 23 read as follows:

(22) පැමිණිලිකරු විසින් 2007.08.27 වන දිනැති රෙක් පතක් සම්බන්ධරයන් වූ රමම පැමිණිල්ල සිදු ක න ලද්රද් 2012.10.11 වන දින පමණක්ද?

(23) ඉහත කී විසඳනාවට පිළිතු ‘ඔව්’ වන්රන් නම් පැමිණිලිකරුරේ අයුතු ප්‍රමාදය මතම පැමිණිල්ල නිෂ්ප්‍ප්‍රභා විය යුතු වන්රන්ද? 11.10.2012 is the date of the plaint.

There was no oth