IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA Andra Hannadige Sarathchandra, No. 56, Horakandamulla Road, Matugama.

Plaintiff SC APPEAL NO: SC/APPEAL/63/2023 SC LA NO: SC/HCCA/LA/160/2021 HCCA NO: WP/HCCA/KAL/113/2016(F)

DC MATUGAMA NO: 1703/MR Vs.

1. Ceylon Electricity Board, Sri Chittampalam A. Gardiner Mawatha, Colombo 02.

2. Wijesuriya Gunawardena Mahawaduge Teeman Perera

3. Wanigatungage Tudor

4. Lalith Silva

5. Mahanama Abeywickrama All of Ceylon Electricity Board, Sri Chittampalam A. Gardnier Mawatha, Colombo 02.

6. Galhandi Deepal Wanigaratne Regional Electrical Engineer, Ceylon Electricity Board, Kalutara District Office, Kalutara North.

Defendants AND BETWEEN

1. Ceylon Electricity Board, Sri Chittampalam A. Gardiner Mawatha, Colombo 02.

2. Wijesuriya Gunawardena Mahawaduge Teeman Perera

3. Wanigatungage Tudor

4. Lalith Silva

5. Mahanama Abeywickrama All of Ceylon Electricity Board, Sri Chittampalam A. Gardnier Mawatha, Colombo 02.

6. Galhandi Deepal Wanigaratne Regional Electrical Engineer, Ceylon Electricity Board, Kalutara District Office, Kalutara North.

Defendant-Appellants Vs.

Andra Hannadige Sarathchandra, No. 56, Horakandamulla Road, Matugama.

Plaintiff-Respondent AND NOW BETWEEN Andra Hannadige Sarathchandra, No. 56, Horakandamulla Road, Matugama.

Plaintiff-Respondent-Appellant Vs.

1. Ceylon Electricity Board, Sri Chittampalam A. Gardiner Mawatha, Colombo 02.

2. Wijesuriya Gunawardena Mahawaduge Teeman Perera

3. Wanigatungage Tudor

4. Lalith Silva

5. Mahanama Abeywickrama All of Ceylon Electricity Board, Sri Chittampalam A. Gardnier Mawatha, Colombo 02.

6. Galhandi Deepal Wanigaratne Regional Electrical Engineer, Ceylon Electricity Board, Kalutara District Office, Kalutara North.

Defendant-Appellant-Respondents Before: Hon. Justice P. Padman Surasena Hon. Justice Mahinda Samayawardhena Hon. Justice K. Priyantha Fernando Counsel: Ashiq Hassim with Madushani Jayasinghe for the Plaintiff-

Respondent-Appellant.

Sumathi Dharmawardena, P.C. and A.S.G. with Sabrina Ahmed, S.C. for the Defendant-Appellant-Respondents.

Argued on: 17.10.2023 Written Submissions:

By the Plaintiff-Respondent-Appellant on 07.12.2023 By the Defendant-Appellant-Respondents on 13.10.2023 and 28.12.2023 Decided on: 03.04.2024 Samayawardhena, J.

Background This is an action for malicious prosecution based on actio injuriarum. The plaintiff was charged in the Magistrate’s Court under the Electricity Act for theft of electricity by tampering with electric meters of his business premises. After trial, he was acquitted. Thereafter he filed action in the District Court seeking damages against six defendants. The 1st defendant is the Ceylon Electricity Board and the 2nd-6th defendants are its employees. The 2nd defendant led the team that raided the premises, with the 3rd to 5th defendants accompanying him to assist. The 6th defendant engineer has not participated in the raid but has estimated the probable loss to the Electricity Board.

After trial, the District Court entered judgment for the plaintiff. On appeal, the High Court of Civil Appeal reversed it. Hence this appeal by the plaintiff to this Court.

The 2nd and 6th defendants have died when the trial was in progress in the District Court (journal entry No. 53 dated 25.09.2013) but the trial has proceeded as usual without considering whether substitution is necessary and whether cause of action survives against the other defendants. There is no reference in the judgment of the District Court about the death of the 2nd and 6th defendants. The District Judge entered judgment against all the defendants.

When the matter was supported for leave before this Court on 30.03.2023, as evidenced by the proceedings of that date, learned Additional Solicitor General for the defendant-respondents raised a preliminary objection to the maintainability of the appeal based on the death of the 2nd and 6th defendants pending trial and proceeding with the trial without taking any steps in that regard. Learned counsel for