ALWIS AND OTHERS

Vs.

MALWATTEVALLEY PLANTATIONS LTD AND ANOTHER

SUPREME COURT
ALUWIHARE, J.
DEHIDENIYA, J.
THURAIRAJA, J.
SC/HCCA/LA/47/2016
WP/HCCA/COU38/2010/F
DC COLOMBO 39717/MR
FEBRUARY 28, 2019

Action for malicious prosecution-Dismissal of plaintiff's action-Death of plaintiff while leave to appeal application pending before the Supreme Court-Survival of cause of action-Litis contestatio

The original plaintiff filed action against the respondents in the District Court for malicious prosecution. After trial, the District Court dismissed the plaintiff's action and the High Court of Civil Appeal affirmed it. Whilst the leave to appeal application filed before the Supreme Court was pending, the plaintiff died. The respondents objected to the substitution of the petitioners in the place of the deceased on the basis that the cause of action cannot survive after the death of the plaintiff.

Held:

1. An action for malicious prosecution is based on actio injuriarum in Roman Dutch Law and is an action in personam. The rule of the common law that personal actions do not survive the death of the person whom it is attached to (actio persona/is moritur cum persona) is inapplicable if the action has reached the stage of litis contestatio prior to the death, which is considered to take place at the moment when pleadings are closed.

2. The conclusion of the pleadings that should be considered in the present case for the purpose of ascertaining whether litis contestatio has been reached would be the pleadings that were concluded in the District Court, since an appeal is not an independent action severable from the original action. There is no necessity that the deceased plaintiff should have had a previous judgment in his favour.

Cases referred to:

1. Malalage v. Weerakoon, Inspector of Police, Anuradhapura Police Station (SC/FR/278/2008, SC Minutes of 25.10.2013)
2. Atapattu v. People's Bank [1997] 1 Sri LR 208 at 218,219
3. Muheeth v. Nadarajapiflai 19 NLR 461 at 462
4. Stella Perera and others v. Margaret Silva [2002] 1 Sri LR 169
5. Ariyaratne v. Ariyaratne (SC/APPEAL/28/2013, SC Minutes of 14.01.2016)
6. Gillespie v. Toplis 1951 (1) SA 290 at 293
7. Associated Newspapers of Ceylon v. Felicia Kariyakarawana [2006] 2 Sri LR 361
8. John Fernando and Attorney General v. Satarasinghe [2002] 2 Sri LR 113
9. Milne v. Shield Insurance Co Ltd 1969 (3) SA (AD) 352 at 358-359
10. Banda et al v. Cader 16 NLR 79
11. Ariyadasa v. Weerasinghe, (Western) Provincial Housing Commissioner
12. Sudharman De Silva v. Attorney General (1986] 1 Sri LR 9 at 13

APPEAL from the Judgment of the High Court of Civil Appeal of Colombo.

Suren De Silva for the Plaintiff-Appellant-Petitioner.

Palitha Kumarasinghe, P.C., with Asanka Ranawake for the 1st Defendant-Respondent.

Kushan De Alwis, P.C., with Prasanna de Silva and Hiran Jayasuriya for the 2nd Defendant-Respondent-Respondent.

cur. adv. vult.

June 21, 2019

ALUWIHARE, J.

This Order pertains to the issue as to whether the cause of action for malicious prosecution, following the death of the Plaintiff abates or whether it is permissible for the Plaintiff's heirs to be substituted in his room and place.

The Plaintiff-Appellant-Petitioner (hereinafter referredto as the 'Plaintiff'), filed action against the 1st and 2nd Defendant-Respondent-Respondent-Respondents (hereinafter referred to as the 'Respondents') seeking damages for pain of mind, loss of reputation and harassment caused by

malicious prosecution, before the District Court. The case was dismissed by the learned Additional District Judge by his Judgment dated 25th January 2010.

Being aggrieved by the said decision the Plaintiff filed an appeal in the High Court of Civil Appeal. The said appeal to the High Court was also dismissed. Thereafter, seeking to set aside the said Judgment, the Plaintiff filed the present Leave to Appeal Application in the Supreme Court.

On