Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice,
and Mr. Justice Wood Renton.

VAN CUYLENBERG v. CAPPER et al.

D. C., Colombo, 24, 477.

Defamation-Innuendo-Words libellous per se-Pleas of justification and fair comment-Particulars in support of the pleas-Interrogatories-Question of fact decided by Judge without a jury- Function of an Appellate Court-Roman-Dutch Law of defamation-English Law-Damages-Costs.

Held, that in an action for defamation where the words are libellous per se, no innuendo need be alleged or proved; where in such a case an innuendo is alleged, but the innuendo so alleged is " bad" in law, the plaintiff is entitled to rely on the defamatory meaning of the words themselves in support of his action. But where the words are not defamatory in themselves, and the plaintiff has attached to them a particular meaning by innuendoes, and fails to substantiate such innuendoes, his suit must fail.

Ramanathan v. Ferguson and another1 referred to and commented on.

Wood Renton J.-Where in an action for libel the defendant pleads both justification and fair comment, the plea of fair comment only arises when the plea of justification has failed; and the two pleas should be kept distinct in the mind of the Judge trying the case.

Dakhyl v. Labouchere2 and Hunt v. Star Newspaper Co. 3 referred to.

Wood Renton J.-A defendant pleading justification and fair comment in an action for libel must give or should be compelled to give particulars on which he means to rely to substantiate his pleas. Arnold and Butler v. Bottomley and others4 referred to. The function of an Appellate Court dealing with questions of fact decided by a Judge without a jury discussed.

THIS was an action for defamation. The plaintiff, who is a proctor of the Supreme Court and proprietor and editor-in-chief of a newspaper called the " Ceylon Independent, " claimed Rs. 20, 000 from the defendants, the owner and the editor of a newspaper called the " Times of Ceylon. " The libel complained of appeared in the " morning edition " of that paper of January 5, 1907, in an article entitled " From the Courts Verandah, " and signed by " Outdoor Proctor. " The words are fully set out in the judgments. The District Judge (J. Grenier, Esq. ) dismissed the plaintiff's action with costs.

1 (1884) 6 S. C. C. 89.                                                             3 (1908) 2 K. B. 309.

2 (1908) 2 K. B. 325 n.                                                            4 (1908) 2 K. B. 151.

The plaintiff appealed.

Bawa (with him E. W. Jayewardene), for the plaintiff, appellant.

Elliott (with him Hayley), for the defendants, respondents.

July 31, 1909. Hutchinson C. J.-

This is an action against the owner and editor of the " Times of Ceylon " for damages for a libel published in the " morning edition " of that paper on January 5, 1907. The District Court dismissed the action.

The judgment under appeal is that of a Judge who has had long and honourable service both as a District Judge and as an Acting Judge of this Court. It is a very able and perfectly fair and impartial judgment, and I cannot see in it the least indication of any unjudicial tone or temper. The petition of appeal in criticising the judgment uses language which is disrespectful to the Judge, and is wholly unjustifiable. I am surprised that it should have been signed by the plaintiff's proctor and three well-known advocates. I think we ought to direct the Registrar to expunge from it the last sentences of paragraphs 11 and 15 and the whole of paragraph 13. My brother Wood Renton agrees with me, and we so order accordingly.

Some of the learned Judge's conclusions as to the alleged libellous statements I either agree with or accept, but I am sorry to say that I cannot assent to all of them.

The first statement which I need specify is that which is headed " B " in the plaint. It says: " If I had bought a doubtful