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SUPPRAMANIA CHETTY et al. v. THE FISCAL WESTERN PROVINCE
NLR19V129
1916. Present: Ennis J.
and Schneider A.J.
SUPPRAMANIA CHETTY et al. v. THE FISCAL,
WESTERN PROVINCE.
266-D. C. Colombo, 42,104.
Action against Fiscal for
negligence-Loss of goods seized under writ- Burden of proof-Prescription-When
does cause of action arise*- Civil Procedure Code, s. 362.
Under writ issued in execution of plaintiff's decree for Rs. 3,357.90 the
defendant as Fiscal seized and took into his custody goods valued at Rs.
3,456.51, and placed guards outside the shop. On September 28, 1914, the
Fiscal's officer discovered that some goods, valued at Rs. 1,560.75, were
stolen. Plaintiff knew of the theft on September 30. The remainder of the goods
were sold on October 7 and realized Rs. 1,715.55.
Plaintiff instituted this action on July 2, 1915, for damages, alleging that the
loss of goods was attributable to the fraud or gross negligence or gross want of
ordinary diligence on the part of the guards appointed by the Fiscal.
Held, that the action was barred under section 362 of the Civil Procedure Code,
as it was brought nine months after the cause of action had arisen.
Prescription generally runs in cases of tort from the date of the tort, and not
from the occurrence of the damage. But there is an exception to this where the
original act itself was no wrong, and only becomes so by reason of subsequent
damage.
In actions for negligence the mere fact that injury has been caused is not
enough to throw on the defendant the burden of proof as to negligence, although
in certain circumstances the burden may be shifted, e.g., where a barrel was let
fall from a window on the plaintiff as he was walking on the street.
THE
facts are set out in the judgment of
Schneider A.J.
Bawa, K. C. (with him Ratnam), for the plaintiffs, appellants.-The law imposes a
duty on the Fiscal to produce on the date of sale the goods seized by him and
given to his custody (Civil Procedure Code, section" 227). Plaintiff's cause of
action did not arise on the Fiscal's failure to keep the goods safe, but on the
loss arising as the result of his negligence, i.e., on October 7, 1914, when the
proceeds of sale failed to satisfy plaintiff's decree (Ram. 1877, p. 338). The
private right of the plaintiff infringed is the right to have the goods which
were seized sold on the day appointed for the sale and the proceeds applied in
satisfaction of his decree.
No action is maintainable against
the Fiscal unless pecuniary loss is suffered (L. R. 7 Q. B. 175). The Fiscal is
in the same position as an English sheriff (Ram. 1877, p. 344; D. C. Colombo,
69,938). The goods having been lost in the custody of the Fiscal, the burden of
rebutting negligence is on the Fiscal (32 L. J. Ex. 13). The facts prove gross
negligence.
F. J. de Saram, for the defendant, respondent.-Section 362 of the Civil
Procedure Code requires the plaintiff to prove affirmatively gross negligence (3
Bal. 73). Gross negligence imports more than the want of ordinary care (Beven
269; 6 E. & B. 8911). It must amount to something approaching fraud (Beven 421.)
The plaintiff has failed to prove even want of ordinary care. The plaintiff's
cause of action arose at the date of the actual breach of duty or negligence,
an3 not from the date of the discovery of the negligence (5 B. & C. 2591).
Plaintiff knew of the loss on September 30. Even if the cause of action arose on
that date, the action is barred. The breach of duty occurred when the goods were
stolen. [Schneider A.J. referred to 8 S . C. C. 153.] Counsel referred to Wendt
32.
Bawa, K.C., in reply, referred to 2 Browne 196.
Cur. adv. vult.
August 3, 1916. ENNIS J.-
This suit was instituted on July 2, 1915, against the Fiscal of the Western
Province for damages, for an amount since reduced to Rs. 1,560.75, in that
certain goods seized by the Fiscal at the instance of the plaintiffs were stolen
while in the custody of the Fiscal
