1928 Present: Schneider and Lyall Grant JJ.

RATNAYAKE v. FONSEKA et al.

311-D. C. Colombo, 22,759.

Action for damages-Injury resulting from wrongful conviction-Fraud and conspiracy-Rejection of plaints-Civil Procedure Code, ss. 46 and 889.

An action to recover damages in respect of an injury resulting from a conviction for a criminal offence, alleged to have been obtained by fraud and collusion, cannot be maintained, while the conviction remains unreversed.

The Court is entitled to reject the plaint in such an action on the ground that it is barred by a positive rule of law even after service of summons.

THE plaintiff stated that the defendants caused a false charge of criminal breach of trust to be preferred against him and by fraud and collusion obtained his conviction, whereupon he was sentenced to undergo three years' imprisonment. By reason of the conviction the plaintiff was injured in his name and reputation and removed from the roll of practicing proctors and thereby suffered damage which he estimated at Rs. 30,000. He asked for a declaration that the said conviction was obtained by fraud and collusion and claimed recovery of the said damage. After summons had been served on the defendants, they moved, before filing answer that further proceedings in the action be stayed on the ground that the action was frivolous and vexatious and an abuse of the process of Court. The learned District Judge made order dismissing plaintiff's action.

H. V. Perera (with Deraniyagala), for plaintiff, appellant.-The learned District Judge has accepted the plaint and issued summons. It is too late at this stage to act under section 46 and reject the plaint. That would be going behind his own order. In any case one can only reject a plaint under section 46 when the action is barred by a positive rule of law. A " positive rule of law " is a law created by the legislature and embodied in the form of a statute. There is no statute forbidding such an action as this.

We do not allege that the finding in the criminal case was wrong, nor do we seek to bring the matter up for retrial in this guise. All we do is to allege a conspiracy to injure us which is actionable. The conviction may have been perfectly correct, and there may have been perfectly true evidence on which it was based, but at the same time there may have been a conspiracy to injure us, between

certain parties, as a result of which, besides the true evidence in the case on which the conviction is based, there may have been a mass of false and perjured evidence, which was intended to cause us to be punished more than we merited. A finding in our favour in this case, therefore, is not necessarily inconsistent with the correctness of the verdict in the criminal case.

It has been held in Ceylon that the correctness of the proceedings of a criminal case may be questioned in the course of a civil action Pedris v. Manufacturers Life Insurance Co., Lid.1

This is undoubtedly a healthy rule and tends to prevent the very great hardships that may result from false criminal charges in which conclusive proof of the innocence of the accused is only forthcoming after he has been convicted.

The law is by no means clear that the plaint discloses no cause of action, and in such a state of doubt it should have been accepted.

Hayley, K.C. (with Canakaratne), for defendant, respondent.- The plaint discloses no cause of action known to the Roman-Dutch law, and should have been rejected. The Roman-Dutch law is clear that such an action as this cannot be maintained (Voet XLVII. 10, 20). There will be no end to litigation if findings of judicial bodies can be questioned in this manner in separate suits.

Counsel cited Byrne v. Governor of Bank of England ct al.2

The Court was entitled to reject the plaint, although summons had been served.

When the Court omits to do what the Code Required it to do on the plaint being presented, it