D. A. Ariyaratne V. Barlis De Silva Wickramaratne.

1929

Present : Fisher C.J. and Maartensz A.J.

D. A. ARIYARATNE v. BARLIS DE SILVA WICKRAMARATNE.

164-2). C. Galle, 25,371.

Defamation-Statement made on privileged occasion-Evidence of express malice- Burden of proof.

Where a statement defamatory of the plaintiff was made by the defendant in answer to a question put by a superior officer to which he was bound to reply,-

Held, that the statement was made on a privileged occasion.

In such a case the burden is on the plaintiff to displace the privilege by proof of express malice.

APPEAL from a judgment of the District Judge of Galle.

H. V. Perera (with him Ameresekere), for defendant, appellant.

De Zoysa, K.C, (with him Rajapakse), for plaintiff, respondent.

October 15,1929. FISHER C.J.-

In this case the plaintiff sued the defendant, who is a Vidane Arachchi, for Rs. 3,000 as damages for defamation. The plaintiff was an applicant for the post of Attendance Officer and " on February 22, 1926, the Assistant Government Agent held an inquiry .... to select a suitable person from among the application for the above-mentioned post". Paragraph 4 of the plaint is as follows :-"The defendant at the above inquiry defamed the plaintiff by falsely and maliciously seating to the Assistant Government Agent that the plaintiff had been convicted and fined Rs. 50 and Rs. 25 in two criminal prosecutions". On February 24, 1927, the plaintiff gave notice of the action to defendant in accordance with section 461 of the Civil Procedure Code an it is not without significance that the plaint is dated February 20, 1928, that is to say, approximately two years after the alleged defamation. The evidence shows that the defendant was present at the meeting in his official capacity. The learned Judge in his judgment says that the defendant " who was present when questioned stated that the plaintiff had been convicted and fined twice, once Rs. 50 and the other time Rs. 25 ". The statement that the defendant was questioned is in accordance with the evidence .given by the defendant and the mudaliyar whom he called as a witness. It is clear that the occasion on which the statement was made was a privileged occasion and the onus therefore lay on the plaintiff to prove that the statement was made maliciously, that is to say, that the defendant availed himself of the privileged occasion for stating what he knew to be false, or had no reason to believe was true, in order to damage the plaintiff. Having regard to the circumstances, I think that the statement which admittedly was not true was defamatory. It would have been taken to indicate to the person to whom it was made that the character of the plaintiff was open to objection. It is clear, however, that the statement was not volunteered, but was made in answer to a question put by a superior officer to which the defendant was bound to reply. I gather from the judgment of the learned Judge that he did not take into account the fact that the occasion was a privileged occasion and therefore did not regard the case from the point of view that the onus of proving malice lay on the plaintiff. I do not think that the evidence given by the plaintiff himself on the point of express malice can be considered seriously. He says : " About two days prior to February 22, I met defendant and he spoke to me. He reminded me of, the wrongs my father had done to him and said that I would never succeed in my application ". I do not think this statement can be relied upon. Had such an occurrence taken place the natural thing to have happened was that the plaintiff who was in the presence of a number of people of whom he says " Almost everyone there knew me. They knew I bore a good character", would have at once told the Assistant Government Agent of what had taken place two days previously. He did not do this nor did he refer to it in a petition which he addressed to the Gov

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