1946 Present : Canekeratne and Dias JJ.

RAMIAH, Appellant, and RAYNER, Respondent.

19-D.C. Hatton, 3,140.

Tort-Wrongful search of house- Claim for damages-Circumstances when proof of malice is not necessary.

Where the defendant had complained to the police, on quite inadequate information, charging the plaintiff with theft, and the police, without making further inquiry, searched the house of the plaintiff for the articles alleged to have been stolen-

Held, that it was not necessary to prove malice in the defendant to entitle the plaintiff to recover damages for the unjustified search.

APPEAL from a judgment of the Dirstrict Judge of Hatton.

N. E. Weerasooria, K.C. (with him Walter Jayewardene and V. Joseph ) for the plaintiff, appellant.

C. E. S. Perera (with him S. R. Wijayatilake ), for the defendant respondent.

cur. adv. vult

November 21, 1946. DIAS J.-

The plaintiff says that the defendant on March 4, 1944, made a false complaint of theft of three copper cauldrons against him to the Maskeliya Police which led to the search of the house where he was residing He claimed a sum of Rs 1,000,00 as damages. No stolen property was discovered at the search. One of the missing cauldrons was subsequently found in a ravine on the estate, but there is nothing to suggest that the plaintiff hid it there. No charge has been made in any Court against the plaintiff and we must proceed on the assumption that he is innocent of the charge of theft.

The defendant is the Superintendent of Alton estate belonging to the Ceylon Tea Plantations, Limited. The plaintiff was originally the clerk tea-maker and lattely the tea-maker on the estate. The defendant took charge of the estate as superintendent in November, 1943. Shortly after taking charge the defendant thought the plaintiff had too many assistants and he discontinued two men from the factory. It is obvious from the evidence that the defendant formed an unfavourable opinion of the plaintiff's work. He found that the plaintiff allowed the dhoby washing to be dried on the withering loft. He also was of opinion that the plaintiff took too long an interval for his meals. A state of friction, therefore, arose, and I believe the plaintiff when he says that the situation made it impossible for him to carry on his duties under the defendant.

His story about the manner in which the defendant is alleged to have abused him is, I think, exaggerated. Equally, the defendant's version appears to be an under-statement. The situation, however, was an impossible one, and the plaintiff gave notice and left the estate with his belongings on March 1, 1944. I cannot believe that the defendant, finding him stranded on the road, endeavoured to assist him, negatives such a suggestion.

On March 4, 1944, that is to say three days after the plaintiff left, the defendant sent a telephone message to the Maskeliya Police which was recorded in the telephone register, P2, as follows:-

"On Wednesday 1 st the tea-maker the left here from Alton to Eildon Hall estate, Lindula. He has taken the three rice boiling pots without my knowledge, and I want to get them back as the value is about Rs.200.00-made of copper. The name of the tea-maker is Therumiah."

A police officer proceeded to Alton estate on the same day and recorded the statement of the defendant-P3. In the course of the statement the defendant said :-

"When I took charge of this estate in November last . . . . .. I saw three copper boiling pots in use daily to feed the children These pots were last used on January 5, 1944, for mass anchy treatment. At the . . . . time the tea-maker left the estate he did not give these to the estate. I learnt that these are estate property . . . . . I did not come across any entry ( i.e., in the inventory )

with regard to the pots . . . . I presume these pots are not entered deliberately in order to steal them. I learnt that these pots were removed by