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BRAMPY APPUHAMY v. GUNASEKERE
NLR50V253
1948 Present: Dias and Basnayake JJ.
BRAMPY APPUHAMY, Appellant, and GUNASEKERE,
Respondent
S. C. 389-D.
C. Kalutara, 24,223
Prescription-Not
pleaded in answer-Limitation of action-Court cannot consider Statute.
Where the effect of the Prescription Ordinance is merely to limit
the time within which an action may be brought, the Court will not take the
statute into account unless it is expressly pleaded by way of defence.
APPEAL from a
judgment of the District Judge, Kalutara.
G. Thiagalingam, for the plaintiff
appellant.
S. W. Jayasuriya, with Kingsley
Herat, for the defendant respondent.
Cur. adv. vult.
April 20, 1948.
Basnayake J.-
The plaintiff-appellant (hereinafter referred to as the
plaintiff) seeks to recover from the defendant-respondent (hereinafter referred
to as. the defendant) a sum of Rs. 439.65 being the value of timber supplied by
him to the defendant on September 3, 1943. The defendant disputes the
plaintiff's claim and alleges in paragraph 3 of his answer that the timber in
question was delivered to him about March, 1939, and denies that any sum
whatsoever is due to the plaintiff. The defendant further alleges that between
July 22, 1938, and July 24, 1939, he made advances of money and sold goods on credit
to the plaintiff to the value of Rs. 274.93 on the latter agreeing and
undertaking to supply him with sawn timber, at rates agreed on, for the value
of Rs. 200 and to pay the balance in cash. He further alleges in paragraph 6 (c)
of his answer that after paying the sum of Rs. 74.93 the plaintiff in July,
1939, delivered to him sawn timber to the value of Rs. 200 which he deposited
in a mud hole on the land adjoining a land called " Samplewatta "
from which the timber was extracted by the plaintiff who had in 1938, secured a
contract from the Government to clear it. The defendant says that when, in
August, 1943, he attempted to take away the timber so deposited the plaintiff
refused to let him remove the entire quantity but permitted him to take only a
part of it to the value of Rs. 105.93 in respect of which the plaintiff has
brought this action. He therefore claims from the plaintiff a sum of Rs. 94.07
being the balance due to him after deducting the sum of Rs. 105.93 from the sum
of Rs. 200. He also offers to return the timber supplied by the plaintiff on
his paying him the sum of Rs. 200. The plaintiff denies that there is a debt of
Rs. 200 due to the defendant and says he is willing to take back the timber.
The case went to trial on the following issues:
What were the rates at which the plaintiff agreed to supply
the timber in question to the defendant?
When did the plaintiff supply the timber in question?
What is the value of the timber actually received by the defendant?
What value did the defendant supply goods and make advances to the plaintiff
for?
What sum is due to the defendant on his claim in reconvention?
The learned District Judge has held that the plaintiff agreed to supply timber
to the defendant at the rate of 18 cents a cubit for beams and
8 cents a cubit
for rafters. He also holds that the sale was in
