1949 Present : Canekeratne, Nagalingam and Basnayake JJ.

YAR, Appellant, and ONDATJI, Respondent.

S. C. 324-D. C. Colombo, 16,136.

Defamation-Monty alleged to be borrowed from Afghan by Government servant- Complaint to Head of Department-Innuendo-Privileged occasion- Malice.

Defendant, an Afghan money lender, wrote a letter to the Principal Collector of Customs which contained the following paragraph " Mr. O (plaintiff) employed under you along with his brother borrowed from me a sum of 300 rupees. Although I have repeatedly asked for my money neither of the brothers would pay me a cent. "

Held, that the language reasonably implied a culpable refusal to pay money borrowed and was defamatory.

Held further, that the occasion was privileged but that there was malice which destroyed the privilege.

APPEAL from a judgment of the District Judge, Colombo. This case was referred to a Bench of three Judges, owing to a difference of opinion between the two Judges before whom it had been previously listed.

H. V. Perera, K.C., with V. S. A. Pullenayagam, for defendant appellant.-The legal issues relevant in this case are as follows :- (1) If the statements complained of in P1 are not defamatory or unless such statements are defamatory the plaintiff's action fails. (2) Assuming that such statements in P1 are defamatory the further question whether the occasion is privileged arises. (3) If the occasion is privileged the question of malice has to be considered. If the statements complained of are true in fact, no liability attaches to the defendant as the occasion is privileged, but if such statements are false malice will be presumed and the defendant will be liable even though the occasion is privileged. The crucial question to be decided in this case is whether or not the money due on the promissory note of June 11, 1938, had been paid before November 18, 1943, when P1 was written.

The words complained of are clearly not defamatory. The allegation that a person has borrowed Rs. 300 on a promissory note and has not repaid it for five years is not defamatory. See Sims v. Stretch 1[(1936) 2 A. E. R. 1237 at 1,241.]. It is the meaning of the words used that must be ascertained and the context in which words occur is relevant to find out the meaning. Conse­quences resulting from such words is different from the meaning of words: and the fact that words have certain consequences which affect a person adversely is not relevant in considering whether such words are defamatory of that person.

There can be no doubt that the occasion is privileged. The subject matter was one in which both parties, i.e., the defendant and the Collector

of Customs, were interested. Even though it is the fact that the defen­dant's motive was the recovery of his money the occasion still remains privileged. See Winstomley v. Bampton 1[L. R. (1943) 1 K. B. 319.].

The learned judge has failed completely to appreciate the documentary evidence in the case, particularly the endorsement on P1 by the plaintiff, and that the action brought by the defendant was dismissed without costs and the failure by the pl