Wijeratne, W.M.D.D.G. V. Gabriel, K.D.

1954 Present: Gratiaen J. and Fernando A.J.

W. M. D. D. G. WIJERATNE, Appellant, and K. D. GABRIEL,
Respondent

S. C. 451-D. C. Colombo, 19,487K
 

Delict-Actio legis Aquiliae-Computation of prescriptive period-Damage is gist of action-Prescription Ordinance (Cap. 55), s. 9.

In actions under the lex Aquilia and in other actions in which proof of patrimonial loss is a condition of liability, the period of prescription does not begin to run until some damage has actually occurred.

Plaintiff was the Headmaster, and the defendant an Assistant Master, of a school. Plaintiff alleged that defendant " falsely and maliciously in order to put the plaintiff into trouble and to cause him loss " falsified certain attendance registers of the school on June 15, 1944, and that in consequence of an investigation by his employers into these irregularities his services as Headmaster were discontinued on December 1, 1947. He claimed that a cause of action accrued to him for the recovery of Rs. 7,500 as damages from the defendant. Defendant pleaded that the action, which was instituted on May 28, 1948, was prescribed.

Held, that the date of commencement of the prescriptive period of two years under section 9 of the Prescription Ordinance was December 1, 1947, and not June 15, 1944.

APPEAL from a judgment of the District Court, Colombo.

N. E. Weerasooria, Q .C., with C. G. Weeramantry, for the plaintiff appellant.

H. W. Jayewardene, with D. R. P. Goonetilleke, for the defendant respondent.

Cur. adv. vult.

May 26, 1954. GRATIAEN J.-

This is an appeal against a judgment upholding, on a preliminary issue of law, a plea that an action for damages instituted on 28th May, 1948, was prescribed. The defendant had raised a further preliminary issue as to whether the averments in the plaint disclosed a cause of action against him, but this plea was eventually withdrawn.

Section 9 of the Prescription Ordinance admittedly governs the case, so that the action could not be maintained unless it was instituted "within two years from the time the cause of action shall have arisen ". The dispute is as to when precisely (assuming the averments in the plaint

to be true) the plaintiff's cause of action first accrued to him. In the

absence of any allegation of concealed fraud, the period of limitation begins to run " from the earliest time at which an action could be brought " -Beeves v. Butcher 1[(189l)2Q,B,509 at 511].

We must first analyse the averments in the plaint (after discounting its unnecessary and irrelevant flourishes) so as to ascertain the true nature of the cause of action on which the plaintiff based his claim. It is alleged :

(1) that the plaintiff had at all relevant dates been the Headmaster, and the defendant an assistant master, of St. Lucia's Bilingual School in Kotahena (paragraphs 2 and 3) ;

(2) that the defendant " falsely and maliciously in order to put the plaintiff into trouble and to cause him loss " falsified certain attendance registers of the school on 15th June, 1944 (paragraphs 5 and 7) ;

(3) that in consequence of an investigation by the plaintiff's employers into these irregularities his services as Headmaster were discontinued on 1st December, 1947 (paragraph 6), and he suffered consequential loss and damage which he assessed in a sum of Rs. 7,500 (paragraph 8) ;

(4) that a cause of action had accrued to the plaintiff to sue the defendant for the recovery of such damages (paragraph 8).

The question for our decision is whether, if these averments be true, the cause of action originally arose on 15th June, 1944 (as the learned judge has held) or whether it only became complete on 1st December, 1947, when the plaintiff lost his professional employment as Headmaster as a direct consequence of the irregularities maliciously committed by the defendant on the earlier date. If the latter view be correct, the plea of prescription admittedly

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