DR. DE ZYLVA & OTHERS v. DR. RANJAN FERNANDO

017-SLLR-SLLR-2002-V-2-DR.-DE-ZYLVA-OTHERS-v.-DR.-RANJAN-FERNANDO.pdf


108
Sri Lanka Law Reports
120021 2 Sri LR.
DR. DE ZYLVA & OTHERS
v.DR. RANJAN FERNANDO
COURT OF APPEALUDALAGAMA, J., ANDNANAYAKKARA, J.
CALA NO. 212/2001DC COLOMBO NO. 23349/MRAUGUST 24, 2001
Defamation – Are issues limited to pleadings? – Cause of action not disclosedin pleadings – Raised through issues – Prejudice – Malicious Prosecution – CivilProcedure Code s. 146, and s. 65 (d).
Plaintiff-respondents sued the defendant-petitioners on an alleged basis of a falsestatement the defendant-respondent purported to have made and published withthe intention of causing loss and damage to the plaintiffs standing in society.The plaintiff-respondents objected to certain issues raised by the defendant-petitioner which objection was upheld by the District Court. The District Court wasof the view that the Court could not grant to the petitioner an opportunity to raisea cause of action not disclosed, due to prejudice caused thereby to the plaintiff.
On leave being sought –
Held:
It is not necessary to limit the issues to pleadings.
It is apparent from the contention and the answer in particular to the claimin reconvention by which they counter claim for quantified damagesfrom the plaintiff on the basis, as stated therein of malicious prosecution.Malicious prosecution alleged is the very action of the plaintiff which isyet to be concluded.
All particulars of avoiding liability or as in the instant case particulars ofliability of the plaintiff for adjudication of the claim in reconvention and forthe Judge to ascertain for himself the proposition of fact or of law uponwhich the parties are at variance is clearly not setout as required bys. 65 (d).
CA Dr. De Zyiva & Others v. Dr. Ranjan Fernando (Udaiagama, J.) 109
Hence, Court has to decide on the conduct of plaintiff as to whether suchconduct was false, malicious or with intention to injure. These are mattersto be decided after the evidence is concluded.
APPLICATION for leave to appeal.
Mariam Umma v. The Oriental Govt. Security & Life Insurance Co., Ltd. -37 NLR 145.
Abeysekara v. Livera – 71 NLR 465.
Cooray v. Fernando – 42 NLR 329.
Pure Beverages Ltd v. Shamil Fernando – 1997 – 3 SLR 202.
Avindra Rodrigo with M. Marzook for petitioners.
Wijedasa Rajapaksha, PC with Kapiia Liyanagamage tor respondent.
Cur. adv. vult.
September 07, 2001UDALAGAMA, J.
The facts briefly in the instant case appear to be as follows: The i
plaintiff-respondent who was the President of the Wildlife and theNature Protection Society sued the 1st to 3rd defendants on an allegedbasis of a false and defamatory report purported to have been madeand published with the intention of causing loss and damage to theplaintiff's standing in the society as morefully described in paragraphs30, 31 and 32 of the plaint.
On 24. 04. 2001 when this case was taken up for trial before thelearned District Judge and admissions and issues were recorded.Counsel for the plaintiff-respondent objected to issues 27 to 32 raised ’oon behalf of the 1st defendant, issues 49 to 54 raised on behalf ofthe 2nd defendant and issues 71 to 76 raised on behalf of the 2nddefendant and issues 71 to 76 raised on behalf of the 3rd defendant.
110
Sri Lanka Law Reports
[2002] 2 Sri LR.
Issues 27, 49 and 71 appear to be the basic issues in dispute.
In fact, issue 27 which reads as follows: “Is the plaintiffs action filedagainst the 1st defendant false and malicious with an intention to causeinjury to the 1st defendant" is similar to issues 49 and 71. Issue 27is raised by the 1st defendant and issues 49 and 71 by the 2nddefendant and the 3rd defendant, respectively.
Perusing the submissions of the petitioner it is observed that the 20learned Counsel has dealt with this application to set aside theimpugned order refusing to accept the issues under two headings,namely, (1) should the issue be limited to pleadings, and (2) doesthe claim in reconvention disclose a cause of action.
It is apparent from the learned District Judge’s order that he hadcategorically come to a finding that “it is not necessary to limit theissues to pleadings”. In view of that definite finding, I see no reasonto pursue dwelling on the relevant submissions as made by learnedCounsel for the petitioner on that matter.
As for the second, it is also the finding of the learned District Judge 30that the Court could not grant to the petitioners an opportunity to raisea cause of action not disclosed in the pleadings through the issuesdue to the prejudice caused thereby to the plaintiff.
It is apparent to this Court from the contention and the answerof the 1st to 3rd defendants in particular to the claim in reconventionby which they counter claim for quantified damages from the plaintiffon the basis, as stated therein, of malicious prosecution. Furthermore,the malicious prosecution alleged is in the very action of the plaintiff,the subject-matter of DC Colombo case No. 23349/MR, which is yet
40
to be concluded.
The details of computation of the damages so quantified are notset out as envisaged by the provisions of section 65 (d) of the CivilProcedure Code. I would agree with the view expressed by Me Karron,
CA Dr. De Zylva & Others v. Dr. Ranjan Fernando (Udalagama, J.)111
in his treatise on "The principles of liability for civil wrongs in the lawof South Africa", which is also relevant to Sri Lanka that "no one shallbe allowed to allege on a still pending suit that it is unjust. This canonly be decided by a judicial determination or other final event of thesuit in the regular course of it. Consequently, no action will lie forthe malicious institution of proceedings unless the proceedings areterminated.50
A similar view appears to have been taken i'n V. Mittars "Lawsof Defamation and Malicious Prosecution" revised by K. Shamukaham,10th edition of 1966, page 333.
In Mariam Umma v. The Oriental Govt. Security and Life InsuranceCo., Ltdat 149, Gratiaen, J. held, inter alia, that: "section 146imposes a special duty on the Judge himself to eliminate the elementof surprise which will arise when the precise nature of the disputeis not clarified before the evidence is recorded”.
All particulars for avoiding liability or as in the instant case, particulars
of liability of the plaintiff for adjudication of the claim in reconvention 60
and for the Judge to ascertain for himself the propositions of facts
or of law upon which the parties are at variance is clearly not set
out as required by section 65 (d) of the Civil Procedure Code as
referred to above. The decision in Mariam Umma {supra) was cited
(2)
with approval by Alles, J. in Abeysekera v. Livera.
It is also clear from the order of the learned District Judge thatsevere prejudice could be caused to the plaintiff if the said issuesare accepted. I am of the view that this finding stands to reason asstated above, in that the particulars necessary to meet the issues areclearly lacking.70
Counsel for the petitioner has cited Cooray v. Fernando in supportof his contention that the issues raised by the petitioners need to beaccepted. However, the facts of this case refers to the false prosecutionfor maintenance in another action.
112
Sri Lanka Law Reports
[2002] 2 Sri LR.
Learned Counsel also refers to Bullen and Leake on the subjectof Abuse of Civil Proceedings. The issues in this case are differentfrom the subject of the Abuse of Civil Proceedings. Here the Judgehas to decide on the conduct of the plaintiff as to whether suchconduct was false, malicious or with the intention to injure. Theseare matters to be decided after the evidence is concluded.80
I will also in view of the submissions made by the learnedCounsel for the petitioners refer with approval to the judgment byGunawardana, J. in Pure Beverages Ltd. v. Shamil Fernando whereinHis Lordship, inter alia, held: "the question as to how or in what mannerissues have to be dealt with or tried is primarily a matter best leftto the discretion of the trial Judge and the Court exercising theappellate or revisionary jurisdiction ought to be slow to interferewith this discretion except in a case where it is patent or obviousthat the discretion had been exercised not according to reason,but according to caprice".90
I am unable to find any lack of reasoning or that the learned DistrictJudge's order was made with no obvious causes.
For the reasons stated above, leave to appeal from the order ofthe learned District Judge dated 30. 05. 2001 is refused with costsfixed at Rs. 10,000.
NANAYAKKARA, J. – I agree.
Application dismissed.