051-SLLR-SLLR-2005-V-1-GUNESEKERA-vs.-WICKREMASINGHE.pdf

The aforesaid issue was taken up as a preliminary issue to be answeredon the written submissions tendered by both parties. The learned DistrictJudge having considered the written submissions of parties by hisjudg-ment,dated 05.12.94 answered the aforsaid issues in the affirmative anddismissed the plaintiff appellant’s action. It is from the aforesaid judgmentthat the plaintiff- appellant has lodged this appeal.

Based on the aforesaid admissions one legal issue was raised by theconsel for the defendant- repondent which reads as follows:
CAGunasekera vs Wickremasinghe (Somawansa, J.)393
At the hearing of this appeal Mr. Gamini Marapana P. C. strenuouslycontended that the plaintiff appellant’s action is based on the contract ofsale as evidenced by the deed marked 'A' and it is that contract which theplaintiff-appellant is seeking to have set aside. The mere fact that section6 of the Prescription Ordinance does not refer to specific types of causes"of action but refers to the written document upon which the action isbased clearly makes the aforesaid section applicable to the facts of theinstant action. He also submitted that in any event, the relief sought bythe plaintiff – appellant in the instant action in facts relates to title inimmovable property and therefore section 2 of the Prescription Ordinancecould easily apply to the facts of the instant action and that there’s noway that section 10 of the Prescription Ordinance was applicable to thefacts of this case. In the circumstances he submits that the learnedDistrict Judge has clearly misdirected himself and erred in law when hecame to a finding that the section applicable was 10 and not 5 and 6 ofthe Prescription Ordinance as contended by counsel for the plaintiffappellant. In support of the aforesaid reasoning counsel has cited a numberof cases to which I would refer later'
It is common ground that the date of execution of the conditional transferdeed marked ‘A’ is 17.09.1987 and the date of institution of this action is14.06. 1993. viz 6 years of the execution of the aforesaid conditionaltransfer marked ’A’. It is common ground and is also admitted that theplaintiff – appellant’s cause of action is based on the principle ‘LeasioEnormis’. In the circumstances I am unable to agree with the counsel forplaintiff appellant that the plaintiff appellant’s action is based on a contractof sale as embodied in the document marked‘A’. Neither does the reliefsought by the plaintiff appellant relate to title of immovable property forthe relief prayed for in the prayer to the plaint is as follows:

394
Sri Lanka Law Reports
(2005) 1 Sri L. R.
As was held in Jackson vs. Spittal (1) “Every action is based on acause of action. The popular meaning of the expression is ‘cause of action'that a particular act on the part of the defendant which gives the plaintiffhis cause of complaint”.
Section 5 of the Civil Procedure Code defines cause of action as follows:
“Cause of action” is the wrong for the prevention or redress of whichan action may be brought, and includes the denial of a right, the refusalto fulfill an obligation, the neglect to perform a duty and the infliction ofan affirmative injury”.
In Pless Pol vs. Lady de Soysa at 320 per Lascelles, ACJ :
“An action is simply the right or power to enforce an obligation. Itsprings from the obligation which is simply the cause of action. Causeof action is the wrong or prevention or redress of which an action maybe brought and includes a denial of a rights, the refusal to fulfill anobligation, the neglect to perform a duty, the infliction and affirmativeinjury. The words "the wrong or prevention or redress which an actionmay be broughf'state generally what is connoted by the term "cause ofaction”. The remainder of the sentence enumerates some, notnecessarily all of the acts of the defendant which constitute cause ofaction."
Following the decisions of English and Indian Courts De Sampayo,ACJ in Lowe vs. Fernando(3) explained the term 'cause of action' in thefollowing words:
“The expression “cause of action” generally imports two things, viz, aright in the plaintiff and a violation of it by the defendant and cause ofaction means the whole cause of action i. e., all the facts which togetherconstitute the plaintiffs right to maintain the action, (Dicey’s Partiesto an Action Ch XI Sec. A) or.as it has been otherwise put, the mediaupon which the plaintiff asks the courts to arrive at a conclusion in his

qaGunasekera vs Wickremasinghe (Somawansa J.)395
favour (Lord Watson’s judgment in chand kour vs Partab Singh4 In
Abeydeera vs. Hami5 at 90 per Wood Renton, CJ:
"I adhere strongly to the view that I have expressed in a series of casesthat the term ‘cause of action’ as used in the Civil Procedure Code oughtnot to be construed as if it were identical with the transaction out of whichthe right to relief arises.”
In this respect I am inclined to follow the stringent view expressed byWood Renton, CJ. in the aforesaid decision in Abeydeera vs. Hami (supra).In the circumstances I am unable to agree with the counsel for the plaintiff- appellant that the plaintiff – appellant’s action is based on the contractof sale embodied in the document marked “A” The contract of sale is onlythe transaction and not the cause of action, for the plaintiff – appellanthimself, has admitted that the plaintiff – "appellant’s cause of action isbased on the ground of 'Laesio Enomnis’. In any event, as was observedin Hanifit vs. Nallamma once issues are framed the case which the Courthas to hear and determine becomes crystallized in the issues and thepleadings recede to the back ground. This is more so when an admissionis recorded by which the parties agree that the issue was on erecting to'Laesio Enormis’ only.' .
It is to be seen that "Laesio Enormis’ is not a matter that is specificallycovered by any of the sections contained in the Prescription Ordinance.Certainly neither Section 3.5 or 6 would be applicable to this concept.Sections 3 of the Prescription Ordinance deals with lands or immovableproperty. Section 5 deals with mortgage debt or bond and Section 6 dealswith partnership, deeds, written promise, contract, bargain, agreement,security, promissory notes, bills of exchange, etc. Thus it is to be seenthat the applicable Section would be Section 10 of the PrescriptionOrdinance which reads as follows:
No action shall be maintainable in respect of any cause of actionnot hereinbefore expressly provided for, or expressly exempted from theoperation of this “Ordinance, unless the same shall be commenced withinthree years from the time when such cause of action shall have accrued”.
396Sri Lanka Law Reports(2005) 1 Sri L. R.
In the circumstances, my considered view is that the learned DistrictJudge has come to a correct finding that the applicable Section in thePrescription Ordinance is Section 10.
Counsel for plaintiff appellant cited three decisions in support of hiscontention. They are Kirikitta Saranankara Thero vs. MedegamaDhammannanda Thero{7) Panditha Watugedera Amaraseeha Thero vs.Tittagalle Sasanatilaka Thero{S) and Mapalane Dhammadaja Thero vs.Rotumba Wimalajothi Thero!9>. The aforesaid decisions deal with exclusionagainst temple property and has no relevance to the facts of this action.Counsel also cited three other decisions which also can be distinguished.The decisions deal in Sinnamy Aiyer vs. Balampiki Ammam which relatesto an agreement for sale in writing where the period was 6 years. Appuhamyvs. Appuhamy"an action based on a mortagage bond wherein it was heldit was prescribed in 10 years and Lamaiena vs. Rahaman Doole12 whichrelated to the balance consideration in respect of a deed of sale not beenpaid.
For the aforesaid reasons, I see no basis to interfere with the judgmentof the learned District Judge. Accordingly the appeal will stand dismissedwith costs fixed at Rs. 5000/-
EKANAYAKE, J. — I agree.
Appeal dismissed.