010-NLR-NLR-V-79-1-P.-M.-JOHN-SINGHO-Plaintiff-Appellant-and-THE-ATTORNEY-GENERAL-Defendant-Res.pdf
John Sinyho v. The Attorney General
85
197GPresent: Sirimane, J., Wanasundcra J., and
Colin Thome, J.
P. M. JOHN SINGBO. Plaintiff-Appellantand
THE ATTORNEY-GENERAL, Defendant-Respondent
S. C. 226/73—D, C. Polonnaruwa 806
Prescription—Whether State entitled to take plea of—Acknowledgementin writing of claim—When sufficient to defeat plea.
Held :
That the State is entitled to take advantage of the provisions
of the Prescription Ordinance.
That in the present case, the writing P19 relied on by the
plaintiff to take the case, outside the period of prescriptiondid not amount to an acknowledgement of the plaintiff’sclaim and could not therefore defeat the plea of prescrip-tion.
^^PPEAL from a judgment of the District Court of Polon-naruwa.
Daya Pelpola for the plaintiff-appellant.
A. S. Ratnapala, State Counsel, for the Attorney-General.
Cur.adv.vult.
86
WAN ASUNDER A. J.—John Singho v. The Attorney-General
April 5, 1976. Wanasundera. J.
The plaintiff-appellant sued the Attorney-General asrepresenting the State for the recovery of a sum of Rs. 6.767sustained by him as damages for breach of contract.
The plaintiff who was a cultivator averred in his plaint thatcn or about the 5th of October, 1964 he agreed with the Directorof Agriculture to have a paddy field belonging to him of anextent of 5i acres tractor-ploughed by the use of a Disc Plough,for which he paid the Government as consideration a sum ofRs. 165. He stated that despite repeated requests the State hadfailed and neglected to carry out its obligations on the contract.An extent of 11 acres of the field had however been ploughedbelatedly with a different type of plough, but even thff. plough-ing was of no use to the plaintiff as by then it was too late inthe season to prepare the field for cultivation.
The defendant in his answer denied the existence of acontract between the Parties and stated that the plaintiff hadmade an application to the Cultivation Officer, Hingurakgoda, toobtain the use of a tractor for ploughing the said field, for whichthe paintiff had deposited a sum of Rs. 165. Pursuant* to thisapplication an extentof 11acres was ploughed but,sincethe
rest of the field wasat that time water-logged, itwasnot
possible to plough more of the field. The defendant furtherstated that the Colonisation Officer had thereafter made availa-ble to the plaintiff the use of a tractor on several occasions, butthe plaintiff had not avalied himself of this offer. The substan-tial defence taken up by the defendant was one of prescription.The plaint had been filed in 1970 in respect of a transaction thathad taken place in October1964. The State allegedthatthe
claim was prescribedaftera period of three yearsfromthe
date of the cause of action. The learned District Judge, aftertrial, held in favour of the plaintiff on all issues, but upheldthe plea of prescription and dismissed the plaintiff’s action.
Counsel for the appellant sought to argue before us that theState cannot rely on prescription as a valid defence as there areno legal provisions either statutory or under the common lawrelating to prescription by or against the State. I am of the viewthat the State is entitled to take advantage of the previsions ofthe Prescription Ordinance even though it may not be bound byit, in the first instance. The State has, to my knowledge, takenup such pleas in appropriate cases in the past. Generally such aplea is taken up by the State only in such cases where, by reasonof the lapse of time, there is the non-availability of documentsand witnesses which may tend to hamper the prosecution of itscase, or where there are policy consideration for doing so.
WANASTTNX>ERA, J.—John Sing ho v. The Attorney-General
87
The only issue before us therefore is, whether the documentP 19 constitutes an acknowledgement sufficient to take the caseoutside the prescriptive period. The document P 19 was a replysent by the Director of Agriculture to the letter of demand P 18sent to him by the lawyers of the plaintiff. P18 had sjet out theentire cause of action on which the action was founded. Thematerial portion of P 19 is as follows : —
“ Reference your letter dated 9.8.69, Rs. 120 as refund for4 acres tractor ploughing could be paid to your clientMr. P. M. John Singho of Gal Amuna, Hingurakgoda. ”
It seems to me, upon a reading of P19, together with the corres-pondence, that P19 does not amount to an acknowledgement ofthe plaintiff’s claim. In P18 the sum of Rs. 765 claimed as damagesis made up of Rs. 6,600 as damages and Rs. 165 as the depositmade by the plaintiff to the Government. In P19 there is certain-ly an acknowledgement that the State is willing to refund a sumof Rs. .120 out of the amount, deposited by the plaintiff which,I am sure, the State is ready to pay even now. P19 does notappear to acknowledge the liability to pay a greater sum thanthis. It is in fact a repudiation of the cause of action averred bythe plaintiff. I am therefore of the view that P19 does not consti-tute an acknowledgement of the plaintiff’s claim to defeat theplea of prescription.
The evidence led in this case shows a lamentable lack of effi-ciency on the part of the officer or officers in charge of theAgricultural section at Hingurakgoda in their dealings with themembers of the public. The plaintiff has undoubtedly sufferedsome damage due to lapses on the part of State officials and itshould be prevented in the future as it may well disillusion thepublic and prevent them from availing themselves of the valuableservices offered by the State. It is, therefore, with regret thatI affirm the order of the learned District Judge and dismiss theappeal.
I would make no order for costs.
Sirimane, J.—I agree.
Colin Thome, J.—I agree.
Appeal dismissed.