PREMAWARDENA v. INDRAKUMAR

014-SLLR-SLLR-2000-V-1-PREMAWARDENA-v.-INDRAKUMAR.pdf


PREMAWARDENA
v.INDRAKUMAR
SUPREME COURTDHEERARATNE, J.,WADUGODAPITIYA. J. ANDGUNASEKARAJSC APPEAL NO 80/98COURT OF APPEAL NO 44/93 (F)DC COLOMBO NO 6908/RE6™ OCTOBER. 1999
Landlord and tenant – Section 22(2)(d) of the Rent Act – Nuisance as aground of ejectment – Mens rea or intention – Prescription of action
The landlord filed action in the District Court against the appellant (thetenant) in 1987 for ejectment from the premises in dispute No 137 1/1,an upstair flat occupied by the tenant. The ground of ejectment wassection 22(2)(d) of the Rent Act, namely, that the tenant was guilty ofconduct which was a nuisance to adjoining occupiers. Below thepremises No 137 1/1 was the ground floor fiat No 139 occupied byanother tenant who does not figure in this case. The adjoining groundfloor fiat No 137 was occupied by the landlord, his wife, daughter andson-in-law. Flat No 137 1/2 which was the upstairs of fiat 137 wasoccupied by the landlord's son . The four fiats were situated 30 feet fromthe road; and a common staircase running up the centre of the buildingprovided access to the upstair flats.
In 1975-1976 the tenant advertised in Lhe newspapers certain goods forsale giving his address as No 137, the landlord's residence or No. “137upstairs’’, landlord's son's residence. This resulted in considerableinconvenience and annoyance to Lhe landlord and his son by reason ofprospective buyers visiting their fiats. The tenant had also given Lhe samefiat numbers in letters written by him. Consequently letters addressed tothe tenant were delivered at the landlord's residence or that of his son;and the tenant found fault with the landlord for accepting such letters.In the 1987Telephone Directory the tenant had given his address as No137. He had also given numbers 137 or 137 1/2 to the Registrar of MotorVehicles for registration of several motor vehicles; and No 137 had beengiven to the Electricity Department as the tenant's address. The sameaddress had been given for the purposes of his pension. The tenant had
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in 1983 constructed an unauthorized water connection to his premiseswhich adversely affected the water supply to the landlord's son. He alsoused to dump used motor spares and old chairs on the common staircasecausing obstruction to the premises of the landlord's son. Despite awritten request by the landlord, the tenant continued with such conductparticularly causing much annoyance to the landlord from visitors andthe delivery of letters at the residences of the landlord and his son. Thisconduct was continued even after the institution of the action.
Held :
Taken as a whole the acts complained of constitute a nuisance ascontemplated by section 22(2)(d) of the Rent Act.
The word “guilty'' in section 22(2)(d) only means that the acts wereknowingly done. The tenant's intention in doing them is irrelevant.The lack of mens rea in the sense that the said acts were notintentionally done is not a defence.
The cause of action was not prescribed in that the plaintiff relied onthe whole course of conduct over a long period of time whichconstituted a nuisance at the time of filing the action, in 1987. lnanyevent, prescription was not pleaded by way of a defence although thedefendant raised other legal defences in the answer. As such thecourt would ignore the Prescription Ordinance.
Cases referred to :
Lakshman de Silva v. Vivekandan (1994) 3 Sri LR 335
Thamolheram PiUai v. Govindasamy 47 NLR 197
Mallika PiUai v. Ahamdu Marikkar 53 NLR 161
Perera and Sons Ltd. v. Pate 56 NLR 334
Brampy Appuhamy v. Gunasekera 50 NLR 253
Talwalle a Somasunderam (1997) 2 Sri LR 109: B.A.L.J. 1996 Vol.VI Part II Pg. 14
Silva v. Silva (1858) 2 Lor 28 (F. B.)
APPEAL from the judgment of the Court of Appeal.
E. D. Wickremanayake with Lalanth de Silva and Ravi Algama forappellant.
P. A. D. Samarasekera P.C. with T. B. DiUimuni and G. Jayakumar forsubstituted – respondent
Cur. adv. vull
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(Wadugodapitlya. J.)
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January 28, 2000Wadugodapitlya, J.
It would be useful to set the stage before getting on to thefacts of this case. The events which gave rise to the cause ofaction, and which will be narrated later, occurred in a twostoried building on Ananda Rajakaruna Mawatha, Colombo10, which was situated 30 feet from the road, and whichconsisted of four flats. The common staircase running up thecentre of the building divided it into two halves; each halfconsisting of two flats, one above the other. Thus, as one facedthe building, the left hand side of it consisted of a downstair flatbearing assessment No. 137, which was occupied by theoriginal Respondent (hereinafter referred to as the landlord),and an upstair flat immediately above it, bearing AssessmentNo. 137 1/2, occupied by the landlord’s son, who is the presentsubstituted Respondent. The right hand side of the buildingalso consisted of two similar flats, one above the other, with theground floor flat, bearing assessment No. 139, occupied by atenant who does not figure in this case, and the flat immedi-ately above it, bearing assessment No. 137 1/1. occupied bythe Appellant (hereinafter referred to as the tenant). What isimportant to note, is the juxtaposition of the landlord's flat(No. 137) and that of the tenant (No. 137 1/1). They were oneither side of the staircase, diagonal^ across each other, withthe landlord on the ground floor and the tenant on the upperfloor. The said flat, No. 137 was occupied by the landlord, hiswife, daughter and son-in-law.
The landlord, who had purchased this building from theMethodist Mission in 1965, instituted action in the DistrictCourt of Colombo, for the ejectment of the tenant, (who hadbeen a teacher at Wesley College, Colombo) from premises No.137 1 /1. on the ground that the tenant was guilty of conductamounting to a nuisance to the adjoining occupiers includingthe landlord, as set out in section 22(2)(d) of the Rent Act.He also asked for damages at Rs. 124/18 per month from
10. 87.
The Learned District Judge held in favour of the tenant,but on appeal, the Court of Appeal set that judgement aside,and held in favour of the landlord. Hence, this appeal.
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Section 22(2) (d) of the Rent Act No. 7 of 1972 whichapplies to the premises in question, (as its rent is over Rs. 100/
– per month), states as follows :
22(2)"Notwithstanding anything in any other law. no action
or proceeding for the ejectment of the tenant of –
any residential premises the standard rent (deter-mined under Section 4) of which for a month exceeds
one hundred rupeesshall be instituted in or
entertained by any Court, unless where – , . . .
(d) the tenant or any person residing or lodging with himor being his subtenant has. in the opinion of the court,been guilty of conduct which is a nuisance to adjoiningoccupiers …" (emphasis mine).
The tenancy is admitted, and there could be no questionthat the premises are so situated, that the landlord is an‘'adjoining occupier." As Megarry points out (The Rent Acts.11"’ Ed. p.405), the word “adjoining" is wider than “contigu-ous" and all that is required is that the premises of theadjoining occupiers should be near enough to be affected bythe tenant’s conduct. The relevant premises must be suffi-ciently close or related so that the behaviour or conduct of thetenant affects the occupation or enjoyment of the adjoiningoccupiers. Further, Megarry says that as an adjoining occu-pier, a landlord may claim on the footing of nuisance to himeven if he is the only person who has suffered.
Thus, what is left to be decided here is whether the actscomplained of amount to a nuisance within the ambit ofsection 22(2)(d) of the Rent Act. This is reflected in the keyissue raised by the landlord: “Did the Defendant (the tenant)by his conduct referred to in paragraph 5 of the plaint causea nuisance to the plaintiff (landlord) as well as to the adjoiningoccupiers?”. The Learned District Judge answered this issuein favour of the landlord, but held against him on othergrounds. (This will be referred to later).
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As may be expected, no attempt has been made in the RentAct, to actually define or set out the meaning of the word“nuisance”, and so, one must, in the first instance, discoverthe ordinary meaning of the word “nuisance.”
The 20"' Century Chambers Dictionary gives its meaningas “that which annoys or hurts, especially if there be somelegal remedy; that which is offensive to the senses; a person orthing that is troublesome or obstrusive in spme way.”
Then again, as Megarry rightly points out (ibid, p.404),
“the term “nuisance” must be construed in the normal
way, i.e., according to plain and sober and simple notionsamong the English people, and not as covering anythingmerely ‘fanciful' or a matter of mere delicacy or fastidiousness’…” Megariy adds that the word guilty’ (which also occurs in
our section 22(2)(d), “means no more than that the acts
were knowingly done; the tenant’s intention in doing them isirrelevant.”
Megany even goes so far as to say (ibid, p.406) that:
“Although the landlord must establish that there has beena nuisance to the adjoining occupiers, upon proof ofconduct capable of having this effect, the Court is entitledto infer that it had that effect, even if there is no positiveevidence that it did.”
Now. what are the specific acts of nuisance complained of?According to the landlord, they are as follows. It is noteworthythat none of them is denied by the tenant.
The tenant had, after his return from Zambia, startedadvertising a variety of house-hold items for sale in thenewspapers, giving his address as “No. 137” or that of hisson, “137 upstairs.” Some of the advertisements called fora response after 1.00 p.m. on Sundays. This resulted incallers arriving from about 9 O’clock in the morning andin the afternoons. They would park their cars opposite thelandlord's flat (No. 137) and press his bell, and when thelandlord inquired as to the reason for their visit, he wouldbe told that it was in response to the advertisements,which are then shown to him in proof. Unnecessary
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explanations and arguments have to be entered into, withthe callers insisting, and the landlord denying that he hadadvertised goods for sale.
The advertisements in question appeared in theObserver newspaper of 7. 12. 75. 29. 2. 76. 7. 3. 76.13. 6. 76. 20. 6. 76 and 10. 7. 76. (marked pi to p6)through which the tenant offered a variety of importedgoods (which were very scarce at that time), for sale. E.g.,a Sony radio, a cassette recorder, a camping tent, a PentakSpotmatic 35 mm. enlarger, a tripod, a Kenwood chefette,a waffle maker, a filter, a Necchi sewing machine, a floorpolisher and a Datsun motorcar, in respect of which therewere repeated advertisements.
The tenant admitted all these acts, and also, that hepersisted in giving a misleading address despite theobjections of the landlord. The tenant said he did not giveimportance to separate numbers!
The tenant had been giving as his address, either the flatnumber of the landlord (No. 137) or that of the landlord'sson ("137 upstairs”) in letters written by him, resulting inthe replies to those letters being delivered at the landlord'sflat. The landlord had then to collect them and hand themover to his tenant, and when he did so. the tenant wouldpick a quarrel with him.
The tenant had given, for insertion in the TelephoneDirectory for 1987 (P9 and P9(a)) his address as No. 137,which is the address of the landlord. There had been suchinstances before 1987 as well. This resulted in manypressing the landlord’s door-bell, who for convenience,had consulted the Telephone Directory for the tenant'saddress. This was admitted by the tenant.
The tenant had given the landlord’s address (No. 137) tothe Registrar of Motor Vehicles, for insertion in the Certifi-cates of Registration of the tenant's vehicles. E.g, P10 recar No. 4 Sri 7638, PI 1 re. car No. EY 6321 and P12 re.car No. 3 Sri 2674. In P13 (re. car No. 6 Sri 7731), thetenant had given the address of the landlord’s son, viz:. No.137 1/2. As a consequence, correspondence from the
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Registrar of Motor Vehicles came to be delivered at theresidences of both the landlord and his son. This was alsoadmitted by the tenant.
The tenant had also given his address as No. 137. to theElectricity Department for the purpose of his electricityconnection (P24).
The tenant, being a pensioner, had, in addition, given hisaddress as No. 137 for the purposes of his pension returns.
The tenant had in 1983, without the consent of thelandlord, and without the authority of either the WaterResources Board or the Colombo Municipal Council,constructed an unauthorised water connection from themain pipe-line to his flat No. 137 1/1. This resulted in areduction of the water supply to the flat occupied by thelandlord's son. Further, the landlord ran the risk of beingheld responsible for this unauthorised act done by thetenant. This was also admitted by the tenant.
The tenant had. from about 1982, dumped used motorcartyres and old chairs on the landing of the staircase leadingto the upstair flats in a space 5 ft by 5 ft. These werecovered with dust and obstructed the entrance to flat No.137 1/2 occupied by the landlord’s son. This too wasadmitted by the tenant.
Whilst on this point concerning the several acts of nui-sance, it is necessary to refer to two very important documents,P7 and P8. Document P7 is a letter dated 27. 10. 75 addressedto the wife of the landlord by the tenant, and reads as follows :
"Dear Mrs. Gnananathan,
Thank you for the seven letters you sent me now – 8.30a.m. It is a very serious matter for you to take over myletters and not deliver them while they were handed overto you last week.
Please make sure that you never accept any letter sentin the name of any of my household in future."
(emphasis by the tenant).
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Document P8 is in reply thereto, which was dated thesame day (27. 10. 75) and sent by the landlord to the tenant.
It reads as follows :
“Dear Mr. Premawardhana.
Thank you for your short note of 27. 10.75. It is not ourbusiness to take over your letters and deliver. The Post-man had left your letters referred to on the window lastSaturday. As a matter of courtesy the letters weire sentthrough your servant instead of returning them to thedead-letter office with the endorsement that there are nosuch persons by these names in premises No. 137,Ananda Rajakaruna Mawatha. I presume the mistake ison your part for not giving the correct number of the flatrented out to you, in your outgoing letters. In all yourletters, the number of the house is mentioned as 137.Ananda Rajakaruna Mawatha, where as the correct numberof the unit you occupied by you is 137 1 /1. I also wish topoint out that you had given the wrong number 137. in theTelephone Directory. Please make sure to remedy thiserror even at this stage without causing confusion to thePost-man and nuisance to others."
This correspondence, whilst being self-explanatory, isvery revealing. For one thing, it gives a clear picture of whatwas actually going on; revealing at the same time, the state ofthe tenant’s mind and the consequences of his acts upon thelandlord.
The vital question to my mind is. whether the tenantpersisted in his acts even after he received the landlord's replvP8 on 27. 10. 75.
It is not disputed that the tenant, even after receiving theletter P8, persisted in his course of action and continued to usethe landlord's address (137). For example, all the advertise-ments in the Observer newspaper (PI to P6) were, as set outabove, placed by the tenant after the letter P8 was sent to himon 27. 10. 75. The landlord's evidence was to the effect thatthe other acts complained of were also continued after the letterP8 was sent to the tenant. Furthermore, it is seen that the
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landlord’s evidence was to the effect that the acts complainedof. especially the use of the landlord’s address by the tenant,continued even after the institution of the present action by thelandlord in the District Court in 1987.
In my opinion, at the very lowest, the tenant ought to havedesisted after he received the letter P8 from the landlord. Notonly did he not desist, but he persisted in his several acts.
In fact. Learned President’s Counsel for the landlordrightly submitted that the acts complained of constituted apersistent course of conduct on the part of the tenant over along period of time, and were certainly, not mere isolatedincidents. That is to say, the nuisance was not this incidentor that, but a continuing course of conduct forming a whole.The specific acts mentioned were merely items constituting thecourse of conduct amounting to nuisance. In such a situationthe nuisance would arise out of the cumulative effect of theseveral acts that took place. This was recognised by G. P. S.de Silva, C. J.. in the case of Lakshman de Silua usViuekanandanm.
At the conclusion of the trial, although the LearnedDistrict Judge answered the issue on nuisance in favour of thelandlord, and held that action on the grounds that the saidacts were not intentionally done by the tenant, and also for thereason that no other occupier had complained of any nui-sance. The landlord thereupon appealed to the Court ofAppeal, which set aside the judgement of the Learned DistrictJudge and allowed the appeal, holding inter alia, "that theLearned District Judge erred and misdirected himself factu-ally in the evaluation of the evidence in regard to whether theacts complained of were a nuisance, and having erred in hisunderstanding of them, proceeded to err in law by misdirectinghis mind to relate it to contain a concept of mens rea orintention, as the word guilty’ is used in section 22(2)(d).’’
Learned Counsel for the tenant nevertheless submittedbefore us that even though all these acts are admitted, theywould not amount to a nuisance within the meaning of section2(2)(d) of the Rent Act. He submitted that the acts may amountto annoyance, but would not amount to nuisance. He further
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submitted, having referred to what Megarry had to say aboutwhat might normally constitute a nuisance (vide supra), thatthe test to be applied was an objective one, subject to thequalification that the standard to be applied was not that of the“Englishman on the Clapham omnibus", but that of the“common man at the Maradana junction." The question hesuggested, was whether the latter would be annoyed andtroubled by the acts enumerated above. The answer he said,was in the negative. He added that the acts complained of donot constitute a nuisance under the Rent Act. He said that thefour flats in question were originally owned by the MethodistMission and were occupied by teachers of Wesley College ofwhom the tenant was one, at which time the entire building(consisting of the four flats) had only one assessment number,viz No. 137, and that the Landlord had bought the buildingfrom the Methodist Mission in 1965 and that it was at that timethat the four separate assessment numbers were given. Theevidence shows that the Deed (P20) on which the property wasbought by the landlord sets out the four separate assessmentnumbers for the four flats. It also appears that the tenant wasan unsuccessful contender for the purchase.
Learned Counsel for the tenant also made reference toLearned President's Counsel's submission on behalf of thelandlord, that the acts complained of constit uted a persistentcourse of conduct on the part of the tenant and were notisolated incidents of nuisance, and replied that as far as thetenant was concerned, it was wrong to draw such a conclusion.He said that isolated incidents may well be examples ofcontinuing conduct, but to draw that conclusion, the incidentsmust be consistent, of the same nature or intensity andoccasioned under the same situation.
Learned Counsel for the tenant next submitted thatthough the acts complained of commenced in 1975 the actionwas brought 10 years later, and said that this should beconstrued as a waiver by the landlord of the nuisance, and thatit was wrong for the Court of Appeal to say that, inasmuch asthe tenant had not taken up the plea of prescription in hisanswer, he cannot be allowed to take up that plea thereafter.However, it is not disputed that in his answer, the tenant didnot in fact, take up the plea of condonation or waiver, nor didhe take up the plea of prescription.
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Premawardena v. Indrakiunar
(Wadugodai)idya. J.)
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Now, to take up the specific question on which SpecialLeave to Appeal was granted, viz, whether the acts complainedof amounted to a nuisance as contemplated by section 22(2)(d)of the Rent Act, I have to point out that, as set out above, theLearned District Judge was of the opinion that the acts didamount to a nuisance and he even answered the issue on thatquestion in favour of the landlord. Further, the Court ofAppeal itself was firmly of the same view. For my part, I mustsay that upon a consideration of all the facts and circum-stances of this case, I am in total agreement with this view that,taken as a whole, the acts complained of do constitute anuisance, as contemplated by section 22(2)(d) of the Rent Act.
If I may re-iterate, the operative words of that sectionare, “where …. the tenant. . . has. in the opinion of thecourt, been guilty of conduct which is a nuisance toadjoining occupiers . . . ."
Firstly, as I have set out earlier, Megarry points out thatthe word “guilty'' only means that the acts were knowinglydone; the tenant's intention in doing them being irrelevant.The Learned District Judge went wrong here, when he heldthat even through the acts amounted to a nuisance, the tenanthad to be absolved for the reason that he did not have thenecessary intention. This position was corrected by the Courtof Appeal; with which position I agree. I therefore hold that thetenant’s intention is not relevant. There can be no doubtwhatsoever that the acts were knowingly done by the tenant.
Secondly, I agree with Learned Counsel for the tenant thatthe burden is on the landlord to establish that there has beena nuisance to the adjoining occupiers. In this context, itappears that Section 22(2) (d) of the Rent Act demands that theconduct must amount to a nuisance “in the opinion of theCourt." It is my view that having regard to all the facts andcircumstances of this case, the landlord has in fact dischargedthat burden and that, in my opinion, the acts do amount to anuisance. I have already set out in detail the acts of nuisancecomplained of. I have also mentioned the fact that the tenant
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does not deny any of them. On the contrary. Learned Counselfor the tenant contends that though they may amount toannoyance they do not amount to a nuisance. He arrived atthis conclusion adopting as his standard, that of the "commonman at the Maradana junction", who he said would not evenbe troubled or annoyed by the acts complained of. 1 do notthink 1 can agree with this view, or with the other submissionsof Learned Counsel for the tenant as set out earlier. AsLearned President’s Counsel for the landlord submitted, and1 agree with him, the acts complained of taken as a whole,constitute a persistent course of conduct on the part of thetenant over a long period of time. They were certainly not mereisolated incidents; nor could they be "construed as coveringanything merely ’fanciful" or a matter of mere delicacy orfastidiousness’ . . . "
As Canekeratne J said in Thamotheram Pillai vsGovindasamyi2), “A tenant can be ejected from the premises letto him if he.causes a substantial interference with the enjoy-ment of the adjoining room by the landlord." This w'as aninstance where the tenant turned the premises let to him intoa workshop where he repaired radio sets at night.”
In Mallika Pillai vs Ahamadu Marikkar<3). the tenant wasejected because he permitted about 29 persons other thanmembers of his own household to use the only bathroom andlavatory on the premises, thereby causing a nuisance to thelandlord.
In Perera and Sons Ltd., vs Patd4] the tenant was ejectedfor allowing its workmen to urinate in. and pollute the drainson both sides of the road just outside the room which was usedas a rest room by the tenant Company’s workmen. This washeld to constitute a nuisance to a neighbouring occupier wholived opposite the premises. In this instance, repeated com-plaints fell on deaf ears. Sansoni J., went so far as to say, “Ido not think it was necessary that evidence should have beengiven by the Plaintiff herself, that she considered the conductcomplained of a nuisance. Upon proof of conduct capable ofhaving this effect, the Court is entitled to infer that it had that
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effect, even if there is no positive evidence that it did. The Courtis entitled to presume that the adjoining occupiers are reason-able people to whom the conduct in question would be anuisance.”
In Lakshman de Silva vs Vivekanandan (supra), theevidence disclosed that the Appellant had been in the habit ofparking cars and vans, thus obstructing access to the Re-spondent’s residence and keeping machinery which he movedabout and fitted as in a workshop. The evidence also showedthat the Appellant abused the Respondent; assaulted thelatter's brother-in-law who was an Attorney-in-Law; continu-ously harassed the landlord by pounding the ceiling and wallof the premises, breaking parts thereof: threw lighted crackerson the landlord's dogs, and generally used threatening andinsulting language on the landlord. G. P. S. de Silva, C. J., said"In a well considered judgement, the trial Judge has carefullyevaluated the evidence, both oral and documentary, andrightly reached the finding that the cumulative effect of theacts complained of constitutes a nuisance which would groundan action for ejectment. The evidence clearly establishes thatthe parking of cars and vans which obstruct access to thePlaintiffs residence and the abuse and intimidation directedat the Plaintiff are certainly not isolated incidents. This hastaken place during a period of about three months inevitablycausing considerable inconvenience and discomfort to thePlaintiff. I accordingly hold that the claim for ejectment fromthe premises is well founded."
For the reasons set out above, 1 myself have no difficultyin holding that the acts complained of did amount to anuisance as contemplated by Section 22(2)(d) of the Rent Act.
I now pass on to the other question of law on which SpecialLeave to Appeal was granted, viz., whether the Court of Appealerred in law when it held that the tenant could not have raisedthe plea of prescription when he had not specifically pleadedit as a defence in his answer.
Admittedly the answer did not set out the i lefence that thecause of action was prescribed in law, but Court allowed an
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issue on this plea to be raised. and for the first time this defencewas permitted at the trial after evidence commenced. TheLearned Judge of the Court of Appeal held that this situationshould not be permitted and cited the case of Brampy Appuliamyus Gunasekera™, where Basnayake C. J. held :
“Where the effect of the Prescription Ordinance is merelyto limit the time limit within which an action may brought,the Court will not take the statute into account unless itis expressly pleaded by way of defence."
The Learned Judge of the Court of Appeal also cited thejudgement of the Chief Justice G. P. S. de Silva in Talwatte usSomasunderamlfi), which held that a new contention involvinga question of mixed fact and law cannot be raised for the firsttime in appeal and that a party cannot be permitted to presentin appeal a case materially different from the case presentedbefore the trial Court. The Court held that in this connectionone should bear in mind the provisions of Explanation 2 toSection 150 of the Civil Procedure Code.
I would agree with the view taken by the Learned Judge ofthe Court of Appeal that a party cannot be permitted to presentbefore a trial Court a case materially different from the case setout in his pleadings.
Learned President's Counsel for the landlord submittedfurther, that in any event he would argue that the landlord wascertainly not relying on any single act to say it constituted anuisance. If he did so, then prescription might be said to runas from the date of the commission of that act. Contra, whathe relies on is the whole course of conduct over a long periodof time which constituted a nuisance at the time of filing actionin 1987, and continued even thereafter. He submitted thatbeing the case, no specific dates need be mentioned as insistedupon by Learned Counsel for the tenant. In any event asLearned President’s Counsel submitted, the dictum ofBasnayake C. J., in Brampy Appuhamy us Gunasekera (Supra)clearly indicated that where the effect of the PrescriptionOrdinance was only to limit the time within which an action
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may be brought, it must be expressly pleaded by way of adefence. Otherwise it will be ignored. See also, Silva vs Silva,7KIt may be noted that in the instant case, although the tenantraised other legal defences in his answer, he omitted to pleadprescription as a defence. Instead, he raised an issue basedon prescription only at the trial. I am therefore of the view thatthe Learned Judge of the Court of Appeal was not in error.Even if the plea of prescription was properly pleaded in theanswer, and an issue raised thereon at the proper stage, I amof the view that in the circumstance of this case, no trial Judgecould have answered that issue in the affirmative.
Therefore, for the reasons set out above, 1 dismiss theappeal. I enter judgement for the Substituted Plaintiff-Respondent in terms of the prayer to the plaint. The Substi-tuted Plaintiff-Respondent will be entitled to a sum ofRs. 10,000/- as costs.
DHEERARATNE, J. – 1 agree.
GUNASEKERA, J. – 1 agree.
Appeal dismissed.