Sri Lanka Law Reports
 2 Sri L.R
MERCY JAYASINGHE AND OTHERSCOURT OF APPEALAMARATUNGA, J.
A.L.A. NO. 318/03
C. MT. LAVINIA1526/97/LJUNE 12, 2004
Prescription Ordinance – Section 9 – action in tort – Within two years -Should the day on which the cause of action arose be excluded ? – Ifthe last date of prescriptive period falls on a public holiday, could theaction be filed on the next working day ? – Interpretation OrdinanceSection 8(1) – *From" – "Within" – Civil Procedure Code – Section 147.
The plaintiff-respondent claimed a certain sum of money as a result of a motorcar accident which occurred on 8.12.95 resulting in the death of the husbandof the plaintiff. The plaint is dated 5.12.97 and date stamp of the Registiy bearsthe date 8.12.97. Under section 9 action had to be filed within 2 years from thetime, when the cause of action arose.
Section 9 speak s of ‘within two years from the time when the cause ofaction shall have arisen.* It appears that the word "from’ means that thecomputation of two year period commences after excluding the day onwhich the cause of action accrued.
Hence when the day on which the cause of action arose is excluded theplaintiff has filed this action within two years from the date on which thecause of action arose.
If the last date of the prescriptive period is a public holiday, the plaintiffis entitled to file action on the next working day.
APPLICATION for leave to appeal from an order of the District Court of Mt.Lavinia.
CARaja Nanayakkara v Mercy Jayasinghe and others417
Case referred to:
1. Nirmala De Mel v Somawathie Seneviratne and others -1982-2 Sri LR569 at 572
Ranjan Suwandaratne for 2nd defendant-petitioner.
Rohan Sahabandu for plaintiff-respondent.
Cur. adv. vult.
June 24, 2004WIMALACHANDRA, J.
This is an application for leave to appeal against the order ofthe learned Additional District Judge of Mount Lavinia dated 7thAugust 2003.
The plaintiff-respondent (plaintiff) instituted the action bearingNo.1526/97/L against the 1st defendant-respondent (1stdefendant), 2nd defendant-petitioner (2nd defendant), and the 3rddefendant-respondent (3rd defendant) jointly and severally for ajudgement in a sum of Rs.1.5 million with interest.
The fact relevant to this application as set out in the petitionare briefly as follows:
The plaintiff claims the said sum of Rs.1.5 million from thedefendants as damages, as a result of a motor car accident whichoccurred on 8.12.1995 resulting in the death of the plaintiff’shusband Brindly Y. Jayasinghe. The 2nd and 3rd defendants werethe owners of the Vehicle No .A A 36-95-5 and the 1st defendantwas the driver. When the case was taken up for trial on 23.4.2003the plaintiff raised 12 issues and the 1st defendant raised issue 13and 14. The 2nd and 3rd defendants suggested issues 15 and 16.The Court accepted the issues. The 1st defendant moved Courtthat issues 13 and 14 be tried as preliminary issues in terms undersection 147 of the Civil Procedure Code. The Court allowed thisapplication and requested the parties to tender writtensubmissions. The issues 13 and 14 read as follows:
13. is the plaintiff’s action prescribed?
Sri Lanka Law Reports
 2 Sri L.R
14. if so can the plaintiff have and maintain this action?
The learned Additional District Judge after considering thewritten submissions and the documents filed by the partiesanswered the aforesaid issues in favour of the plaintiff. Admittedly,the cause of action arose on 8.12.1995, the day the 1st defendanthad driven the said vehicle and knocked down the husband of theplaintiff causing his death.
The 2nd defendant’s position is that the plaintiff has filed theaction on 8.12.1997.Hence the plaintiff’s action is prescribed.Although the plaint is dated 5.12.1997, the date stamp of the Courtregistry bears the date 8.12.1997.
This would be an action in tort to which section 9 of thePrescription Ordinance would apply.
Section 9 of the Prescription Ordinance states that no actionshall be maintainable for any loss, injury or damage, unless thesame shall be commenced within two years from the time when thecause of action shall have arisen. Accordingly, the action is barredafter two years from the death of the deceased.
It is to be observed that section 9 of the PrescriptionOrdinance speaks of “within two years from the time when thecause of action shall have arisen”. It appears that the word “from”means that the computation of the two year period commencesafter excluding the day on which the cause of action accrued.
In this connection I refer to the following observation made byWeeramantry in his book “The Law of Contracts” Volume II at page797.
“Section 5,6,7,9 and 10, (of the Prescription Ordinance) statethat actions on the cause of action they specify shall not bemaintainable unless commenced or brought within a statedperiod “from” the time laid, down for the commencement ofprescription. In relation to the use of the word 'from' asappearing in statutes, it is necessary to note the provisions ofthe Interpretation Ordinance that it shall be deemed sufficientto use the word 'from' for the purpose of excluding the first ina series of days or any period of time. This rule has beenjudicially applied in Ceylon in construing the word 'from' as
CABaja Nanayakkara v Mercy Jayasinghe and others419
appearing in the Prescription Ordinance thus excluding thefirst terminal and including the second. In England, there islittle authority on this question but in Marren v Dawson Bentley& Co. Ltd. it was held, contrary to the view prevailing till then,that the day on which the cause of action accrued is to beexcluded from the computation of the period.”
Hence, when the day on which the cause of action arose isexcluded, the plaintiff has filed this action within two years from thedate on which the cause of action arose. Therefore the plaintiff’saction is not prescribed.
The learned Judge, in her order has referred to section 8(1) ofthe Interpretation Ordinance and held that the plaintiff in any event,was entitled to file the action on 8.12.1997 as the 6th and 7th ofDecember 1997 happened to be Saturday and Sunday, which arepublic holidays. As the last date of the prescriptive periodaccording to the 2nd defendant 7.12.1997 being a Sunday and thecourt office was closed, the plaintiff could file action on the nextworking day, which is 8.12.1997. It is admitted that the plaintiff hasfiled this action on 8.12.1997.
As regard the computation of the period, Weeramantry in hisbook “ The Law of Contract” vol.ll at page 796 states as follows:
‘The Interpretation Ordinance provides by section 8(1) thatwhere a limited time from any date or from the happening ofany event is appointed or allowed by any written law for thedoing of any act or talking of any proceeding in any court, andthe last day of the limited time is a day on which the courtoffice is closed, then the act or proceeding shall be consideredas done or taken in due time if it is done or taken on the nextday thereafter on which the court of office is open. Thisprovisions is presumably capable of being invoked inextension of the period of limitation.”
If the last date of the prescriptive period happens to be apublic holiday and the Court office is closed, the plaintiff could fileaction on the next working day. It is within the meaning of section 9of the Prescription Ordinance read with section 8(1) of theInterpretation Ordinance. I find further support for this view in thecase of Nirmala De Mel v Seneviratne and others at 572, reads
Sri Lanka Law Reports
 2 Sri LR
“Where at any time after leave being granted by the Court
of Appeal to the Supreme Court the applicant dies before anappeal to the Supreme Court could be lodged, within theperiod stipulated by Rule 35. (of the Supreme Court rules of1978)
Counsel contended that according to Rule 35, the petition ofappeal should have been filed latest on 14th February 1981, whichfell on a Saturday, a day on which the office was closed. In thisconnection section 8(1) of the Interpretation Ordinance embodiesa relevant rule of interpretation. It states that:-
“Where a limited time from any date or from the happening ofany event is appointed or allowed by any written law for thedoing of any act or taking proceedings in a Court or office andthe last day of the limited time is a day on which the Court oroffice is dosed, then the act or proceedings shall be construedas done or taken in due time if it is done or taken on the nextday thereafter on which the Court or office is open”
On the application of this rule of interpretation it would appearthat the petition of Appeal filed on Monday the 16th February1981, which was the next working day was within time.”
In the circumstances it is my considered view that the order ofthe learned District Judge dated 7.8.2003 in respect of issues 13and 14 in answering the said issues in favour of the plaintiff iscorrect and valid in law.
For these reasons, there is no need for this Court to interferewith the order made by the Additional District Judge, Mount Laviniadated 7.8.2003 and therefore I refuse to grant leave to appeal.
AMARATUNGA, J. • I agree.
RAJA NANAYAKKARA v. MERCY JAYASINGHE AND OTHERS