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♦Present: Pereira J; and Ennis J.
SOYSA v. SOYSA.
227—D. G. Kalutara, 5,229.
Claim prescribed on the face of plaint—Action dismissed without con-sideration of averments in the answer.
If on the footing of the averments in a plaint the claim madetherein is clearly prescribed, the claim is liable to be dismissedwithout evidence being gone into or consideration of the avermentsin the answer.
jfjpHE faefcs appear from the judgment.
A. St. V. Jayewardene, for plaintiff; appellant.
H. J. G. Pereira, for defendant, respondent.
Curm adv. vult.
'September 11, 1913. Pereira J.— '
In this ease the question is whether the plaintiff’s claim is pre-scribed. For the purposes of this question we have, in my opinion,to consider the elaim as set forth in the plaint. It has been sug-gested that there is some obscurity in the plaint, and that evidenceshould have been gone into before the question as to prescriptionwas decided, and further, that the averments in the answer shouldfoave been considered. I can see no obscurity in the plaint, and thepolicy of our procedure appears to be to look at- the question as towhether a claim is prescribed in the light of only the avermentsmade by the plaintiff. Section 46 of the Givi! Procedure Code
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enacts that when a plaint is presented, if the action appears “ fromthe statement in the plaint ” to be barred by any positive rule of law,the Court should reject the plaint, go that in this case the Courtshould, strictly speaking, have decided the question of prescriptionat the very commencement of the aotion, and this Court has heldthat when a Court omits to do what the Code requires it to* do on aplaint being presented, it might do it at any time when .the omissionis brought to its notice (see JHead v. Samsudeen ’); that is to say, itmight act on the material that it had before it when the thing should,according to the Code, have been done. Now, paragraphs 6 and 7of the plaint make it quite clear that the whole of the plaintiff's-claim relates to transactions in connection with' Talagala estate.In the first paragraph of the plaint the plaintiff says that thedefendant was his agent and attorney until the year 1908, but hegives no definite time for the commencement of the agency. He-puts it as having been “ about the year 1891. ” He then says that“ during the said period ” he collected certain rents and profits.In the second paragraph i.t is stated that “ during the said period ”the defendant having been the owner of Talagala estate purchaseda portion of land adjoining the estate with moneys belonging to theplaintiff and lying in the defendant’s hands “ in manner aforesaid- ”No definite time is mentioned as the date of this purchase. It isgiven as "in or about the year 1890, ” but it is manifest from theexpressions “ during the said period ” and " in manner aforesaid ”that the purchase was made during the period when the defendantwas the plaintiff’s attorney and agent. In this connection the factthat there is a distinct and special averment, forming a paragraphby itself, to the effect that the defendant ceased to be the plaintiff’sattorney in the year 1908 is significant. Now,, the plaintiff claims(1) an account of the rents and profits of the estate, and (2) that thedefendant be directed to convey to the plaintiff a half share of theestate. Clearly, the cause of action for an account accrued at orbefore the termination of the agency. As to the claim for a con-veyance of a half share of the estate it is glaringly untenable. It isbased on an invalid agreement ; but assuming that the £ greementis valid, its meaning is that the defendant should convey to theplaintiff what he had bought out of moneys belonging to the plain-tiff and as the plaintiff’s attorney. The plaintiff’s right to claimthis conveyance also accrued at the termination of the agency, if
before. I cannot follow the argument, the effect of which, as
observed by the District Judge, would be to enable the plaintiff
to bring his action, say, fifty years hence,judgment appealed from with costs.
I would affirm the
I am of the same opinion, and would make the same order.
1IN. L. S. 292, 295.
SOYSA v. SOYSA