“action” is a proceeding for the prevention or redress of a wrong;
“Attorney-General” includes the Solicitor-General, the Additional Solicitor-General and any State Counsel specially authorized by the Attorney-General to represent the Attorney-General;
“cause of action” is the wrong for the prevention or redress of which an action may be brought, and includes the denial of a right, the refusal to fulfil an obligation, the neglect to perform a duty, and the infliction of an affirmative injury;
“civil court” means a court in which civil actions may be brought;
"counsel” means an attorney- at - law, instructed by a registered attorney;
“court” means a Judge empowered by law to act judicially alone, or a body of Judges empowered by law to act judicially as a body, when such Judge or body of Judges is acting judicially;
“court expert” shall mean a person specially skilled or knowledgeable in any subject, field or disciplines”;
“decree” means the formal expression of an adjudication upon any right claimed or defence set up in a civil court, when such adjudication, so far as regards the court expressing it, decides the action or appeal; (An order rejecting a plaint is a decree within this definition);
“Fiscal” includes a Deputy Fiscal;
“foreign court” means a court situate beyond the limits of, and not having authority in Sri Lanka;
“foreign judgement” means the judgement of a foreign court;
“Judge” means the presiding officer of a court and includes Judges of the Supreme Court, Judges of the Court of Appeal, High Court Judges, District Judges, Judges of the Primary Courts and Magistrates;
“judgment” means the statement given by the Judge of the grounds of a decree or order;
“judgment-creditor” and “decree-holder” mean any person in whose favour a decree or order capable of execution has been made, and include any transferee of such decree or order;
“judgement-debtor” means any person against whom a decree or order capable of execution has been made;
“legal document” includes all processes, pleadings, petitions, affidavits, notices, motions and other documents, proceedings, and written communications;
“local authority” means any Municipal Council, Urban Council or Pradeshiya Sabha and includes any authority created and established by or under any law to exercise, perform and discharge powers and duties and functions corresponding to or similar to the power, duties and functions exercised, performed and discharged by any such Council or Sabha;
“order” means the formal expression of any decision of a civil court which is not a decree;
“original court” includes District Courts and Primary Courts;
“provincial council” shall mean a Provincial Council established under Article 154A of the Constitution of the Democratic Socialist Republic of Sri Lanka 1978;
“public corporation” means any corporation, board or other body which was or is established by or under any written law other than the Companies Act, No. 7 of 2007, with funds or capital wholly or partly provided by the Government by way of grant, loan or otherwise;
“public officer” shall have the same meaning as defined in the National Archives Law No. 48 of 1973;
“Public Trustee” means the Public Trustee of Sri Lanka appointed under the Public Trustee Ordinance and includes a Deputy Public Trustee or any other state officer generally or specially authorized by the Public Trustee to act on his behalf;
“recognized agent” includes the persons designated under that name in section 25 and no others;
“registered attorney” means an attorney-at-law appointed under Chapter V by a party or his recognized agent to act on his behalf;
“Registrar” in relation to a court includes an Additional, Deputy or Assistant Registrar;
“signed” includes “marked” when the person making the mark is unable to write;
“the Island” and “this Island” means respectively the Island of Sri Lanka;
“written” and “writing” include “printed” and “print” and “lithographed” and “lithograph” respectively.
Two actions were filed in the District Court against St. Thomas’ College Board of Governors and the Warden of STC seeking a declaration in each that the purported appointment of the 17th defendant (Eksith Fernando) as warden was irregular on the ground that 17th defendant, although a graduate, has absolutely no teaching experience as required by regulations made by the Minister under the Education Ordinance which was applicable to the STC. The rules provided that only a graduate with at least 10 years teaching experience was eligible to be appointed as the Principal of any school, which included a fee levying school as well. Admittedly the post of Warden is equivalent to that of a Principal. In each case, an interim injunction was prayed for preventing the 17th defendant from assuming duties as Warden.
The plaintiff in D.C. Case No. 4974 sued as the father of two students attending STC (parent’s case) whilst the plaintiffs in D.C. Case No. 4949 sued as old boys (old boys’ case). The District Judge refused to issue the injunctions sought in each case. On applications made to the Court of Appeal by way of revision which were consolidated, the Court of Appeal set aside the order of the Trial Judge made in the parent’s case and ordered the issue of an interim injunction as prayed for. As regards the old boys’ case, the Court of Appeal held that the plaintiffs had no cause of action to sue. Three appeals were preferred from the judgment of the Court of Appeal. Of consent the appeals were consolidated and it was agreed by Counsel that the Court decides on the merits of the legal issues involved.
Dheeraratne J. held that, the plaintiff in the parent’s case has a cause of action within the meaning of section 5 of the Civil Procedure Code, on the basis of contract. An implied condition of such contract is for the Board of Governors to provide the plaintiff’s two children with a Warden qualified in terms of the regulations made by the Minister. The failure to do so amounts not only to “the refusal to fulfil an obligation” but also to “the neglect to perform a duty” within the meaning of section 5 of the Civil Procedure Code. He is, therefore, entitled to succeed.
The relationship between the old boys and the Board of Governors would not make the disputed appointment of the warden an infliction of a “wrong” on them to ground a cause of action to sue the Board of Governors. Therefore, the old boys’ case must necessarily fail.
Eksith Fernando Vs. Manawadu (2000 (1) S.L.R. 78)
The plaintiff Bank is the successor to the Emirates International Bank Ltd., whose rights were assigned to the plaintiff Bank by deed of assignment No. 603 dated 17.09.92.
The plaintiff instituted an action against the defendants on 21.5.96 jointly and severally to recover the sum of Rs. 12,413,814/46 being the total liability of the 1st defendant Company as at 8.1.96 on credit facilities provided by the plaintiff’s predecessor Bank by way of overdraft, time loan, packing credit and pledge loans. This was the total amount due on 30.9.89 plus interest thereafter. By way of security for the due re-payment of the accommodation granted to the 1st defendant by the Bank, the 1st defendant executed a Mortgage Bond dated 4.9.86 pledging the machinery, movables and book debts described in the agreement.
A statement of accounts was filed with the plaint. The mortgage bond was filed with the plaint and paragraph 6 of the plaint stated that it is pleaded as part and parcel of the plaint and that the action is filed to enforce the obligation created thereby. The 2nd to the 5th defendants had entered into a guarantee agreement with the Bank, dated 22.8.86 to pay the Bank the money due from the 1st defendant up to a limit of Rs. 11,200,000/-. By clause 2 of the guarantee they agreed to pay the Bank in Colombo, the money therein mentioned 10 days after demand in writing is made. Such demand was made by writing dated 26.4.96.
S.N. Silva C.J. held that, in the light of the definition of “cause of action” contained in section 5 of the Civil Procedure Code and the averments in the plaint, the action against the 1st defendant was not one for the recovery of money lent without written security or money lent “upon account stated” where the period of prescription is 3 years in terms of section 7 of the Prescription Ordinance which period has to be computed from the date of the default namely 30.9.89. The action was filed to enforce the obligation created by the Mortgage Bond. The applicable section would be section 5 of the Prescription Ordinance which relates to instances where the action is for the recovery of any sum due upon any mortgage of property or upon any bond conditioned for the payment of money. The action was not prescribed as it was filed within 10 years from the date of the mortgage as provided by that section.
Hatton National Bank Ltd Vs. Sellers Sports (Pvt.) Ltd (2000 (3) S.L.R. 326)
The cause of action as averred in the plaint could have arisen as a result of the discharge of the respondent co-operative society from the proceedings in the Magistrate Court.
C.A. No. 748/96(F), D.C. Colombo No. 7225/M, C.A. Minute dated 05.10.2001
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