44. Exemption from bar from lapse of time to be shown

44. If the cause of action arose beyond the period ordinarily allowed by any law for instituting the action, the plaint must show the ground upon which exemption from such law is claimed.

If on the footing of averments in a plaint the claim made therein is clearly prescribed, the claim is liable to be dismissed without evidence being gone into or consideration of the averment in the answer.

Soysa Vs. Soysa (17 N.L.R. 118) 

The plaintiff-respondent’s wife ‘N’ executed a mortgage bond on 13.10.1975. She died on 14.12.1998. The plaintiff-respondent filed a testamentary action on 22.06.1982, and letters of administration were granted on 27.03.1987. The plaintiff-respondent instituted the present action on 13.10.1987, after 12 years and 1 month of the execution of the mortgage bond. The District Court granted the reliefs prayed for.

On appeal – Somawansa J. held that;

1.On the death of ‘N’ on 14.12.1980 her rights on the mortgage bond devolved not only on her husband the plaintiff-respondent but also on her children who were minors at that time.

2.Thus, sections 13 and 14 of the Prescription Ordinance came into operation and in terms of section 14 the right of action that accrues to a party entitled to sue shall be subjected to the disabilities set out in section 13, until death or removal of such disability. The protection under sections 13 and 14 is a statutory protection which cannot be taken away.

3.In terms of section 13 and 14 until the disability of the children is removed either by children attaining majority or death, the running of prescription is suspended

Jayasena Vs. Dayasena (2002 (3) S. L. R. 261) 

Wimalachandra, J. held that;

Plaintiff instituted the action for recovery of damages from the defendant for the lost of her husband who died in an accident on 8.12.1995. Action was instituted on 7.12.1997. Defendant raised a preliminary objection on the ground that the action is prescribed in terms of section 9 of the Prescription Ordinance. While interpreting the words therein “within two years from the time when the cause of action shall have arisen” Court held that in computation of two years period the date on which the cause of action accrued is excluded.

Raja Nanayakkara Vs. Mercy Jayasinghe (C.A.L.A. 318/2003, D.C. Mt. Lavinia 1526/97/L, C.A. minute dated 24.6.2004)