ASSOCIATE NEWSPAPERS OF CEYLON LTD. vs. FELICA KARIYAKARAWANA

045-SLLR-SLLR-2006-V-2-ASSOCIATE-NEWSPAPERS-OF-CEYLON-LTD.-vs.-FELICA-KARIYAKARAWANA.pdf


CA
Associated Newspapers of Ceylon Ltd. Vs.
Felicia Kariyakarawana
359
ASSOCIATED NEWSPAPERS OF CEYLON LTD.vs.
FELICIA KARIYAKARAWANACOURT OF APPEALIMAM, J.
SRISKANDRAJAH, J.
CALA 417/2003 (LG).
DC COLOMBO 15136/MR.
JULY 11,25, 2005.
Civil Procedure Code – Section 86(2) – Section 392 – Actio Injuriarum – Actionbased on Defamation – Ex-parte decree entered – Vacation of ex-parte decreesought – Plaintiff dies – Wife substituted conditionally until an order was maderegarding the vacation of ex-parte decree – Was the stage of “litis constestatio"reached ? – Actio personalis moritur cum persona.
The plaintiff (original) instituted action claiming damages on the ground ofdefamation. Ex-parte decree was entered. The defendant-petitioner sought to
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vacate same, and after the inquiry was concluded the original plaintiff passedaway. The wife of the original plaintiff was sought to be substituted. Thedefendant-petitioner objected on the ground that, the personal action filed isextinguished upon the death of a person in whose favour such a cause ofaction arose. The learned District Judge allowed the substitution only until anorder was made regarding the vacation of the ex-parte decree. The DistrictJudge vacated the ex-parte order .and permitted the defendant-petitioner to fileanswer. At the trial the issue was raised as to whether with the death of theplaintiff, the substituted plaintiff could have and maintain this action. This wasanswered in the affirmative by the District Judge. On leave being granted-
HELD:
The actio injuriarum is transmissible neither actively nor passively,except where litis contestatio has been reached.
When the ex-parte decree was vacated (15.02.96) the stage of litiscontestatio had not been reached as the defendant had not filed answerand issues had not been framed. Litis contestatio is reached whenpleadings are closed and matters are at issue between the parties.
Where the principle ‘Actio Personalis Moritur cum persona' appliedsection 392 of the Civil Procedure Code will not apply. This maximapplies to every action for libel or slander and therefore where a libel orslander has been published by any person and such person dies, nocause of action survives either for or against his personal representative.
Provisions of section 392 will not apply and no cause of action wouldaccede to the plaintiffs wife the substituted plaintiff-respondent and asat 15.02.1996, stage of litis contestatio had not been reached, and eventhe pleading are incomplete.
APPLICATION for leave to appeal from an order of the District Court ofColombo, with leave being granted.
Cases referred to:
1. Deerananda Thero vs. Ratnasara Thero 60 NLR 7
CA
Associated Newspapers of Ceylon Ltd. Vs.
Felicia Kariyakarawena (Imam, J.)
361
2. John Fernando and Attorney General vs. Sataraslnghe – 2002-2 NLR 113
Navin Marapana with Ms. A. D. Samaraweera for Defendant-petitionerMahinda Ralapanawa with Ms R. N. N. Wijeratne for substituted plaintiffrespondent
Cur. adv. vult.
April 24th, 2006.
IMAM, J.The Defendant-Petitioner (hereinafter referred to as the Petitioner) filedthis application for leave to appeal against the order of the learned AdditionalDistrict Judge of Colombo dated 22.10.2003 (XII) seeking to set aside theaforesa id order inter-alia other reliefs sought for in the prayer to the petitiondated 10.11.2003. The facts of the case are briefly as follows; The PlaintiffEamon Kariyakarawana instituted action bearing No. DC 15136/MR in theDistrict Court of Colombo on 13.06.1994 claiming damages from the‘Petitioner1 on the ground of Defamation with regard to an Article publishedin the “Silumina Newspaper" by the “Petitioner”. On 18.03.1996 the Plaintiffand the Plaintiff counsel were present in Court, the Defendant (‘Petitioner1)was absent and unrepresented. Ex-parteTrial was concluded, and the Ex-parte order was served on the Defendant. Consequent to the Ex-parteDecree being served on the Defendant, the Defendant filed papers undersection 86(2) of the Civil Procedure Code, sought the vacation of the Ex-parte decree and moved to file answer. The Defendants Registered Attorneygave evidence and the inquiry concluded with written submissions beingtendered. The Plaintiff apparently expired on 03.01.1997 which fact wasnot mentioned in the written submissions tendered by both sides.
When the Attorney-at-law appearing for the plaintiff sought to substitutethe plaintiffs wife Mary Florence Filicia Kariyakarawana (hereinafter referredto as the ‘Substituted Plaintiff-Respondent’) the petitioner objected to thesubstitution on the basis that there was no marriage certificate filed alongwith her affidavit, besides many other grounds stated in the objections,and on the legal principle Actio Personalis Moritur Cum Persona“ whichmeans that a personal action such as one based on Defamation, Libel, orslander is extinguished upon the death of a person in whose favour such acause of action arose. By his order dated 26.09.1997 (X5) the learnedAdditional District Judge conditionally permitted the aforesaid substitutionholding that “Regarding the matter whether the action survives, in a case
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where a Decree though ex-parte is entered I am of opinion that the state of“Litis Contestatio” has been reached, because this stage is reached afteraffording proper opportunities to the Defendant, It may be that the Defendantmay have a case to set aside that particular Decree. However at law uptothe point a decision is made on the vacation of the ex-parte order thePetitioner has to be substituted in the place of the Plaintiff. The aforesaidorder (X5) allowed the substitution only until an order was made regardingthe vacation of the Ex-parte Decree. However, by order dated 19.03.1998(X6) the learned Additional District Judge vacated the aforesaid Ex-parteDecree, and permitted the Defendant (‘Petitioner’) to file answer on01.04.1998. On 01.04.1998 the Defendant (‘Petitioner’) filed answer whichwas more than one year after the Plaintiff had died.
On 25.03.2003 the ‘Substituted-Plaintiff-Respondent’ and the Defendant“Petitioner" were present and represented by counsel, and the trialcommenced with 6 admissions being recorded, 7 issues being raised onbehalf of the Plaintiff, and on primary legal issue being raised on behalf ofthe Defendant as to whether with the death of the Plaintiff, the Substituted-Plaintiff could have and maintain this action, the learned Additional DistrictJudge accepted issue No. 8 as a Primary Legal issue, and invited bothsides to tender written submissions in this regard, which was compliedwith. Consequently the learned Additional District Judge by order dated22.10.2003 (XII) answered the aforesaid primary legal issue No. 08 in theaffirmative and fixed the case for further trial. It is against this order thatthe Defendant-Petitioner’ has tendered this leave to appeal application.
On 03.08.2004 when Counsel for the1 Defendant-Petitioner’ and counselfor the Substituted-Plaintiff-Respondent were present in this Court, thelatter counsel consented to leave being granted, consequent to whichleave to appeal was granted, and this case fixed for argument. Thecontention of the Petitioner was that a state of ‘Litis Contestatio' wasreached only when pleadings are completed, and the dispute between theparties was clear. It was further averred by the Petitioner that in the orderdated 26.09.1997 (X5) the learned Additional District Judge held that ‘LitisContestatio’ was reached only because at the time of death of the Plaintiff,there was an Ex-parte decree in favour of the plaintiff. The ‘Petitioner’further contended that in accordance with the order of the learned AdditionalDistrict Judge dated 19.03.1998 (X6) the aforesaid ex-parte decree wasvacated, and since then the status quo in this case reverted back to theposition that remained on 15.02.1996 when this case was first fixed for ex-parte trial. The Petitioner averred that on this date ‘Litis Contestatio’ couldnot have been reached as the Petitioner had not even filed an answer, the
CA
Associated Newspapers of Ceylon Ltd. Vs.
Felicia Kariyakarawana (Imam, J.)
363
answer being filed on 01.04.1998 which was approximately 2 years afterthe plaintiff had died and that even issues had not been framed at thatpoint of time, and thus sought remedy by way of appeal to set aside theorder of the Learned Additional District Judge dated 22.10.2003 (XII)
The Substituted-Plaintiff-Respondent was of the view that as the learnedAdditional District Judge came to a finding that the stage of 'Litis Contestatio’had been reached as per order of the learned Additional District Judge(X5) dated 26.09.1997, that order cannot be changed now, and that theorder of the learned Additional District Judge dated 22.10.2002 was acorrect order and sought that the case be fixed for further trial at theDistrict Court.
I have examined the application of the petitioner and the position takenup by the Substituted-Plaintiff-Respondent.
A preliminary legal objection taken up by the ‘Petitioner’ is set out inIssue No. 8 raised on behalf of the Defendant-Petitioner’ on 25.03.2993,The original Plaintiff died on 03.11.1997 which is more than one year beforethe Defendant-Petitioner filed answer, and the question to be determinedis whether the Substituted-Plaintiff-Respondent can maintain this action.C. F. Amerasinghe in his book, Defamation and other aspects of the ActioInjuriarum in Roman Dutch Law” at page 315 states that “The ActioInjuriarum is transmissible neither actively nor passively, except wherelitis contestatio has been reached, the Plaintiffs heir may continue theaction” The learned Additional District Judge by his order dated 26.09.1997(X5) held that a point of Litis Contestatio had been reached only becauseat the time of death of the Plaintiff there was an ex-parte Decree in favourof the Plaintiff. The very same Additional District Judge by order dated19.03.1998 (X6) vacated the ex-parte decree in favour of the Plaintiff,consequent to which in my opinion the status quo in this case revertedback to the position that remained on 15.02.1996 when this case was firstfixed for Ex-parte trial. It is my view that on 15.02.1996 the stage of “LitisContestatio” had not been reached as the Defendant had not filed Answerand Issues had not been framed. The Answer of the Defendant was onlyfiled on 01.04.1998, and Issues were framed on 25.03.2003, which is longafter 15.02.1996, An Introduction to Roman Dutch Law by R. W. Lee 5th
edition at page 442 states that “Litis Contestatio, which in modern
practices is reached when the pleadings are closed and matters are atissue between the Parties.”
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In Principles of Southern African Law by Wide 5th Editionpage 530 states that “Death of a party-Upon the death of either party tothe Actio Injuriarum the cause of action lapses ; The maxim “ActioPersonalis mortitun cum persona” applies unless the action has reachedthe stage of “Litis Contestatio” (/'e close of pleadings) in which event theaction passes to the Executor of the wronged person or persists againstthe Executor of the Wrongdoer, as the case may be"
In Deerananda Thero vs. Ratnasara Thero' His Lordship T. S. FernandoJ. held that in a case where the principle Actio Peronalis Moritur CumPersona applied, section 392 of the Civil Procedure Code (which appliesonly when the cause of action survives) will not apply.
In John Fernando and Attorney General Vs. Satarasinghe12’ at 113,His Lordship Weerasuriya, J held that the maxim 'Action Personalis MoriturCum Persona' applies to every action for libel or slander and thereforewhere a libel or slander has been published by any person and suchperson dies, no cause of action survives either for or against his personalrepresentative’.
Section 392 of the Civil Procedure Code states that The death of aPlaintiff or Defendant shall not cause the action to abate if the right to sueon the cause of action survives’
However, in the present case it is my view that as at 15.02.1996 thestage of litis contestatio had not been reached between the parties, andeven the pleadings were incomplete.
Hence, the provisions of section 392 of the Civil Procedure Code willnot apply and no cause of action would accrue to the Plaintiffs wife, theSubstituted-Plaintiff-Respondent
Hence, the order of the Learned Additional District Judge dated22.10.2003 (XII) is contrary to law and is against the weight of the caselaw and evidence.
Thus for the aforesaid reasons I allow the appeal of the Petitioner andset aside the order of the learned Additional District Judge of Colombodated 22.10.2003 (XII) without costs
SRISKANDARAJAH, J. — / agree.
Appeal allowed.