Counsel must grasp what constitutes Cause of Action | Daily News

Counsel must grasp what constitutes Cause of Action

A Plaintiff in the District Court sold a property with the condition he could buy it back within one year, but he did not.

Around six years later he came to Court pleading he be paid for the proper value of the property citing Laesio Enormis which means that a person has a right to be paid the true value of property if it has been sold for less than half its value at the time of sale.

But the Defendant contended that the action had been prescribed, i.e., that the Cause of Action on which the Plaintiff was suing was such that it had been made impossible by law to sue upon, due to the effluxion of time.

The District Court judge ruled with the Defendant, i.e., that the action is prescribed. The Plaintiff appealed. (Gunasekera Vs Wickremasinghe - SLR - 390, Vol 1 of 2005 [2005] LKCA 2; (2005) 1 Sri LR 390 (February 17, 2005)).

The Court of Appeal describes the case as follows in judgement: “At the hearing of this appeal Gamini Marapana P.C. strenuously contended that the Plaintiff-Appellant’s action is based on the contract of sale as evidenced by the deed marked ‘A’ … and submits that the learned District Judge has clearly misdirected himself and erred in law when he came to a finding that the Section applicable was 10 and not 5 and 6 of the Prescription Ordinance as contended by Counsel for the Plaintiff-Appellant. In support of the aforesaid reasoning counsel has cited a number of cases to which I would refer later.

“It is common ground that the date of execution of the conditional transfer deed marked ‘A’ is 17. 09.1987 and the date of institution of this action is 14. 06. 1993, viz., six years of the execution of the aforesaid conditional transfer marked ‘A’. It is common ground and is also admitted that the Plaintiff-Appellant’s Cause of Action is based on the principle Laesio Enormis. In the circumstances I am unable to agree with the Counsel for Plaintiff-Appellant that the Plaintiff-Appellant’s action is based on a contract of sale as embodied in the document marked ‘A’.”

As was held in Jackson vs. Spittal: “Every action is based on a Cause of Action. The popular meaning of the expression is ‘Cause of Action’ that a particular act on the part of the Defendant which gives the Plaintiff his cause of complaint.”

The Cause of Action is not the transaction, the Judges of the Court of Appeal held. The Cause of Action is not the transaction, Court was at pains to explain, because the Plaintiff himself has stated in his plaint the ‘Cause of Action’ or what he is suing upon is Laesio Enormis. Therefore prescription has to be determined depending on the Cause of Action. However, the Prescription Ordinance does not refer to Leasio Enormis so prescription has been set by the District Judge based on section 10 of the Prescription Ordinance which stipulates provision to the effect that if the Cause of Action is anything that’s not specifically provided for in the Prescription Ordinance, then the period of prescription is three years. Three years had lapsed since the transaction took place – and therefore the action was prescribed by law, the Court of Appeal ruled.

In explaining that Cause of Action is not the transaction per se but what the Plaintiff is suing a Defendant about, the Court of Appeal held as follows: “I adhere strongly to the view that I have expressed in a series of cases that the term ‘Cause of Action’ as used in the Civil Procedure Code ought not to be construed as if it were identical with the transaction out of which the right to relief arises.”

“In this respect I am inclined to follow the stringent view expressed by Wood Renton, CJ, in the aforesaid decision in Abeydeera vs. Hami. In the circumstances I am unable to agree with the Counsel for the Plaintiff-Appellant that the Plaintiff-Appellant’s action is based on the contract of sale embodied in the document marked ‘A’. The contract of sale is only the transaction and not the Cause of Action, for the Plaintiff-Appellant himself, has admitted that the Plaintiff-Appellant’s Cause of Action is based on the ground of Laesio Enormis. In any event, as was observed in Hanifit vs. Nallamma once issues are framed the case which the Court has to hear and determine becomes crystallized in the issues and the pleadings recede to the background. This is more so when an admission is recorded by which the parties agree that the issue was on erecting to Laesio Enormis only.”

Counsel for the Plaintiff cited six cases in all, supporting his contention about prescription but as described below in the judgement, these cases were deemed to be irrelevant to the Cause of Action in the case under review:

“Counsel for the Plaintiff-Appellant cited three decisions in support of his contention. They are Ven. Kirikitta Saranankara Thera vs. Ven. Medegama Dhammannanda Thera, Ven. Panditha Watugedera Amaraseeha Thera vs. Ven. Tittagalle Sasanatilaka Thera and Ven. Mapalane Dhammadaja Thera vs. Ven. Rotumba Wimalajothi Thera. The aforesaid decisions deal with exclusion against temple property and have no relevance to the facts of this action. Counsel also cited three other decisions which also can be distinguished. The decisions deal in Sinnamy Aiyer vs. Batampiki Amma which relates to an agreement for sale in writing where the period was six years. Appuhamy vs. Appuhamy an action based on a mortgage bond wherein it was held it was prescribed in 10 years and Lamatena vs. Rahaman Doole which related to the balance consideration in respect of a deed of sale not been paid.”

For the aforesaid reasons, the Court of Appeal saw no basis to interfere with the judgement of the learned District Judge. Accordingly, the Appeal was dismissed with costs fixed at Rs. 5,000.


Add new comment