1922. Siadoris v. Silva this neglect caused the channel to be blocked and eventually to breach, thus spreading the present silt over plaintiff's land. The channel was the plaintiff's, and he should have kept it in order. As regards damages the claim is exorbitant. At Rs. 20 per kuruni which defendant's counsel accept as reasonable, and which from Mr. Goonesekere's evidence I accept as reasonable value of the landthe plaintiff might, if successful, be awarded Rs. 250 for the value of the land and Rs. 100 for loss of crop. This, I consider, would be a reasonable amount to award if plaintiff succeeded. On my finding on the second issue, I dismiss the action, with costs. Elliott, K.C. (with him Weerasuriya), for plaintiff, appellant. H. J. C. Pereira, K.C. (with him M. W. H. de Silva), for defendant, respondent. February 15, 1922. SCHNEIDER J. This appeal raises two questions: First, is the defendant liable in damages; and next, if he is, what is the measure of the damages? It is well established by the evidence in the case that a large quantity of silt had been carried along the drains in the defendant's land which he had cleared and planted with rubber into a water channel in the plaintiff's field; the channel was blocked and eventually breached, and the silt overflowed into the field and rendered it unfit for cultivation as a field. The plaintiff claimed Rs. 900 as damages, and also an order that the defendant should remove the silt. The learned District Judge held that the silting was in consequence of the operations on the defendant's land, but he thought that the plaintiff should have kept the channel clear as it was in his field, and that as he had failed to do so, he was not entitled to any damages. If the plaintiff were entitled to damages he thought he should be awarded Rs. 250, "the value of the land," and Rs. 100, the value of the loss of the crop. He dismissed the plaintiff's action. The appeal is by the plaintiff. The learned Judge's attention does not appear to have been directed to the case of Samuel Appu v. Lord Elphinstone 1 which is entirely in point. Upon the facts proved the defendant is clearly liable in damages as held in that case upon the principle " Sic utere tuo ut alienum non lædas." I would, therefore, hold accordingly. Clearly the District Judge has assessed the damage upon a wrong principle. The damages should be (1) the loss of crop-that is, not the value of the whole crop, but only of the landlord's share of it; if the plaintiff has had the field cultivated upon the agreement that he should receive a share of the produce. If the plaintiff had cultivated the field himself, it should be the value of the crop, less the cost of cultivation. 1 (2) The cost of the restoration of the field to that state in which it was prior to the tort complained of, or, in other words, the cost of the removal of the silt. The learned District Judge stopped evidence which the defendant might have called. I am not satisfied with the plaintiff's proof of damages. I would, therefore, set aside the decree appealed from, hold that the plaintiff is entitled to recover damages, and remit the case for the assessment of damages upon the measure indicated by Each party will be entitled to lead evidence upon the issue of damages. The plaintiff will have his costs of this appeal. Other costs will abide the order of the District Judge. me. PORTER J.-I agree. 1922. SCHNEIDER J. Siadoris v. Silva Set aside. Present: Bertram C.J. and Porter J. 1922. AVVA UMMAH v. CASINADER. 78-D. C. Batticaloa, 5,253. No averment in plaint disclosing jurisdiction of Court-Plaint accepted by oversight-Mistake pointed out by defendant-Return of plaint for amendment-Rejection of plaint. Where the plaint did not allege anything on the face of it which gave it jurisdiction, and the Court by an oversight omitted to notice the defect and accepted the plaint, and where the attention of the Court is called to the point by the defendant Held, that the Court ought either to reject the plaint, or to return it to the plaintiff for amendment. THE facts appear from the judgment. Navaratnam, for appellant.-The plaint is defective ex facie in that it does not indicate where the cause of action arose. This being so, can the Court exercise jurisdiction? Want of material particulars in a plaint can be cured by the attention of the Court being drawn to the defect. There was no motion before the Court, as stated by the judge, either to reject the plaint or to dismiss the action. The fact that the Court had already entertained the plaint did not preclude an amendment at the Court's discretion. The Court had ample power under section 93 of the Code to amend the plaint. Counsel relied on 1 N. L. R. 292. 1922. Avva Ummah September 4, 1922. BERTRAM C.J. This is an appeal against an interlocutory order of the District v. Casinader Court of Batticaloa. The action was an ordinary action for the repayment of money lent, but the plaint did not allege anything on the face of it which gave the Court jurisdiction. Accordingly Mr. Abdul Cader, in the first instance, drew the attention of the learned Judge to the fact that it was not stated in the plaint that the transaction took place within the jurisdiction of the Court. The proper procedure in such a case is that indicated by Bonser C.J. in the case of Read v. Samsudin.1 There Chief Justice Bonser held that when a plaint is defective in some material point, and that appears on the face of the plaint, but by some oversight the Court has omitted to notice the defect, then the defendant, on discovering the defect, may properly call the attention of the Court to the point, and then it will be the duty of the Court to act as it ought to have done in the first instance, either to reject the plaint or to return it to the plaintiff for amendment. Mr. Abdul Cader seems consciously or unconsciously to have exactly followed this procedure. The learned Judge does not appear to have appreciated Mr. Abdul Cader's position. He speaks first of something said by Mr. Abdul Cader, next he refers to a motion to reject the plaint, and finally to a motion to dismiss the plaint. It seems, however, clear from the authority cited by Mr. Navaratnam that Mr. Abdul Cader's procedure was correct. The defect in the plaint has now been made good by the application of the proctor for the plaintiff, and no further action is therefore necessary. But the appellant is certainly entitled to relief in respect of the order casting him in costs in the Court below, and he is entitled to his costs in this Court. The appeal, therefore, would be allowed, and the order is set aside, with costs here and in the Court below. PORTER J.-I agree. 1 1 (1895) 1 N. L. R. 292. Appeal allowed. Present: Ennis and Schneider JJ. RANASINGHE v. PERERA. 84-D. C. Colombo, 52,355. Alimony Application by wife for enhancement-Civil Procedure Code, 8. 615. There is no provision for the enhancement of alimony on the application of a wife. THE respondent in this action sued the appellant for divorce on the ground of adultery and malicious desertion, and claimed Rs. 40 a month as alimony. The appellant filed answer alleging that the respondent herself was guilty of adultery with certain specific persons and of malicious desertion, and prayed that their marriage be dissolved, and denied that respondent was entitled to any alimony. On May 2, 1919, at the trial the action was settled by the parties, and of consent, they agreed that an order should be made for separation a mensâ et thoro, that the appellant should pay Rs. 17.50 a month as permanent alimony, and that each party should bear his own costs, and decree was accordingly entered. In November, 1921, the respondent applied that the alimony payable by appellant should be increased, and by his order dated May 22, 1922, the learned District Judge ordered that the appellant should, from the month of June, 1922, pay Rs. 22.50 as alimony, and bear the costs of the inquiry into the application. Keuneman (with him Weerasuriya), for appellant. September 6, 1922. ENNIS J. This is an appeal from an order enhancing alimony. It appears that the defendant was ordered to pay alimony at the rate of Rs. 17.50 a month on a decree of separation. The decree was passed under section 615 of the Code of Civil Procedure. Such a decree can be altered only where there is an express provision for such alteration. Section 615 makes provision for an alteration in the amount of alimony on the husband's application, but makes no provision for an enhancement of alimony on the application of the wife. I accordingly allow the appeal, without costs. SCHNEIDER J.—I agree. Appeal allowed. 1922. 1922. Present: Schneider J. INSPECTOR, SOCIETY FOR THE PREVENTION OF P. C. Gampola, 4,579. Cruelty to animals-Killing wild elk in a cruel manner—“ Animal Where a number of people chased a wild elk which had not been previously captured, and killed it in a cruel manner— Held, that they were not punishable under the Cruelty to Animals Ordinance, 1907, as the wild elk was not an "animal" within the meaning of the term in the Ordinance. THE facts appear from the judgment. Navaratnam, in support.-The term "animal" is defined in section 3 of Ordinance No. 13 of 1907 as any domestic or captured animal. The evidence shows that the elk in question was a wild animal. The conviction under section 6 is therefore bad. June 7, 1922. SCHNEIDER J.— The fifth and eighth accused, who have been convicted and fined Rs. 20, bring up these proceedings by way of revision. The application for revision was made on the ground that the facts did not justify the conviction, but counsel who appeared in support of that application has urged that the conviction is bad inasmuch as the animal, in respect of the treatment of which the conviction is founded, does not come within the definition of animal in the Ordinance. The Ordinance defines an animal as meaning any "domestic or captured animal." Admittedly the elk that was killed was a wild animal. It therefore remains to be considered whether the animal was captured. I think the evidence disclosed that it had not been captured. The evidence of Heenhamy and Menika, the only witnesses for the prosecution, shows that they saw a number of men chasing the elk in question, and then surround it and beat it to death with sticks, while the fifth accused, after the animal had fallen, ripped open its stomach with a knife. This evidence, therefore, to my mind shows that the animal had not been captured. There is no question as to the cruel manner in which the accused had behaved, for the elk was heavy with young, but I think the accused are entitled to be acquitted and discharged for the reason that they have committed no offence punishable under the Ordinance. I accordingly set aside the conviction, and acquit the accused. |