HOWARD C.J.—Achi v. Palaniappa Chettiar
1941Present: Howard C.J. and Soertsz J.
ACHI et al v. PALANIAPPA CHETTIAR22—D. C. (Inty.) Colombo, 9,567
Commission to examine witnesses abroad—Application for commission to
Pudukottah—Defendant resident in Pudukottah—Plaintiffs selection of
Ceylon venue—Plaintiffs disentitled to commission.
Plaintiffs sued the defendant, who was described in the caption of theplaint, as presently resident in Pudukottah State, as executor de son tortof his father’s (Muthappa Chettiar) estate in Ceylon upon an awardobtained against Muthappa Chettiar in arbitration proceedings in BritishMalaya.
The plaintiffs applied for a commission to examine two witnesses inSouth India, one of whom was resident in Pudukottah.
Held that, as the plaintiffs had selected Ceylon as the venue for the trial,when they might have instituted proceedings in the Courts of Pudukottahand so facilitated the calling of their witnesses, they were not entitled toa commission to examine the witnesses in Pudukottah.
Ameresekera v. Cannangara (14 ri. L. it. 333), distinguished.
^ PPEAL from an order of the District Judge of Colombo.
H. V. Perera, K.C. (with him R. N. Ilangakoon), for the defendant,appellant.
N.Nadarajah (with him S. Mahadeva), for the plaintiffs, respondents.
Cur. adv. vult.
July 4, 1941. Howard C.J.—
The only question that arises on this appeal is whether the learnedDistrict Judge was right in allowing an application made by the plaintiffsfor the issue of a commission to the Chief Court of Pudukottah to examinetwo witnesses, one of whom is resident in the adjoining district of Ramnadand the other at Rayapuram in the said State. The proceedings that haveled up to this action have run a strange course. In 1918, one MuthappaChettiar, his brothers and the first plaintiff who were carrying on businessin partnership in Perak in British Malaya appointed certain arbitrators to
416HOWARD CJ.—Aehi v. Palaniappa Chettiar ,
divide the assets of the said business in Malaya. The arbitrators made anaward dated January 4, 1918, whereby Muthappa Chettiar was ordered topay a sum of Rs. 70,000 to the first plaintiff. It is alleged by the plaintiffsthat this award was accepted and that Muthappa Chettiar died onDecember 26, 1935, leaving an estate in Ceylon and a sum of Rs. 34,800with interest owing on the award. It is also alleged that the defendant,who is a son of Muthappa Chettiar, has intermeddled with the latter’sestate in Colombo and constituted himself an executor de son tort. Thefirst plaintiff is the widow and the second and third plaintiffs are thesurviving children of Kennappa Chettiar who was a son of one of thebrothers carrying on the said business in partnership with MuthappaChettiar. Paragraph 13 of the plaint states that the first and thirdplaintiffs have always been out of Ceylon and the second plaintiff came toCeylon in February, 1936. It is also to be noted that, although it is statedin the plaint that the defendant is resident in Colombo, he is also describedin the caption “ as presently of V.egupatti in Pudukottah State in SouthIndia ”. The petition in support of the plaintiffs’ application for theCommission states that the two witnesses whose evidence is necessaryto prove the award are two of the arbitrators who signed this documentand they have both refused to come to Ceylon. Of the other persons withknowledge of the award two are dead and the other is in the FederatedMalay States.' In allowing the application for a Commission the learnedDistrict Judge has purported to apply the law as laid down in Amere-sekera v. Cannangara'. It has, however, been contended by Mr. Pererain this Court that the learned District Judge, so far from applying the lav/as laid down in the judgment of Soertsz J., has completely misunderstoodthe ratio decidendi of that decision. It is, in the circumstances, necessaryto institute a somewhat meticulous and careful comparison of the factsin the two cases. In Ameresekera v. Cannangara (supra) the plaintiffbrought an action to recover sums by way of rent, alleged to have beencollected by the defendant. The defendant who was resident in Englandadmitted that he had collected a certain amount by way of rent, butclaimed that he had expended that sum and an additional amount inmaintaining the plaintiff during his stay in England. The defendantclaimed this additional sum in reconvention. He asked that his ownevidence and that of three witnesses, one of them a Doctor, resident inEngland and testifying, to the fact that the plaintiff had to be segregatedin England as he was suffering from a contagious disease, should be takenon conrimission. The trial Judge refused the application for a commissionbecause he thought that in view of the claim in reconvention the Courtshould have the defendant and his witnesses before it so that their evidencemight be assessed properly with reference to the kind of witnesses theyappeared to be, and to the manner of their giving evidence. The Judgealso thought that the statement made in the affidavit that the defen-dant’s state of health made it inadvisable for him to embark on a voyage toCeylon was belatedly made and that there was no direct evidence to showthat Mr. and Mrs. Ramsden were unwilling to come to Ceylon. TheCourt of Appeal held that in refusing a commission the learned DistrictJudge had misdirected himself and exercised his discretion wrongly. In
'41 .V. L. R. 133.
HOWARD C.J.—Achi v. Palaniappa Chettiar.
giving the reasons of the Court for this decision Soertsz J. invited attentionto the following points: —
The defendant had been resident in England since 1926 and his
intention was probably to continue to reside there;
The claim was against the defendant and not by him;
It could not be said that the defendant wished to avoid the risk
of cross-examination in open Court;
There was evidence that the voyage to Ceylon would be prejudicial
to the defendant’s health;
Dr. Low was a professional gentleman and the Ramsdens were
working people. It was unlikely they would come to Ceylon togive evidence;
(/) The expenditure incurred in procuring the attendance of thesewitnesses was out of all proportion to the nature and amount ofthe claim;
(g) The interests of justice would not suffer by the evidence referred tobeing taken on commission.
In the present case the plaintiffs who ask for a commission selectedCeylon as the venue for the trial whereas they might have institutedproceedings in the Courts of Pudukottah and so facilitated the calling oftheir witnesses. The fact that the defendant has property in Colombodoes not make it imperative for the action to be instituted in Ceylon.Having obtained a judgment in the Courts of Pudukottah the plaintiffscould sue on it in the Courts of Ceylon. The witnesses are resident inSouthern India and hence the distance they would have to travel to giveevidence in Ceylon cannot be compared with the distance from England.Moreover the expense incurred in bringing these two witnesses to Ceylonis trivial cbmpared with the expenses incurred in bringing three witnessesfrom England. Another factor that merits consideration in decidingwhether it is in the interests of justice to grant a commission is the factthat the action of the plaintiffs is belated and there has been a delay ofover twenty years in proceeding to enforce the award. In view of thislong interval it is obvious that witnesses giving evidence in regard to theaward will have considerable difficulty in recollecting the facts relatingthereto and the circumstances in which it was made. Hence the necessityfor close cross-examination of these witnesses. It is not possible to saythat justice will not suffer if the trial Judge has not the’ opportunity ofobserving the bearing of such witnesses when giving evidence.
In view of the comparison instituted in this judgment it is clear that thefacts in the present case reveal very slight similarity to those in Amere-sekera v. Cannangara Bearing this in mind it is necessary to examineclosely the reason given by the learned District Judge for. granting theapplication for the issue of a commission. In his judgment he states asfollows: —
“There is a long chain of judicial authority on this point and thematter culminated quite recently in Ameresekera v. Cannangara. (supra)where learned Counsel for the defence himself argued the question before
» 41 X. L. R. 333.
14J N. B 17628 (6/52
HOWARD C.J.—A chi v. Palaniappa Chettiar.
the Supreme Court in appeal and got the law settled and clarified. I amunable to see any distinction between the law which was laid down inAmeresekera v. Cannangara and the present case. In my judgmenton which the decision in Ameresekera v. Cannangara is founded I wentthrough all the decided authorities and came to the conclusion that acommission should not issue. It has been pointed out that the Courtshould not take too technical a view of these matters and I do notpropose to take a technical view in this case. In my opinionI am unable to distinguish Ameresekera v. Cannangara from thepresent case. ”
It must be borne in mind that the decision in Ameresekera v. Cannangarareferred to by the District Judge set aside his order disallowing acommission. It is, therefore, somewhat peculiar that he should state that“ in my judgment on which the decision in Ameresekera v. Cannangarais founded I went through all the decided authorities and cameto the conclusion that a commission should not issue In view of thefact that his decision was reversed by this Court it can hardly be saidthat “ the decision ” was founded on “ his judgment ” which reviewed“ all the decided authorities ”. The learned District Judge also states“ I am unable to see any distinction between the law which was laiddown in Ameresekera v. Cannangara and the present case ”, whilstat the end of his judgment he states “ I am unable to distinguishAmeresekera v. Cannangara from the present case ”. As alreadypointed out by me it is impossible to conceive of facts more dissimilar.With regard to the law laid down in Ameresekera v. Cannangara,Soertsz J. in his judgment in that case formulated the principle that“ the exercise of a discretion vested in a Court, must depend on thepeculiar facts and circumstances of each case ”. He expressly statedthat “ case law is not of much assistance in a matter of this kind ”. Itis, therefore, a matter for the deepest regret that the learned Judgeshould have misunderstood the decision in this case to the extent of statingthat, he “ is unable to see any distinction between the law whichwas laid down in Ameresekera v. Cannangara and the presentcase ”.
A reference to the English decisions indicates that the Courts in Englandonly grant a commission when it is necessary for the purposes of justiceand that in the case of a plaintiff who has chosen the tribunal it is onlyin exceptional circumstances that' the order can be obtained. Eventaking a broad and liberal view, I am of opinion that to grant this applica-tion would be entertaining it lightly. Its grant would not, in the circum-stances of this case, be conducive to the administration of justice. Ingranting it the learned District Judge has misdirected himself and exer-cised his discretion wrongly. His order granting the application is, there-fore, set aside with costs in this Court and the Court below.
Soertsz J.—I agree.
ACHI et al. v. PALANIAPPA CHETTIAR