NIHILL J.—de Silva v. de Zoysa.
1939Present: Nihill J.
DE SILVA v. DE ZOYSA et al.
40—C. R. Balapitiya, 21JS39.
Court of Requests—Rejection of evidence—Point taken in appeal—Failure toraise point in petition of appeal—Civil Procedure Code, s. 833a.
A question relating to the rejection of evidence offered at the trial ofan action for debt in the Court of Requests is a matter of law which maynot be argued at the hearing of an appeal from the judgment of the Courtunless the question has been expressly raised in the petition of appeal.Gordon Brooke v. Peera Veda (9 N. L. R. 302) followed.
PPEAL from a judgment of the Commissioner of Requests,Balapitiya.
./. E. M. Obeyesekere (with him P. H. Goonetileke), for defendant,appellant.
M.C. Abeywardene, for plaintiff, respondent.
October 6, 1939. Nihill J.—
1 have considered the preliminary objection taken by respondent’sCounsel that at the hearing of the appeal, appellant’s Counsel mustconfine himself to the point of law raised in the appeal petition. Thisappeal has had a somewhat chequered career, this being the secondpreliminary objection taken before this Court.
Mr. Obeyesekere for the appellant has now intimated that he wishes toraise also a question concerning an alleged wrongful rejection of evidence,which, had it been admitted by the learned commissioner would haveshown that the debt alleged to be due from the first defendant-appellanthad been settled. From the facts quoted to me, it appears that certainaccount books kept by the second defendant could not be produced atthe trial as objection was taken to his being called on the ground that hisname had not been listed as a witness. The learned Commissioner upheldthis objection.
Mr. Obeyesekere argued that in doing so, the learned Commissionermust have overlooked the second proviso to section 175 of the CivilProcedure Code where it is stated that any party to an action may becalled as a witness without his name having been included in the list ofwitnesses.
In this case it should be noted that it was the second defendant’sCounsel who took the objection to his client being called, nevertheless thepoint made by Mr. Obeyesekere may be a good one, and it is unfortunatethat it was not raised in the appeal petition. The question for mydetermination now is—that not having been so raised, can it be argued inthese proceedings ? In Gordon Brooke v. Peera Veda', Layard C.J. heldthat in an appeal from a Court of Requests, the Court could only heararguments on the matter of law stated in the petition of appeal.
■ [1905) 9 N. L. R. 302.
Dharmawardene v. Abeywardene.
Mr. Obeysekere asks me to distinguish between that case and this onthe grounds that here it is a question which arises from the admission orrejection of evidence and that as all the facts are before me as completelyas they were at the trial, the principal enunciated by Lord Herschell inthe House of Lords case of The Tasmania' tells in his favour.
With regard to the first of these submissions, it is true that the wordingof section 833a of the Civil Procedure Code suggests that there may be adistinction between “ a matter of law ” and a question arising upon theadmission or rejection of evidence, but if there is, it is a distinction withvery little difference. Questions concerning the admissibility orinadmissibility of evidence are surely questions of law and as such couldbe raised under section 833a even if the words “ or upon the admission orrejection of evidence ” were not there and if that be so, the principleenunciated in Gordon Brooke v. Peera Veda (supra) has equal applicability.
With regard to The Tasmania (supra), it may well be that this is amatter which an Appeal Court might properly consider in deciding anappeal even although it is not stated in the petition of appeal (section 758
of the Civil Procedure Code) but Chapter LXVL provides special rulesas to procedure in Courts of Requests and section 801 gives precedence tothe special rules where there is inconsistency.
It is one of these special rules that there shall be no right of appeal fromany final judgment unless upon a matter of law, and judicial decision hasdetermined that this Court cannot hear arguments on matters of law notdirectly and succinctly stated in the petition of appeal and I am notprepared to go beyond that. I therefore uphold the objection.
Let the case be relisted for argument on the point of law raised in thepetition.
DE SILVA v. DE ZOYSA et al