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Present; Bertram C.J. and Schneider J.
DINGIRI MAHATMAYA v. MUDIYANSE et ol,
88—D. C. Ratnapura, 3,598
Administration of justice should be free from suspicion^—Proctor advisingone party hearing case as District Judge.
It is important that the administration of justice should befree from even the suggestion of suspicion. A person acting asDistrict Judge who has advised one of the parties should notproceed to try a case without getting the express consent of bothparties.
Though no objection was taken at the hearing or in the petitionof appeal, the Supreme Court sent the case back for re-hearingbefore another Judge.
^ HE facts appear from the judgment.
W, Jayawardene (with him Canakeratne), for appellants.
R. L. Pereira (with him W. C. de Silva), for respondent.
September 15, 1922. Bertram C.J—
It appears in this case that the learned District Judge, who ispermanently Additional District Judge, as well as Crown Proctor,had himself at one stage of the proceedings been proctor for theplaintiff, and in this capacity addressed a ^letter on behalf of the
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plaintiff to the defendants warning them not to build the house onthe land in dispute. In his judgment he says:“The defendants
were warned not to build the house ” (Bee P 12,: i.e., the letterreferred to). “ They elected to build notwithstanding thatwarning, ” and observes a little further down ; “ The defendantsare maid fide possessors, and cannot, therefore, compel the plaintiffto pay them compensation for the house.”
It had apparently escaped the notice of the learned DistrictJudge that he himself was the person who wrote the letter onbehalf of plaintiff. No objection was taken by the defendant atthe hearing or in the petition of appeal, but we think it right, onthe matter being brought to our notice, to send the case backfor a re-hearing before another Judge.
The arrangement under which a gentleman practising as 'proctoralso from time to time acts as District Judge, when the DistrictJudge i6 absent on leave, is no doubt a very common thing, andit is one to which objection cannot be taken, but where a gentlemanpractising at the bar regularly acts from time to time duringabsences of the District Judge at other places, it is particularlyimportant that the arrangement should be very carefully watched.In such cases the District Judge is liable to stumble into a casein which he has himself advised one of the parties, and, when thathappens, I do not think that he should proceed with the casewithout getting the express consent of both parties. No doubtin this case what I have referred to was accidental, and the proctorsengaged would thoroughly understand the position, but this wouldnot necessarily be so in the case of their clients. It is importantthat the Administration of justice should be free from even thesuggestion of suspicion, and, without- casting any reflection on thelearned District Judge who tried the case, I think it should bewell that it should go back for a re-trial.
I would, therefore, set aside the decree pro forma, and remit thecase.
Costs of this appeal to be costs in the cause.
Schneider J.—I agree.
DINGIRI MAHATMAYA v. MUDIYANSE et al