PUNCHIRALA v. PUNCHI BANDA.D. C., Kegalla, 856.
Evidence—Action for damages for injury to person—Depositions of wit-nesses at trial of defendant for such injury—Evidence Ordinance,1895,88.3,33, and 58—Civil Procedure Code, as. 167,168, and 169—Pleas of provocation and justification—Retorsion of injury.
A District Judge cannot, even with the consent of parties, departfrom the provisions of the law as to how evidence should be givenand recorded, and the judgment of the Court must be based uponfacts declared by law to be relevant and duly proved; and so where, inan action for damages for injury to the person, each party, withoutobjection by the other, put in evidence depositions of witnesses atthe trial of the defendant for such injury—Held, that the Court waswrong in accepting such depositions as evidence in the case.
In an action for compensation for injury done, if the defendant’sconduct was not an excessive retorsion of the injury he received, heis not liable to pay compensation.
'J'HE facts of the case sufficiently appear in the judgment.
Rudra, for appellant.Jayawardene, for respondent.
16th September, 1897. Withers, J.—
This is an action to recover damages for injury to the person. Theinjury was alleged to be a severe one. In the answer it was deniedthat the inj ury was a severe one, and it was further pleaded thatthe injury was provoked. The evidence of the defendant, who wasexamined as a witness in his own behalf, shows that he intended toplead justification as well as provocation—defences which are wellknown in the Roman-Dutch Law to actions of" this kind.
No issues were settled by the Judge, and the procedure adoptedhas no precedent that I am aware of. It is qiute ingenious in itsdeparture from the law of the Code and any law before that.
After the examination of the plaintiff as a witness in his ownbehalf and that of an unimportant witness on his side, the plaintiff’sproctor put in copies of the depositions of witnesses (including one ofthe plaintiff) taken at the trial of the defendant on a charge ofvoluntarily causing grievous hurt to the plaintiff. Having putthese copies in without objection by the other side the plaintiff’sproctor closed his case. The defendant was then put into the box,and after he had given evidence his advocate put in copies of thedepositions of the witnesses for the defence in the criminal trial.Upon this material the District Judge gave the :cut appealed
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That these depositions were not per ae evidence of the assault,and the circumstances under which it was committed, no onecontested.
" Evidence,” according to the 3rd section of our Evidence Act,“ means and includes all statements which the Court permits or“ requires to be made by witnesses in relation to matters of fact“ under inquiry,” and such statements are called oral evidence.
The 167th and 168th sections of the Civil Procedure Code requirethat the evidence of the witnesses shall be given orally on oath oraffirmation in open Court in the presence and under the personaldirection and superintendence of the Judge. By section 169 ofthat Code the evidence of the witnesses shall be taken down inwriting in the English language by the Judge.
These rules were plainly violated.
There are of course well known exceptions to this rule.
By section 33 of the Ceylon' Evidence Ordinance of 1895 it isenacted that “ evidence given by a witness in a judicial proceeding“ *** is relevant for the purpose of proving in a sub-
“ sequent *** proceeding *** the truth of the
“ facts which it states when the witness is dead or cannot be found,
" or is incapable of giving evidence, or is kept out of the way by“ the adverse party, or if bis presence cannot be obtained without“ an amount of delay or expense which under the circumstances
of the case the Court considers unreasonable, provided that the“ proceeding was between the same parties, &c., and that the“ questions in issue were substantially the same.” Now there wasnothing to show that it was impossible or inexpedient to summonany of these witnesses before the Court to be examined in thejlresence of the District Judge, and even if it was impossible orinexpedient the questions at issue were not substantially the same.Provocation and justification were matters for the defence in thecriminal court. The primary question at issue in the criminalproceedings was the question. Did the accused voluntarily causegrievous hurt to the prosecutor ?
Further, the judgment in the criminal case would be no evidenceof that issue in the civil case. Now, is such evidence admissibleby reason that both parties w'aived objection to it being received ?
I think this question ought to be answered in the negative. TheJudges of our Courts have the conduct of civil cases from the t’methat the parties submit themselves to the jurisdiction of their courts.It is the Court that settles the issues to be tried and determined ;it is the Court that amends the pleadings. The Court mayrequire the proof of facts admitted by the parties (see section
September l<i.Withers, .1.
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September 16.Withers, J.
68 of the Evidence Ordinance). The Court may for grave causepermit a departure from the course of trial prescribed in the CivilProcedure Code (section 166).
The Judge has large powers of examining parties and witnessesand ordering the production of documents, yet for all that thejudgment of the Court must be based upon facts declared by thisOrdinance to be relevant and duly proved (see section 165 of theEvidence Ordinance).
This being the position of Judges in Ceylon it is to the publicinterest that even in civil proceedings they should be watchfulof the way the Law of Evidence is administered.
To them the words of C. B. Pollock in his judgment in the caseof Barbat v. Allen and another (21 L. J. Ex. p. 155) may well beapplied “ If a Judge is bound to receive evidence because the“ parties agree to it, I do not see why if they were to agree that a“ witness should give his evidence unsworn, or that a person might“ be examined who has no sense of religion, those persons might“ not be examined. But the consent of parties will not entitle“ them to have an affidavit read which is not inadmissible. I“ shall always insist on testimony coming i the form in which it is“ legally binding, and shall not receive any other even with consent
“I therefore think that the Judge is at least in his discretion
“ entitled to insist that the law of England shall be administered,“ and when any departure from it is proposed to say to the parties“ ‘ You shall not make a law for yourself.’ ” All this notwithstand-ing we have to consider the question whether we should leave thejudgment undisturbed or send the case back for a new trial.
Section 167 of the Ceylon Evidence Ordinance of 1895 enacts :—“ The improper admission or rejection of evidence shall not be“ ground of itself for a new trial or reversal of any decision in any“ case if it shall appear to the Court before which such objection“ is raised (as it was before us by the appellant’s counsel) that“ independently of the evidence objected to and admitted there'• was sufficient evidence to justify the decision.”
Putting aside the evidence improperly admitted there was onlythe evidence of the plaintiff and the defendant. The defendantadmitted having struck the plaintiff with the butt of his gun, buthe swore to circumstances which, if believed, satisfied the pleas ofprovocation and justification. It cannot be said in this case, itseems to me, there was sufficient evidence to justify the decision.Besides, the Judge found that the defendant had received greatprovocation from the plaintiff. If the defendant’s conduct wasnot an excessive retorsion of the injury he received, he is not liableto pay compensation.
“ Nam ut in realibus, sic et in verbalibus, quad quia ad sui defen-“ sionem dixerit, id jure dixisse existimatur. Cui non absimile si Septembu-16.“ quis lacessitus injuriamretorserit, cum compensates eomodovideantur Withers, J.“ injuries, quatenus civiliier agi potuisset, et retorsio injuries non“ habeat injuriam, dum non est injuria, pati quad feceris, ac ignas-“ cendum est ei, qui voluit se ulcisci provocatus. Sic ut hie queedam‘‘fit injurin’, cum injuria, delicti cum delicto pari compensationVoet 47,10, 20.
The Judge did not find what constituted the great provocation,so that we are unable to decide whether the retorsio injuries was acomplete answer to the claim, or only went in mitigation of damages.
In my opinion the case must go back for a new trial. There will beno order as to costs.
The issues to be tried in the Court below should be these :—
How did the defendant injure the plaintiff ?
Was the injury committed in defence of an attack on hisperson or property, or on the person or property of his brother,so as to be justified in law ? If so, the defendant will havejudgment.
Did the plaintiff wilfully provoke the defendant’s act, andwas the act in excess of the provocation ? If it was not in excess,the defendant will have judgment.
If the retorsion of injury was excessive, what compensationshould be adjudged ?
If the Judge considers there should be no mitigation of damages,he will decide what the full compensation should be, having regardto all the circumstances of the case.
I agree, and wotild add only this, that very possibly the irregu-larity would not have occurred if the chief clerk of the Court hadregarded, as I think he should have done, the deposition of eachwitness before the Police Magistrate to be a separate exhibit in itself,requiring a separate Re. l-50 stamp, instead of allowing thedepositions of three witnesses for the defence to be received on onestamp and five witnesses for the plaintiff on another.
Possibly had the District Judge been also the Police Magistratewho heard the witnesses and recorded their depositions on thecriminal charge, there might have been some reason for thisdeparture, especially if the civil trial had followed so hard uponthe criminal investigation that the Judge retained a full recollec-tion of the witnesses when under examination ; and one can see inthis how expedient it may sometimes be to make part of thecriminal punishment in such cases a fine which can be applied in
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compensation and avert civil litigation of the future. But even then,unless the Magistrate had such a special intent from the first, it iseasy to see that the depositions necessary to decide the criminalissue might not be full enough to reach all those matters required todetermine the fact and extent of the civil liability, and thus wherecompensation was not made at the first by such procedure, but wassought subsequently as here, it would be necessary that the witnessesshould be examined de novo.
PUNCHIRALA v. PUNCHI BANDA