CANNON J.—Ramapillai v. Zavier.
1946Present: Cannon J.RAMAPTTXAT, Petitioner, and ZAVIER et al., Respondents.
Application for Revision in C. R. Jaffna, 16,674.
Postponement—Absence of witness on trial date—Application for postponementrefused—Right of appeal of aggrieved party-—Duty of party affectedTto have called what evidence was available.
Where, on the date of trial, an application for adjournment made bya party on the ground that a material witness was absent was refusedby Court—
Meld, that the party affected should nevertheless have proceeded tocall such evidence as was available to him.
Meld, further, that the proper remedy against the order of Court wasby way of appeal.
PPLICATION for revision of an order of the Commissioner ofRequests of Jaffna.
V. K. Kandasamy, for the plaintiff, petitioner.
O.Thomas, for the defendants, respondents.
May 17, 1946. Cannon J.—
This was an action for Rs. 300 brokerage, and paragraph 2 of theplaint stated that the defendants made a contract with the plaintiffthrough their agent, S. M. Aboobucker, Proctor of Jaffna. On December17, 1945, the trial was fixed to take place on January 28, 1946. On thelatter date Counsel for the plaintiff asked for an adjournment becausea material witness for the plaintiff had not been served with summonsto attend. The Commissioner refused the application which was opposed.Counsel for the plaintiff thereupon stated that it was not possible for himto conduct his case without the evidence of Mr.- Aboobucker, whom hedescribed as his' chief witness and that he was not calling any evidence.The Commissioner therefore dismissed the action with costs and in hisreasons stated that the defendant had come to Jaffna all the way fromColombo and that the plaintiff had not applied for a summons onMr. Aboobucker until January 19, 1946. On January 25, 1946, the
CANNON J.—Ramapillai v. Zavier.
Fiscal reported that the summons could not be served. The Com-missioner proceeds “ Constant postponements on grounds like theseonly mean that the civil administration of the Court cannot be effectivelycarried on. I therefore refused the date asked for which the Proctorfor the plaintiff appeared to think he was entitled to get if he paid costs.If I accede to that proposition a case can be indefinitely postponedfrom coming to trial. The burden is on the plaintiff to prove his case.He has refused to call evidence. I have therefore no alternative butto dismiss his action with costs ”.
For the petitioner it is submitted that the Commissioner should havegranted the application for a postponement on terms. The mattercomes before this Court by way of revision. Now, it is a fact that in theinterval between December 17 and January 28, the Courts ChristmasVacation took place. It is also a feet that Mr. Aboobucker lives andpractises at Jaffna, and Mr. Kandasamy urges that those facts shouldhave moved the Commissioner to grant the application for a postpone-ment. It is to be noted, however, that Counsel for the plaintiff declinedto call any evidence and it has been said in this Court on a number ofoccasions that when an application for a postponement is refused theparty affected should nevertheless proceed to call what evidence isavailable to him, one reason being that after this evidence is recordedit may emerge in a stronger way to the tribunal that a postponementshould be granted. In this case the record does not satisfy me thatMr. Aboobucker was the plaintiff’s chief witness or that the case couldnot have been proved without his presence, for I notice in the list ofdocuments and witnesses filed bj- the plaintiff the following :—“ Plaintiffto produce letters, post cards and telegrams sent by defendant
I would adopt in deciding this case the language of Layard C.J. inFernando v. Andiris1 : “There was no material before the DistrictCourt, neither is there any material before this Court, to show that theevidence of the plaintiff was essentially necessary for the purpose of theplaintiff continuing this action. It may be that the plaintiff was not in aposition to establish his case by other evidence than that of the plaintiff.After the District Judge had refused to grant a postponement theplaintiff’s Proctor should have called such evidence as was available onbehalf of the plaintiff and should not have declined to call any evidence.There being no evidence, the order of the District Judge dismissing theplaintiff’s claim is right. It would never do for this Court to encourageparties in the Court below to decline to proceed with a case simply onthe ground that the District Judge had refused to grant a postponement.I am not satisfied that the plaintiff’s evidence was material for thesuccessful conduct of the case by his legal adviser ’’. But apart from thisquestion as to whether the Commissioner exercised his discretion properly,the fact remains that this case should have been brought before thisCourt by way of appeal and again the above-mentioned volume of theAppeal Court Reports comes to the assistance of the respondent, for inthe case of GunawardLene v. Orr at page 172 Hutchinson C.J. says—“ I see an expression of opinion by Acting Justices Pereira and Grenierin 2 Bal. p. 86, which I think I ought to follow. The effect of it is that the
1 (1005) 2 A. C. R. 141.
The King n. Leighton.
practice is not to exercise the power of revision under section 753 wherethe remedy of appeal is open This practice is subject to the quali-fication that the Court would nevertheless deal with the matter in revi-sion in an exceptional case. The case which is now being considered doesnot appear to me to have any matter of such exceptional merit as towarrant a departure from the practice of the Court.
For both the above reasons the application is dismissed with costs.
RAMAPILLAI, Petitioner, and ZAVIER et al , Respondents