SWAN J.—Chelvanayakam v. Natesan
1953Present : Swan J.
S. J. V. CHELVANAYAKAM, Petitioner, and S. NATESAN,Respondent
Election Petition No. 17 of 1952, Kankesanthurai
Election Petition—-Summons to produce a document—Date when witness should appear—Givil Procedure Code, ss. 121, 126, 127—Ceylon (Parliamentary Elections)Order in Council, 1946, s. 78 (3).
The power conferred by section 78 (3) of the Parliamentary Elections Orderin Council on an Election Judge to summon or compel the attendance ofwitnesses is not greater than that of a District Judge. Section 121 of the CivilProcedure Code is, therefore, applicable. Accordingly, an Election Judgehas no power to summon a, witness to produce a document on any date otherthan at the hearing of the election petition.
Application for summons on a witness to produce a document inElection Petition No. 17 of 1952, Kankesanthurai.
S. Barr Kumaralculasinghe, with A. Vythilingam and A nanda de Silva,
for the petitioner.-
V. Perera, Q.O., with G. E. Ohitty, C. C. Rasaratnam, and N.
Nadarasa, for the respondent.•
E. B. Wikramanayake, Q.G., with S. Sharvananda, for the proprietorsand manager of Thirumakal Press.
Cur. adv. vult.
March 31, 1953. Swan J.—
This inquiry was occasioned as the result of an application made bythe petitioner’s proctor on February 16, 1953, for summons on theProprietors and Manager of the Thirumakal Press, Chunnakam, toproduce certain documents said to be now in their hands on a date to befixed by Court.
SWAN J.—Ohelvanayakam v. Natesan
Mr. Wikramanayake appearing for the parties on. whom summonswas asked said that he had cause to show. I intimated to him that hewould be heard after I decided (1) whether I had the power to summona witness to produce a document at any date other than at the hearing,and (2) if T had the power or the discretion to do so whether I shouldgrant the present application or not.
Mr. Perera’s contention in brief is that I have no power or authoritywhatsoever to issue summons on a witness to appear or to produce adocument except at the trial.
Section 78 (3) of the Order in Council sets out that
“ l or the purpose of summoning or compelling the attendance ofwitnesses at the trial of an election petition, the election judge shallhave the same power, jurisdiction, and authority as are possessedand exercised by the judge of a District Court in the trial of a civilaction and witnesses shall be sworn in the same manner, as near ascircumstances will admit, as in the trial of such an action, and shall besubject to the same penalties for the giving of false evidence. ”
Mr. Kumarakulasinghe for the petitioner supports the applicationon two grounds, namely,
that my being appointed election judge to dispose of this petitiondoes not in any way detract from my powers as a judge of the SupremeCourt and that one of my inherent powers in that capacity is to makeany order that would ensure or promote the ends of justice. It is, hesubmits, in the interests of justice that an order such as the one askedfor should be made.
that even if my “ power, jurisdiction and authority ” in this behalfwere no more than those of a District Judge I should still grant theapplication because a District Judge could do so under the provisions-of the Civil Procedure Code.
shall first deal with the so called inherent powers of the SupremeCourt. What exactly those powers are nobody can say with any degreeof exactitude ; but that the judges of the Supreme Court have from timeto time stated that they were doing a certain thing in the exercise of theinherent powers invested in them there can be no doubt. Section 78 (3)of the Order in Council, however, does not seem to suggest that an electionjudge has in the matter of summoning or compelling the attendance ofwitnesses at the trial of an election petition any greater power, jurisdictionor authority than possessed and exercised by a District Judge in thetrial of a civil action.
shall now examine the second submission put forward on behalfof the petitioner, namely, that a District Judge can summon a witness toattend or t$> produce a document on any date other than a date of trial.This contention is based upon Section 121 of the Civil Procedure Codewhich provides :—-
“ The parties may, after the summons has been delivered for serviceon the defendant, obtain, on application to the court? or to such officeras the court appoints in that behalf, before the day fixed for the hearing,.
SWAN J.—Chelvanayakam v. Natesan
summonses to persons whose attendance is required either to giveevidence or to produce documents. A list of witnesses shalh be filedin court by the party applying for such summonses, after notice to theother side, and within such time before the trial as the Judge shallconsider reasonable, or at any time before the trial with the consentof the other side appearing on the face of such list.” '
Mr. Kumarakulasinghe contends that inasmuch as this (Lection doesnot specify the date on which the witness is required to attend or toproduce documents a District Judge has a discretion in the matter—•he can summon a witness to attend or produce a document at any timehis presence is necessary or desirable. I do not think that one canreasonably draw this inference from the omission to state in Section 121.to give evidence or to produce documents at the hearing. Apparentlythe compilers of the Civil Procedure Code thought it unnecessary to usethe words “ at the hearing ”. To me it seems inconceivable that awitness could be required to give evidence or to produce a documentexcept at the hearing. Nor is there anything in Sections 126 and 127or in the form of summons (Schedule II, No. 16) that would warrantthe construction which Mr. Kumarakulasinghe seeks to put on Section121.
Undoubtedly a District Judge has power to make order for discovery,Inspection, production, impounding and return of documents. Thereis special provision in the Civil Procedure Code for that purpose. Butthose sections only apply to parties to the action. There is also provisionfor evidence to be taken de bene esse and in the course of such evidence awitness may produce or be required to produce a document in his-possession. But none of these sections has any bearing on the presentappli cation.
I hold that under Section 78 (3) of the Order in Council I have no-power, jurisdiction or authority to allow the petitioner’s application.
I will now consider the application in the light of the provision madeIn Section 86 (2) of the Order in Council which sets out that
“ If any matter of procedure or practice on an election petition shallarise which is not provided for by this Order or by such rules or byany Act of Parliament, the procedure or practice followed in Englandon the same matter shall, so far as it is not inconsistent with this Orderor any such rules or Act of Parliament and is suitable for applicationto the Island, be followed and shall have effect. ”
No case or instance has been cited of a similar application havingBeen made and allowed in England.
The application is refused. The petitioner will pay the respondent-the costs of this inquiry but those costs will not be taxed nor will•execution be levied in respect thereof till the final determination of the•election trial.c
S. J. V. CHELVANAYAKAM , Petitioner, and S. NATESAN, Respondent