CANNON JS. Umma v. Mahomed.
1946Present: Soercsz S.P.J and Cannon J.S.UMMA, Appellant, and MOHAMED, Respondent.
108—D.C. Qalle, 1312.
Summary procedure—Oral evidence, given by petitioner•—Right of respondent togive oral evidence—Civil Procedure Code, s. 384.
Where, in an application of summary procedure, the Court permitsthe petitioner, under section 384 of the Civil Procedure Code, to giveoral evidence it cannot properly refuse the respondent the same privilegeor the right, for the purpose of supplementing his evidence, to cross-examine the petitioner.
PPEAL from a judgment of the District Judge of Qalle.
N. K. Choksy (with him Izadeen Ismail), for the respondent, appellant.
N. Nadarajah, K.C. (with him H. W. Jayawardene), for the petitioner,respondent.
Cur. adv. wit.
February 13, 1946. Cannon J.—
The petitioner applied to be appointed curator of the estate of his minorbrothers and sisters, the first four respondents; and for the fifthrespondent, their sister, to be appointed guardian of. the minors. Thesixth respondent, who is the widowed mother of them all, opposed theapplication, alleging that the petitioner was not a.suitable person to beappointed curator. Affidavit evidence was tendered by both sides, andthe petitioner gave oral evidence. In granting the petitioner’s applicationthe acting District Judge said :
“ The sixth respondent opposes this application but all the othersare in favour of the petitioner being appointed curator. The sixth1 42 N. L. P., p. 326.
CANNON .T.—S. Umma v. Mohamed.
respondent appeared to me to be a very domineering sort of lady,devoid of all tactfulness and far from conciliatory in her mannertowards the children.”
The sixth respondent, however, was not permitted by the actingDistriot Judge to cross-examine the petitioner about certain documentsrelevant to the petitioner’s eligibility. The reason for this ruling by theacting IKstrict Judge is not clear ; it was not suggested that the docu-ments were irrelevant. The acting District Judge, commenting on thispart of the proceedings, says,
“ At this stage (during the cross-examination of the petitionerby the sixth respondent’s Counsel) I have heard from Counsel on bothsides a good many of the things that have got to be urged in favour ofeach party and there are also the affidavits before me. I will thereforemake my order with regard to the appointment of a curator and of theguardian of these minors.
Mr. Abeywardena states that the cross-examination of this witnessis not yet finished and that he has a number of other documents to beput forward to the petitioner to show that he is not a fit and properperson to be appointed curator.
Mr. Abeywardena wants to call the sixth respondent in support ofthe case. The Court does not think it necessary that she should becalled.
All the minor respondents are present in Court and all express theirwillingness to live with the eldest brother the petitioner on beingquestioned by Court.”
The departure from the rules of procedure forms the basis of an appealby the sixth respondent. The Judge has an undoubted right and dutyto stop cross-examination which is prolix or unduly prolonged or unfairor irrelevant. It does not, however, appear from the record that theacting District Judge stopped the cross-examination by the sixthrespondent’s Counsel for these or any other sufficient reason. Section 384of the Civil Procedure Code, which is referred to in Dassanaike v. Daasa-naike1 does not avail the respondents to this appeal, because the actingDistrict Judge, having allowed the petitioner to give oral evidence “ inorder that I may know something more of their difficulties and to ascertainthe kind of person he is ”, couid not properly refuse the sixth respondentthe same privilege. This failure to exercise his discretion judiciallybecomes more evident when one reads that without hearing the sixthrespondent in the witness-box the acting District Judge formed a personalopinion adverse to her. It oannot be said that the sixth respondenthas had a fair opportunity of putting her case.
I would therefore allow the appeal and direct that the matter bereheard before another Judge, the costs of all the proceedings to be costsin the cause.
Soebtsz S.P.J.—I agree.
-» 22 C. L. Ree. 31.
S. UMMA, Appellant , and MOHAMED , Respondent