Stephen Fernando v. James Fernando
Present : Pulle J. and L. M. D. de Silva J.W. STEPHEN FERNANDO, Appellant', and W. JAMESFERNANDO, Respondent
S. C. 244—D. C. Colombo, 23,443
Postponement—Grant or refusal—Discretion of Court.
An order refusing or granting a postponement is a typical exercise ofdiscretionary power with which an appellate court would be slow to interfere.
iXPPEAL from a judgment of the District Court, Colombo.
S. W. Walpita, for the defendant appellant.
A. W. Gooneratne, with B. E. de Silva, for the plaintiff respondent.
Cur. adv. milt.
3?UI/LE J-—Stephen Fernando v. James Fernando
January 9, 1953. Puxle J.—<■
The appellant in this case is the defendant against whom judgmenthas been entered for the payment of Rs. 6,775, legal interest and costs.
The trial of the case was taken up on the 15th February, 1951, whenthe Proctor for the appellant tendered a medical certificate and appliedfor a postponement. The certificate which was dated the 15th February,1951, merely stated that the appellant was under “ treatment for acutegastritis ”. The certificate which was intended to be used as evidencein a court of law did not state specifically that the condition of the appel-lant was such as to render him unfit to attend court. The learned DistrictJudge declined to grant a postponement and having heard the evidenceadduced he entered judgment for the plaintiff as prayed for but reservedto the defendant, with the consent of the plaintiff, the right to bring aseparate action upon the claim in reconvention.
It is argued in appeal that the Judge erred in refusing to grant a post-ponement. Now an order refusing or granting a postponement is atypical exercise of a discretionary power with which an appellate courtwould be slow to interfere. In the case of Maxwell v. Keun 1 Atkin L.J.said at page 653,
“ The other point that was made by the defendants was that this wasa discretionary order, and that the Court of Appeal ought not to interferewith the discretion of the learned Judge. I quite agree the Court ofAppeal ought to be very slow indeed to interfere with the discretion ofthe learned Judge on such a question as an adjournment of a trial, andit very seldom does do so ; but, on the other hand, if it appears that theresult of the order made below is to defeat the rights of the partiesaltogether, and to do that which the Court of Appeal is satisfied wouldbe an injustice to one or other of the parties, then the Court haspower to review such an order, and it is, to my mind, its duty to do so.”Other cases on this subject are reviewed by the Court of Appeal inDick v. Piller 2.
In his order the learned Judge stated his reasons as follows :—
It (the certificate) does not even say that the defendant is at presentsuffering from acute gastritis, but only says he is under treatmentfor gastritis. It may be that he is now not so bad as he was ’whenhe first started treatment. I refuse the application for a date. ”
We are unable to say that the Judge exercised his discretion wronglyin refusing to grant a postponement. It is a matter of common know-ledge in this country that medical certificates are procured with theobject of delaying creditors especially in cases where the party applyingfor a postponement is remiss in getting ready for trial or feels that hisdefence has little chance of success. In these circumstances the Judgewas perfectly right in subjecting the certificate to a strict scrutiny.
The appeal is dismissed with costs.
L. M. D. i)E Silva J.—I agree.Appeal dismissed.
1 (1928) 1 K. B. 615.* (1913) 1 All E. R. 627.
W. STEPHEN FERNANDO, Appellant, and W. JAMES FERNANDO, Respondent
Stephen Fernando v. James Fernando