Sri Lanka Law Reports (1978-79) 2 S. L. R
Grindlays Bank Ltd. v. James
COVPT OF APPEAL.
RATWATTE, J. AND ABDUL CAPER, J.
C.A. t'S.C.) 23/79—P..C., COLOMBO c/1373/M.
JULY 16, 1979.
Costs—Claim by successful via intiff for inclusion in bill of costs oftravelling expenses from abroad—Plaintiff an essential witness—Discre-tion of trial judge to decide such question—When will Appellate Courtinterfere—Civil Procedure Code, section 208.
The plea taken by the defendant and an issue raised on its behalf at thetrial made it necessary that the plaintiff gave evidence. The plaintiffaccordingly was called as a witness and she had to travel to Sri Lankafrom Australia for this purpose. After trial judgment was given for theplaintiff as prayed for and in the hill of costs submitted by the plaintifftravelling expenses of the plaintiff from Australia were included. Thedefendant resisted this but after inquiry the learned District Judge heldthat the plaintiff was entitled to include travelling expenses in the billof costs. The defendant appealed and it was submitted on his behalfthat section 208 of the Civil Procedure Code does not provide for a partyto the action claiming his or her travelling expenses.
The learned District Judge had exercised his discretion correctly andthe Appeal Court would not interfere. The plaintiff was an essentialwitness by reason of the plea taken in defence. The language ofsection 208 was wide enough to cover the inclusion of these expenses inthe bill of costs.
Grindlays Bank Lid. v. James (Abdul Cader, J.)
Cases referred to
Langley v. D’Arcy. (1930) A.I.R.. (Bombay) 24.
Howes v. Barbara, (1856) Q.B. 591.
Ansett v. Marshal and another, 22 Q. B, 119.
APPEAL from the District Court, Colombo.
E. S. Amerasinghe, with 1. S. de Silva and Miss D. Guniyangoda, for thedefendant-petitioner.
K. Kanag lswaran, with K. V, Mahenthiran, for the plaintiff-respondent.
Cur. adv. vult.
August 10, 1979.
ABDUL CADER, J.
The plaintiff opened an account with the defendant-bank anddeposited Rs. 15,00-0 and it was agreed that the defendant wouldpay the said sum or any portion thereof to the plaintiff or to theorder of the plaintiff. She filed plaint alleging that on 1st June,1973, the defendant wrongfully paid out the said sum of Rs. 15,000without the authority or the order of the plaintiff. In the answer,the defendant pleaded that the said sum of Rs. 15,000 was paidto Mr. Steve Joachim on authority from the plaintiff. In theannexure to the answer, it is stated that Mr. C. P. Gunawardenaof the defendant-bank would testify to this fact.
On 18.3.77 admissions and issues were recorded and issue No. 6is as follows : —
“ 6: Did Joachim receive the said amount on the authorityof the plaintiff in view' of the action of the plaintiff ? ”
Attorney for the defendant then narrated the particularsrelating to issue No. 6. (1) The plaintiff had come with Joachimat the time of depositing the money and had said that authoritywas given to him to act as the agent of the plaintiff. (2) Theplaintiff stated to the defendant-bank that she had given Joachimthe authority to remit money abroad and that he would bringand produce the necessary documents. The Attorney for thedefendent agreed to furnish the name of the Bank officer withintwo weeks before the trial. The Attorney for the plaintiff movedthat the case be fixed for August “ as the plaintiff is away fromSri Lanka.” Thereby notice was given to the defendant that theplaintiff was not in the Island. In the caption to the plaint, theplaintiff’s address is given as West Australia. Plaintiff gareevidence at the trial and judgment was delivered on 9.6.78,giving the plaintiff judgment as prayed for.
Bill of costs was submitted by the plaintiff and thereafteramended to include travelling expenses of the plaintiff amountingto Rs. 13,261.80. The defendant resisted this. The plaintiff urged
Sri Lanka Law Reports (1978-79) 2 S. L. R,
that the plaintiff had to attend Court to give evidence personallybecause the defendant put up the plea that plaintiff had “ comewith Joachim at the time the money was deposited” and statedthat authority was given to him to act as agent of the plaintiff,and it was, therefore, necessary for the plaintiff to get into thewitness box and contradict Gunawardena, who was to giveevidence as stated by the defendant. The plaintiff did giveevidence at the trial. Gunawardena also gave evidence for thedefendant and the Judge had said of that evidence as follows : —
“ Certainly, so far as Mr. Gunawardena is concerned andIn; is the only officer from the Bank who gave evidence fortile defendant, he is not aware of any officer of the Bank towhom such statement had been made.”
The Registrar allowed the travelling expenses of Rs. 13,261.80as part of costs payable by the defendant against which thedefendant appealed to the District Judge. The District Judge byhis order dated 16.3.79 stated as follows : —
“ If a party is present in Court without any necessity or ifa party has come to Court to see’whether his Attorney iscarrying out bis duties properly, then, there is no provisionfor him to claim the expenses incurred by him to come toCourt. But according to the facts in this case, the plaintiff isan essential witness. Other than her, no other person couldgive evidence because of the answer produced by thedefendant. Therefore, my conclusion is that the plaintiff inthis case has a justifiable right to include his travellingexpenses of Rs. 13,261.80 in the bill of costs. ”
It is against this order that the defendant has appealed.
At the hearing before us, counsel raised the same objectionthat he raised before the District Judge, namely, that section 208of the Civil Procedure Code does not provide for a party to theaction claiming his or her travelling expenses. After counsel forthe plaintiff drew our attention to the case of Langley v. D’Arcy
, counsel for defendant anpeared to concede that a party wouldbe entitled to travelling expenses but only if his evidence wasnecessary and material for the purpose of his case. In that case,reference was made to 0.65 r. 27 of the Rules of the SupremeCourt of India : —
“As to evidence, such just and reasonable charges andexpenses as appear to have been properly' incurred inprocuring evidence and the attendance of witnesses are tobe allowed. ”
Grindiays Bank Lid. v. James (Abdul Cader, J.)
The words “ procuring evidence ” was considered sufficient toextend to the evidence of the party himself, though in commonusage procuring evidence would normally refer to witnesses whohave been procured by the party concerned. But in our Code, thefollowing additional provision occurs—
“ and all other expenses of procuring and adducing
necessary evidence. ”
So that in addition to “ procuring ” the word “ adduce ”, too,occurs. In Howes v. Barbara (2) Lord Campbell C. J. stated : —
“ No doubt, the practice of allowing costs to the successfulparty in respect of his having been a witness for himselfmay lead to inconvenient consequences ; but we do not thinkwe can lay down a rule that such costs can never be allowed-The party is now by law admitted as witness; he may be amaterial and necessary witness ; ”
It would suffice to point out that in some of the cases cited inthe Indian case referred to earlier, costs were allowed to a partyin much less favourable circumstances than in the case beforeus. We are satisfied that a party to the action would be entitledto travelling expenses where the evidence of that party wasnecessary and proper.
One principle that courts of appeal have consistently followedboth in England and India has been set down in the Indiancase: —
“ It is true, as pointed out in some of the cases that thequestion as to how far attendance of a witness was necessaryand material, is one for the Master to decide. But that dis-cretion must be exercised in a fair and reasonable wayaccording to the usual and established practice and allowancein respect of such matters. Otherwise, the Court or a Judgewill interfere and review the discretion of the Master whohas not so exercised it. If the Court is satisfied that theMaster has so exercised his discretion as to produce injus-tice or thrown an unreasonable burden on a party, I thinkthe Court is always disposed to interfere. ”
With respect, we adopt this principle as true and proper. Thissame principle was expressed in the case of Howes v. Barbara
. In that case, the dictum of Lord Lyndhurst C. B. wasadopted: —
“It is frequently very desirable that a party should beable to have his witness examined viva voce. It appears tous, that the allowance of such witnesses is still a matter inthe discretion of the Master, ”
Sri Lanka Law Reports (1978-79) 2 S.L.R,
In the case of Ansett v. Marshall and Another (3), Crompton J.stated as follows : —
“If the Master acts on a wrong principle, the Court willinterfere, but it will not review the mere exercise of hisdiscretion. ”
And he went on to say : —
“ Whether the plaintiff, in this instance, ought to havebeen examined on interrogatories is a question for theMaster’s consideration. ”
The question that we have to decide in this, case is whether theDistrict Judge has exercised his discretion correctly. We answerthis question in the affirmative. The District Judge has said, asI have quoted earlier, “ According to the facts in this case, theplaintiff is an essential witness. ” We are in agreement with theview expressed by the learned District Judge. Issue No. 6 raisedby the defendant put in issue that Joachim was an agent of theplaintiff and in clarification, the Attorney for the defendant wenton to say that the plaintiff had gone with Joachim at the timeof depositing the money and had stated that authority wasgiven to him to act as the agent of the plaintiff. It became, there-fore, necessary for the plaintiff to get into the witness box andgive evidence that she did not give any such authority toJoachim in the presence of any officer of the Bank.
Counsel for the defendant urged that this evidence wouldhave become necessary only after Gunawardena had givenevidence that the plaintiff had given such authority. When thedefendant framed this issue and in addition named the particularofficer who would give that evidence, the plaintiff was entitledto presume that the defendant had that evidence in its possessionand, therefore, the plaintiff was obliged to contradict it by givingevidence herself. Having created a situation of this nature, it isnot open now to the defendant to state that since Gunawardenadid not give the evidence expected of him, there was no needfor the plaintiff to have given evidence herself. The defendantgave cause for these travelling expenses to be incurred by theplaintiff for what now appears to be no reason and it would beunjustifiable and improper for the plaintiff to be called upon tobear these expenses which is, in fact, more than the decretalamount.
It was brought to the knowledge of the defendant that theplaintiff was in Australia when the Attorney for the plaintiffmoved that the case be fixed for August “ as the plaintiff is away
CAShanmugasunderam v. Mohamed269
from Sri Lanka. ” We are of the opinion that the learned DistrictJudge has exercised his discretion very properly and there is noreason to interfere with his order.
Counsel for the defendant then urged that the plaintiff’s Coun-sel should have awaited the evidence of the defendant who, infact, had to prove the agency before the plaintiff would be calledupon to rebut it and if such evidence was placed, then, he couldhave moved Court for a postponement to get down the plaintifffrom Australia to give evidence. There is no reason for the plain-tiff to have awaited such a contingency; she could not haveknown that Gunawardena would give evidence contrary to whatwas expected of him by the defendant; nor could she have takenfor granted that the Court would grant an adjournment underthese circumstances. It is not unknown that in such circumstan-ces, the defendant would have objected to a postponement onthe ground that the plaintiff should have been ready at the verycommencement of the trial by being present in Court, havingknown in advance that the defendant had raised issue No. 6 andthat the plaintiff had to meet that evidence-
Counsel for the defendant also complained that there had beenno investigation whether the plaintiff could not have come toSri Lanka by a cheaper mode of transport. This is a matterwhich the defendant should have urged before the taxing officer,which the defendant had failed to do at the appropriate stage.
We, therefore, dismiss the appeal with costs.
RATWATTE, J.—I agree.Appeal dismissed.
Grindlays Bank Ltd v. James