Sri Lanka Law Reports
II982j l S L R
COURT OF APPEALN. PereraVs.D.L.H. Perera and Others
C. A. Application No. 1202/81- Rev. D.C. Mat ale No. 2726IL
Right of Counsel to frame, withdraw and reframe issues. Exjunction of remarks madehy Judges. Tests to he applied in ordinary expunctton of remarks.
Petitioner was Counsel for defendant. Issues were pleaded and accepted atcommencement of trial by D.J. without objection. Petitioner withdrew theissue of res judicata at the preliminary stages but when the evidence of Plaintiffwas led framed the issue once again and the Judge accepted it. In allowing thisissue Judge made the following statement.
“Defence Counsel had suggested and then withdrawn this issue. As such itappears that this Counsel is acting without responsibility. His conduct isunbecoming of an Attorney-at-Law of the Supreme Court. At this stage Courtdecides to report his conduct to the Supreme Court."
Petitioner prayed that this passage be expunged.
Held 1. The Judge was certainly not entitled to comment on the coursefollowed by the Petitioner as conduct without responsibility andunbecoming of an Attorney of the Supreme Court as it is within theprovince of a Counsel to conduct his case as is most advantageousto his client.
2. There was absolutely no need to animadvert on that conductespecially when the Judge had decided to accept the issue.
As Das. J. said.
“It has also been recognized that judicial pronouncements must be judicial innature, and should not normally depart from sobriety, moderation andreserve."
Application for revision of the order of the District Judge of Matale.
AbdulCadcr.J.&B.E. DeSilva, J.
R.P. Gunatilleke forthe PetitionerDC. Jayasooriya, S.S.C., for the Respondent.
Verera i Perera (Abdul Coder. J.)
The petitioner in this ease is an Attorney-at-Law. His complaint wasagainst the District Judge who had in the course of his order, allowingcertain issues raised at the trial, stated as follows:-
Translation:“This issue can be raised on the facts referred to in the answer.However, before the evidence was led in the ease, the defenceCounsel had suggested and then withdrawn this issue.f As such, itappears that this Counsel is acting without responsibility. Hisconduct is unbecoming for an Attornev-at-Law of the SupremeCourt. At this stage, the Court decides to report his conduct to theSupreme Court.
The petitioner prayed that this passage be expunged from the order as"it grieved me very much that the learned District Judge thought it fit tomake such comments which I did hot in any way merit."
The issues in question are as follows:-
“(I) Does the decree in case No. 2407 of the District Court ofMatale operate as res judicata between the parties?
(2) If so. can the plaintiff have and maintain this action ?“
These issues were pleaded and accepted at the commencement ol thetrial bv the District Judge without objection. On Counsel lor the plaintitlmoving Court to dispose of these issues preliminarily, the petitionerwithdrew these issues which was allowed by Court. When the plaintiff wasgiving evidence, the petitioner framed these issues once again which theJudge once again accepted. It is in the course of the order allowing theseissues the Judge made the comments complained against. There isnothing in the record to indicate that anything unpleasant happened or ofany other circumstances which warranted these comments by the Judge.
Deputy Solicitor-General appearing as amicus curiae tit our requestwondered whether the Court would wish to call for a report from theJudge as regards the circumstances under which he made thesecomments. We took the view that the petitioner should not be prejudiced:v obtnir mg additional material, and that he is entitled to an order on the
Sri Lanka Law Reports
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record as it now stands. The Judge has given a reason for his commentsand an order should be made on that reason alone. Besides, a report fromthe Judge may introduce contentious matters which might even compel anunnecessary inquiry.
Rodrigo, J. states as follows in C.A. (S.C.) Application No. 603/76(Minutes of 30.06.1980), Samarakkody vs. A.G. and others:
“The tests to be applied in considering the expunction of disparagingremarks against persons or authorities whose conduct comes in forconsideration before courts of law in cases to be decided by them, wereneatly summed up in this Court, speaking through S.K. Das, J. in State ofU P., v. Muhammed Nain (1964) 2 SCR 363 at p. 374-(A.l.R. 1964S.C.703 at p.. 707 – 1964 – 1 Cri. L.J. 549 at p. 594 thus:
Whether the party whose conduct is in question is before the.
court or has an opportunity of explaining or defending himself?
Whether there is evidence on record bearing on that conductjustifying the remarks; and
Whether it is necessary for the decision of the case, and asintegral part thereof, to animadvert on that conduct. It has alsobeen recognized that judicial pronouncements must be judicialin nature, and should not normally depart from sobriety,moderation and reserve.”
With respect, we adopt these tests and we find that the Judge’scomments against the petitioner are thoroughly unwarranted anduntenable under every one of these tests.
The Judge accepted the issues without protest and, therefore,gave no opportunity to the petitioner to explain his unusualconduct, which appears to have irked the Judge.
There is no evidence on record justifying the remarks. Theissues were pleaded and framed, withdrawn and reframed. It iswithin the province of a Counsel to conduct his case as is mostadvantageous to his client. When the petitioner found thatthere was an application for these 2 issues to be heardpreliminarily, he thought that a preliminary decision would notdispose of the action. When the plaintiff s evidence was placedbefore Court and objection was taken to his cross examination,he raised these issues once again so that he could question theplaintiff in respect of the case covered by the issues (videpetition-
Perera v. Perera (Abdul Coder, J.)
There can yet be other reasons for a Counsel's conduct. I canimagine a situation where Counsel takes the view that he cansucceed on merits without raising a plea of res judicata andlater decides to frame the issues when he finds that theplaintiff s evidence carried some conviction which might rpsuitin the plaintiff succeeding in the action. What motive promptsa Counsel to adopt an unusual procedure. Counsel knows best. and that is his exclusive province. Certainly, since it is theJudge who is ultimately responsible for the issues, he mayaccept or reject the issues. Taking into consideration the factsin this case, even without the reasons given by the petitioner,the Judge was certainly not entitled to comment on the coursefollowed by the petitioner as conduct without responsibilityand unbecoming of an Attorney of the Supreme Court.
There was absolutely no need “to animadvert on that conduct"especially when the Judge had decided to accept the issues. Iwould repeat the last part of thisclausc even as Rodrigo. J. did:
“Judicial pronouncements must be judicial in nature and shouldnot normally depart from sobriety, moderation and reserve."
This Court will not interfere with a decision made by the Judge to reportany matter to the Supreme Court, but wc cannot for that reason leaveintact the last line in this passage because that would vet be a reflection onthe petitioner. Therefore, we make order that the entire passage beexpunged from the record.
Wc understand from Counsel for the petitioner that the main trial hasbeen concluded in favour of the defendant for whom the petitionerappeared. It is to the credit of the learned District Judge that he did notpermit the facts in this petition to influence him in any manner, as regardshis decision on the merits of the case.
E. de Silva J.- I agree
A. N. Perera Vs. D. L. H. Perera and Others