Sri Lanka Law Reports
[1993) 2 Sri L.R.
COURT OF APPEALPALAKINDNAR, J. ANDSENANAYAKE, J.
CA NO. 838/82 (F)
MAY 15, 1991.
Documents – Duty to give documents produced in evidence a distinguishing mark- Duty of court to retain marked documents.
There is a duty on Court to take the documents tendered and marked at thetrial to its custody and keep them filed of record. Documents marked in evidencebecome part of the record.
APPEAL from judgment of the District Judge of Kurunegala.
Rohan Sahabandu for 1st defendant-appellantK. Balapatabendi for plaintiff-respondent.
Cur. adv. vuit.
May 23, 1991.
The learned Counsel for the defendant-appellant submitted that thelearned District Judge had failed to consider the documents tenderedin evidence by the defendant-appellant. The defendant-appellant'sdocuments have not been tendered to Court. The learned DistrictJudge had not referred to the documents in his judgement nor hashe called for the documents that were led in evidence as D1 to D10.
There is force in the submission of the learned Counsel for thedefendant-appellant; section 114 subsection (2) of the Civil ProcedureCode reads as follows
"Every document so proved or admitted shall be endorsed withsome number or letter sufficient to identify it. The Judge shall thenmake an entry on the record to the effect that such documentwas proved against or admitted by the person against whom itsused and shall in such entry refer to such document by such
Podiralahamyv. Ran Banda (Senanayake, J.)
number or letter in such a way as to identify it with the documentso proved or admitted. The document shall then be filed as partof ttie record. "
There is a duty cast on the Court once the document is admittedand endorsed with a letter to identify it that the Court should havethe custody of the documents so marked and identified, though theoriginal Courts for convenience return the documents to Attorneysof the respective parties to tender the documents if necessary afterbeing stamped with an accurate list of the documents.
The provision of section 154 (3) reads as follows
" The document or writing being admitted in evidence the Court,after marking it with a distinguishing mark or letter by which itshould when necessary be ever after referred to throughout thetrial."
The explanation to the subsection reads as follows
" Whether the document is admitted or not it should be markedas soon as any witness makes a statement with regard to it andif not earlier marked on the account, it must at least be markedwhen the Court decides upon admitting it n.
In the instant case the defendant-appellant's documents D1 to D10were not only marked but also led in evidence without anyobjection from the opposing party. Those documents have beenadmitted ; therefore the Court in terms of the provisions of section114 (3) should have kept them in its custody. If for convenience theCourt had allowed the Attomey-at-Law to the defendant-appellant toretain the documents during the trial, there was a duty cast on thelearned District Judge to call for the documents.
The learned Counsel for the appellant cited an unreportedauthority CA/SC No. 63/76 (F) DC Kurunegala No. 357/L CA minutesof 25.10.1984, where Justice Atukorala observed : " we are of theview that documents once marked in evidence become part of therecord and should remain in the custody of Court. ’
Sri Lanka Law Reports
 2 Sri LR.
In the instant case the learned District Judge had allowed theAttorney-at-Law to retain the documents marked and produced inevidence at the trial. I am of the view that he cannot delegate hisobligations to others. There was a duty on Court to take thedocuments tendered and marked at the trial to its custody and keepthem filed of record but he had failed to do so. He even at thesubsequent stage had foiled to call for the documents with anaccurate list of the documents.
I am of the view that the learned District Judge had failed to givehis Judicial mind to the documents led in evidence by thedefendant-appellant.
For these reasons and in the interest of Justice, I set aside thejudgment and decree of the learned District Judge and send the caseback for trial de novo. The defendant-appellant will however paythe plaintiff-respondent a sum of Rs.1,050 as costs of the abortivetrial and as costs of the Appeal. The learned District Judge is directedto hear and dispose of this case as early as possible.
PALAKIDNAR, J. – I agree.
Judgment set aside
Case sent back tor trial de novo
PODIRALAHAMY v. RAN BANDA