Subramaniam and Another v. Ceylon Paper Sacks Ltd.
SUBRAMAN1AM AND ANOTHER
v.CEYLON PAPER SACKS LTD.
COURT OF APPEAL.
S. N. SILVA, J.
D. P. S. GOONESEKERA, J.
C.A.L.A. APPLICATION NO. 239/91OCTOBER 15 & 30, 1992, MARCH 02, 1993.
Civil Procedure – Evidence in rebuttal – Listing of witnesses – Civil ProcedureCode, sections 163, 121 (1) and 175 (1) – Reservation of right to lead rebuttalevidence.
This was an action for infringement of a patent. Plaint was filed on 01.07.1986.Issues were framed. In the issue the plaintiff assumed the burden of establishingthe validity of the patent. The defendants' issues were in effect the converseof the plaintiffs' main issue. Plaintiffs' case was closed on 21.06.1988 withoutany reservation to lead evidence in rebuttal. The defendants' case was also closed.There had been 34 dates of trial upto 04.12.1991 which was the last date onwhich proceedings were had. The plaintiffs filed their 7th list of additionalwitnesses dated 02.12.1991 one day before the last date of trial listing as a witness“Mervan Peiris of Colombo” neither a description nor the address of the witnesswas stated. The defendant on whom the list of witnesses was served on theday before the trial was given no indication as to what this witness was intendingto testify. On 04.12.1991 the District Judge refused the application of the Plaintiffto lead evidence in rebuttal by calling Mervan Peiris. Thereupon the Counselfor plaintiff closed his case. Plaintiffs then filed this application for leave to appeal,from the order refusing the application to lead evidence in rebuttal.
The question whether a party who begins a case should be permitted tocall evidence in rebuttal has to be decided primarily in relation to the proceedingshad in each case. There are two situations in which rebuttal evidence may bepermitted. They are :
Where there are several issues in the case and the burden of proving onlysome of them lie upon the party beginning and of the others on the opposingparty. In such a situation section 163 of the Civil Procedure Code provides thatthe party beginning may at his option adduce evidence-in-chief on the issueswhere the burden lay on him and reserve his right to lead rebuttal evidence inrespect of the issues where the burden lay on the opposing party.
Where the Court may in any event, in the interests of justice, permit theparty beginning to lead evidence in rebuttal.
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In situation (i) there is an element of a right in the party unlike situation (ii) whichis entirely at the discretion of the Court. However, even in situation (i) the judgehas a discretion in considering the particular issues raised by the respective partiesand the evidence hitherto adduced by the party beginning, to decide whetherthat party has the right that is claimed under section 163.
Per S. N. SILVA, J.
” (Section 163) manifestly embraces a situation where the respective issues aredistinct and are discernible as such. It does not readily apply in a situation wherethe respective issues overlap or where the issues raised by the opposing partyare the counter or negative of the issues raised by the party beginning. In suchsituation the party beginning cannot split his case into two, present part inevidence-in-chief and seek to confirm that part by taking a second bite of thesame cherry, under the cover of rebuttal."
In relation to section 163, the party beginning has to make an option andreserve his right to adduce evidence in rebuttal as to the issues where the onuslay on the opposing party. The reservation to lead evidence in rebuttal shouldbe made before the party beginning adduces evidence or at the latest beforesuch party closes his case. If the reservation is objected to, an order shouldbe sought from court so that parties would know the precise nature of theproceedings that will be had in the case.
Per S. N. SILVA, J.
" Even assuming that the Plaintiffs were entitled to lead evidence in rebuttal,they should have been ready for this purpose by the 34th date of trial, whenthe case of the defendant was being closed. “
In terms of section 175 (1) of the Civil Procedure Code, a party is notentitled to call as a witness a person who has not been listed in terms of section121 (1) of the Civil Procedure Code. This provision requires the list of witnessesto be filed not less than 15 days before the date fixed for trial. The proviso tosection 175 (1) empowers the court to use its discretion in special circumstanceswhere such a course is rendered necessary, in the interests of justice, to permita witness to be called, whose name is not included in a list filed in compliancewith section 121(2).
In the instant case the plaintiffs did not indicate to the District Court thematerial that they intended to adduce through the witness Mervan Peiris. Nodescription or address has been disclosed of this witness as required by theCivil Procedure Code. The defendant had no notice whatever of the nature ofthe evidence intended to be adduced through this witness.
The discretion of court was rightly exercised in refusing to permit MervanPeiris to be called.
CA Subramaniam and Another v. Ceylon Paper Sacks Ltd. (S. N. Silva, J.)255
Cases referred to :
Alim Will Case 20 NLR 481, 486.
Penn v. Jack and Others – The Law Reports Equity Cases (1866) 314.
Green v. Sevin – The Law Reports, Chancery Division, (1879) Vol. XIIIP. 589, 597.
Nanhey Raja v. Kadar Nath, (1953) All India Reporter, Vol. 40 P. 953.APPLICATION for leave to appeal from order of the District Court.
K. Kanag – Iswaran, P.C. with Harsha Cabral for plaintiff-petitioners.
Vernon Wijetunga, Q.C. with S. G. Wijesekera and H. Anthony for defendant-respondent.
Cur. adv. vult.
March 03rd, 1993.
S. N. SILVA, J.
The plaintiffs have filed this application for leave to appeal fromthe order dated 4.12.1991 of learned Additional District Judge.By that order learned Additional District Judge refused theapplication of the plaintiffs to lead evidence in rebuttal and inparticular refused to allow the plaintiffs to call one Mervan Peirisas a witness in rebuttal. Upon that order being made learnedPresident's Counsel for the plaintiffs closed the case of the plaintiffs,leading in evidence documents marked P1 to P13. The case of theplaintiff had been closed previously on 21.6.1988 at the conclusionof the evidence of the plaintiffs' witnesses, reading in evidencedocuments marked P1 to P7 (p 348). The case for the defendanthas also been closed reading in evidence documents marked D1to D 55. Learned Additional District Judge gave dates for writtensubmissions of the parties. Written submissions of the defendanthave been filed and the written submissions of the plaintiffs aredue on 15.3.93. By this application the plaintiffs are seeking toset aside the aforesaid order of learned Additional District Judge andare also seeking permission for the plaintiffs to file additional listsof witnesses and documents and to lead evidence in rebuttal.
Trial in the case commenced on 24.4.1987. There have been 34dates of trial up to 4.12.1991. The Additional District Judge beforewhom the trial commenced retired and the Additional District Judgewho heard the evidence was subsequently appointed a Judge of theProvincial High Court. He is now hearing the case on a special
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appointment made by the Judicial Service Commission. The onlystep to be taken in the trial is for the plaintiffs' Counsel to tenderhis reply (for which a date has been given as aforesaid) and forlearned Judge to deliver judgment.
On 4.12.1991 being the last date on which proceedings were hadin the District Court, the only witness the plaintiffs wanted to call inrebuttal was one " Mervan Peiris of Colombo " whose name wascontained in the 7th additional list of witnesses of the plaintiffsdated 2.12.1991, filed one day before the 34th day of trial. Neithera description nor the address of this witness is contained in the list.The defendant on whom this list was served the day previous wasgiven no indication as to what this witness was intending to testify.Similarly, in the petition filed in this Court, seeking leave to appeal,no particulars whatsoever are given of the witnesses whom theplaintiffs intend to call in rebuttal. Relief is sought simply to permitthe plaintiffs to file " additional lists of witnesses and documents ifany ”. We have to note that the plaintiffs are by this reliefattempting to resile from the position in the District Court wheretheir case has been closed not once but twice by learnedPresident's Counsel appearing for them. These matters weigh heavilyagainst the plaintiffs' appeal and their application to suspend theproceedings in the District Court, at the eleventh hour.
The plaintiffs are owners of a patent for a " Multiwall Sack ForDry Tea " (Patent No. 9329) which was registered on 14.7.1983 interms of the Code of Intellectual Property Act No. 52 of 1979. Theaction was filed on 01.07.1986 to restrain the defendant frominfringing the patent and for damages. An interim injunction thathad been issued was dissolved by the District Court after inquiry.
It appears that a stay of that order was granted by this Court in anapplication by the plaintiffs.
The defendant in his answer stated that Multiwaii Paper Sackshave been used as packaging material for over 100 yearsinternationally and that the defendant has been producing thesesacks from 1965 for packaging several products including tea. It waspleaded that the purported invention is not new, does not involvean inventive step and has been anticipated by prior art. These arethe requirements of a patentable invention in terms of sections60, 61 and 62 of the Act. On that basis the defendant prayed fora declaration that Patent No. 9329 is null and void.
Subramaniam and Another v. Ceylon Paper Sacks Ltd. (S. N. Silva, J.)257
Learned President's Counsel for the petitioner submitted thatthe plaintiffs have to prove only title to the patent and the allegedinfringement and are entitled to lead evidence in rebuttal after thedefendant has placed evidence for the declaration that the patent isinvalid. Learned Queen's Counsel, on the other hand submittedthat the plaintiffs raised a specific issue in the District Court that thepatent was valid and subsisting and as such evidence as to validityshould have been adduced in evidence-in-chief of the plaintiffs. It wasalso submitted with reference to the evidence of the 1st plaintiff thatevidence as to validity was in fact adduced and as such evidenceon the same matter cannot be adduced in rebuttal which will in effectconfirm the evidence-in-chief.
Learned President's Counsel for the plaintiffs urged that leaveto appeal should be granted because the matter at issue relatesto an important question as to the nature of the proceedings inan alleged infringement of a patent and the extent to which theburden lies on each party. We are of the view that it isunnecessary for the purposes of this appeal to go into thequestion addressed by learned President's Counsel in abstract,in relation to proceedings that may generally be taken foran alleged infringement of a patent. It is clear from the issuesraised by learned President's Counsel for the plaintiffs at thetrial that the plaintiffs assumed- a burden to establish the validity ofthe patent. Issues were suggested earlier on the basis of onlyinfringement and relief (vide proceedings of 24.4.1987), sinceregistration of the patent was admitted. On objection raisedby learned Queen's Counsel for the defendant, Counsel for theplaintiffs re-framed the issue (1) as follows :
"1(a) Is the said patent 9329 valid
(b) Is the defendant acting in
violation of the plaintiffs' rightsunder the said patent 9329 as pleadedin paragraph 6 (a) of the plaint?"
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In the circumstances we are of the view that learned AdditionalDistrict Judge was not in error when he observed that the plaintiffsled evidence and were obliged to prove that the patent is valid andsubsisting. Learned Queen Counsel, quite correctly, drew our attentionto the several passages of the plaintiff's evidence in support of hisclaim of a patentable invention.
The issues of the defendant are based inter alia on therequirements of a patentable invention as noted above. Therefore,these issues are in effect the converse or the negative of issue 1(a) framed by the plaintiffs. It is in this context that learned AdditionalDistrict Judge observed that the plaintiff in this case is not entitledto lead evidence in rebuttal.
Learned President's Counsel relied heavily on the Alim Will Case(1) 20 N.L.R. P481 and the case of Penn Vs Jack and Others m TheLaw Reports Equity Cases (1866) page 314 in support of hissubmission that the aforesaid observation is erroneous. In the AlimWill case, a Last Will that was propounded was challenged onthe basis that the signature was obtained by a fraudulent substitution.The Petitioner rested his case by adducing evidence only of execution.Respondents adduced evidence of fraud and an application ofthe Petitioner to rebut that evidence of fraud, was refused. TheSupreme Court held that although, as of right, the Petitioner couldnot call evidence at that stage, the judge should have allowedthe application in exercising his discretion in the interests ofjustice. Bertram CJ commented (at page 487} that where evidenceof fraud has been adduced " it is repugnant to one's idea ofjustice “ that the persons against whom the charge is made“ should be denied an opportunity of giving their version of thecircumstances, when they were anxious to do so." in this case weare not confronted with a parallel situation.
In the case of Penn vs Jack (supra) it was held that in asuit for an infringement of a patent the plaintiff was entitled to callevidence in reply for the purpose of rebutting a case of prior user,set up by the defendant. Although the decision appears to supportthe submission of learned President's Counsel, it is not clear asto whether an issue of validity of the patent was raised by theplaintiff in that case. The issue appears to be as to the grant ofthe patent. The decision has been made in the course of aproceeding. It commences with the sentence, “ I think the plaintiff
CA Subramaniam and Another v. Ceylon Paper Sacks Ltd. (S. N. Silva, J.)259
is entitled to adduce evidence in reply for the purpose of rebuttingthe case set up by the defendant….". Further an observation ismade that " the witnesses are at hand and ready and thesensible and obvious course is to examine them now ". We areinclined to agree with the submission of learned Queen'sCounsel that it is highly misleading to apply this decision to thecase before us, without knowing the issues raised by each party inthe case.
The question whether a party who begins a case shouldbe permitted to call evidence in rebuttal has to be decided primarilyin relation to the proceedings had in each case. There are twosituations in which rebuttal evidence may be permitted. They are :
Where there are several issues in the case and theburden of proving only some of them lie upon the party beginningand of the others on the opposing party. In such a situation,section 163 of the Civil Procedure Code provides that the partybeginning may at his option adduce evidence-in-chief on theissues where the burden lay on him and reserve his right tolead rebuttal evidence in respect of the issues where the burdenlay on the opposing party.
Where the Court may in any event, in the interests ofjustice, permit the party beginning to lead evidence in rebuttal.
Learned President's Counsel relied on situation (i) covered bysection 163 and submitted that in this situation the party beginninghas a right to lead evidence in rebuttal and cannot be denied theexercise of that right at the discretion of court as has happened inthis case.
We are inclined to agree that in situation (i) there is an elementof a right in the party unlike situation (ii) which is entirely at thediscretion of court. However, even in situation (i), the judge has adiscretion in considering the particular issues raised by therespective parties and the evidence hitherto adduced by the partybeginning, to decide whether that party has the right that isclaimed under section 163. That is what happened in this case.
The relevant portion of section 163 reads as follows :
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“ But where there are several issues, the burden of provingsome of which lies on the other party or parties, the partybeginning may at his option either produce his evidence on thoseissues or reserve it by way of answer to the evidenceproduced by the opposing party or parties ; and in the latter casethe party beginning may produce evidence on those issues afterthe other party or parties has or have produced all his or theirevidence. "
This provision manifestly embraces a situation where therespective issues are distinct and are discernible as such. It doesnot readily apply in a situation where the respective issues overlapor where the issues raised by the opposing party are the counteror negative of the issues raised by the party beginning. In suchsituation the party beginning cannot split his case into two, presentpart in evidence-in-chief and seek to confirm that part by takinga second bite of the same cherry, under the cover of rebuttal. InHalsbury's Laws of England (4th Edition Page 15) this basic principleis stated thus :
” When the onus of proof on all issues is on one party, thatparty must ordinarily, when presenting his case, adduce all hisevidence, and may not, after the close of his opponent's case,seek to adduce additional evidence to strengthen his own case.In theory, when the onus is partly upon the plaintiff and partlyupon the defendant, the plaintiff may in the first instance limit*his evidence to proving those issues in respect of which the onusis upon him, and then, after the close of the defendant's case,adduce evidence in rebuttal upon those issues where the burdenwas upon the defendant. Such evidence in rebuttal must beconfined solely to rebuttal and not merely be evidence inconfirmation of evidence-in-chief. "
To permit the party beginning an opportunity to lead evidence inconfirmation of his evidence-in-chief, after the opposing party hasdosed the case will give him an undue advantage and strike atthe very root of fairness of proceedings.
The case of Green Vs. Sevin (3) presents a situation where theissues of fact in relation to the plaintiff's claim and the defendant'scounter-claim were indentical. Fry J held as follows, (at page 597).
Subramaniam and Another v. Ceylon Paper Sacks Ltd. (S. N. Silva, J.)261
“ In the present case it appears to me that I ought not to admitfresh evidence at this stage of the proceedings. All the issuesof fact on the claim and on the counter-claim are the same ;I am not able to find one which is different. The evidence on theclaim has been closed, and I think I should be doing wrong ifI were now to allow fresh evidence to be adduced. It is said thatthere are facts which are material on the question of delay, but,if so, they would have been material with reference to the plaintiff'snotice to rescind. I should be creating a very inconvenientprecedent if I were to admit new evidence now, when the wholecase has been gone into in the plaintiff's opening. Without sayinganything about cases in which the issues on the counter-claimare different from those on the claim, I refuse to allow freshevidence on the ground which I have already mentioned, thatin the present case the issues on the claim and on the counter-claim are identical. "
A further aspect of significance in relation to section 163 is thatthe party beginning has to make an option and reserve his right toadduce evidence in rebuttal as to the issues where the onus lay onthe opposing party. The section does not specify the stage at whichsuch reservation should be made. In the Alim Will case (supra atpage 466) some observations were made that such a reservationneed not be expressly made. However, it is to be noted that itwas a case where there was a single issue and evidence offraudulent substitution arose only in the evidenoe adduced by theRespondents. The petitioner had no opportunity whoever to explainthe circumstances relevant to the allegation. In any event theirLordships held that the application to lead evidence in rebuttalshould have been allowed in the interests of justice, therebyalluding to situation (ii) stated above and not to an application ofthe provisions of section 163.
The reference in section 163 to a reservation being made by theparty beginning, clearly implies that it should be done at the stagethat party is leading evidence and certainly before the opposingparty commences adducing evidence. A useful observation in thisregard is found in the judgment of Krishnan JC in the case ofNanhey Raja Ks. Kadar Nath, (4). It was observed as follows :
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“ The law does not prescribe a situation at which a party shouldapprise the Court of its exercising the option under O 18, R3,but, it is only reasonable that this should- be done if possible,before it begins; and in any case before the other party beginsits evidence so that it might clearly note that the first partyhas not really finished. In certain circumstances it might becomenecessary to scrutinize the option to see if it is not a deviceto shift the burden of proof on the other party ; or to bring inseparate evidence, as it were, by the back door. "
In this case learned President’s Counsel for the plaintiffssubmitted at the commencement of proceedings on 30.4.1987that the plaintiffs are reserving their right to lead evidence inrebuttal. This was objected to by learned Queen's Counsel forthe defendant. Thereupon, the matter was not pursued further bylearned President's Counsel and no ruling was sought fromcourt. Later, on 21.6.1988, more than one year later counsel forthe plaintiffs closed the case of the plaintiffs without making anyreservation to lead evidence in rebuttal. The question of leadingevidence in rebuttal featured next 3 1/2 years later on 4.12.91. Inthese circumstances we are of the view that there is merit in thesubmission of learned Queen's Counsel for the defendant that noreservation has been made by the plaintiffs to lead evidence inrebuttal as required by section 163 of the Civil Procedure Code andthat the application made for this purpose is much belated andcauses prejudice to the defendant. We are of the view that areservation to lead evidence in rebuttal should be made before theparty beginning adduces evidence or at the latest before such partycloses his case. If the reservation is objected to an order should besought from court so that the parties would know the precise natureof the proceedings that will be had in the case.
As regards situation (ii) above we wish to refer to the followingstatement in Halsbury's Laws of England (supra p15) :
” There is a judicial discretion to allow further evidence to becalled even when it should have been adduced in the first place,where the judge considers it necessary in the interests of justice.Such evidence in rebuttal will generally be allowed when the partywishing to adduce it has been taken by suprise and for that reasondid not call the evidence earlier. "
CA Subramaniam and Another v. Ceylon Paper Sacks Ltd. (S. N. Silva, J.)263
The judgment of the Supreme Court in the' Alim Will case isreferable to this situation. In the case before us, the defendant hadraised the matters on which he was relying upon to establish theinvalidity of the patent at a very early stage, viz, in the objectionsto the interim injunction. Therefore it could not be said that theplaintiffs were taken by suprise by the evidence of the defendant.For the reasons stated above we. are of the view that theapplication of the plaintiffs to lead evidence in rebuttal does not fallwithin either situation referred above. We are therefore of the viewthat learned Additional District Judge was not in error when heobserved that the plaintiffs were not entitled to lead evidence inrebuttal.
In any event we are of the view that the real decision in this casefalls Into a narrower conspectus than the general observation oflearned Additional District Judge that the plaintiffs are not entitledto lead evidence in rebuttal. Even assuming- that the plaintiffswere entitled to lead evidence in rebuttal, they should have beenready for this purpose by the 34th date of trial, when the case ofthe defendant was being closed. On this day the only witnessthe plaintiffs sought to call in rebuttal was the witness describedas " Mervan Peiris of Colombo “. Clearly, there was no other witnessof the plaintiff to be called on that day. The previous list ofwitnesses of the plaintiff ■ (the 6th additional list) was filed on21.9.87, well before the case of the plaintiffs was closed. Whenthe application to call Mervan Peiris was refused by learnedAdditional District Judge, learned President's Counsel did not informCourt that there were other witnesses to be called nor did he makean application for that purpose. Instead, he closed the case of theplaintiffs for the second time, as noted above.
Considering whether learned Additional District Judge was correctin refusing the application to cal! this witness, we have to be guidedby the provisions of section 175 (1) of the Civil Procedure Code.
In terms of this section a party is not entitled to call as a witnessa person who has not been listed in terms of section 121(1) of theCivil Procedure Code. This provision requires the list of witnessesto be filed not less than 15 days before the date fixed for trial.
As noted above, the 7th additional list was filed only one day beforethe date of trial. The proviso to section 175 (1) empowers the courtto use its discretion in special circumstances where such a course
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is rendered necessary, in the interests of justice, to permit a witnessto be called, whose name is not included in a list filedin compliance with section 121(2). In this instance the plaintiffshave not indicated to the District Court the material that theyintended to adduce through the witness referred to. Indeed, nodescription or address has been disclosed of this witness asrequired by the Civil Procedure Code. The defendant had no noticewhatever of the nature of the evidence intended to be adducedthrough this witness. In the circumstances we are of the view thatlearned Additional District Judge was not in error when he refusedto exercise the discretion of court in allowing that witness to be called.
For the several reasons stated above we hold that the plaintiffshave not raised an arguable case in support of this application. Weaccordingly refuse this application for leave to appeal. The defendantwould be entitled to costs of this application.
D. P. S. GUNASEKERA, J. – I agree.
SUBRAMANIAM AND ANOTHER v. CEYLON PAPER SACKS LTD