ASILIN NONA AND ANOTHER
G. P. S. DE SILVA, C. J.,
KULATUNGA, J. ANDRAMANATHAN, J.
S.C. APPEAL NO. 87/95CALA NO. 48/95D. C. SALUTARA NO. 4109/LFEBRUARY 20, 1996.
Civil Procedure Code – Discretion of Court to call witnesses who are not listed -Sections 121 and 175 of the Code.
Although Section 121(2) of the Civil Procedure Code requires every party to filethe list of witnesses "hot less than 15 days before the date of trial", partiesspecifically agreed to file the same one week before the date of trial. However, thedefendants filed their list only after the plaintiff closed his case. The DistrictJudge upheld the plaintiff's objection to the defendants' application to callWitnesses.
Section .175(1) of the Code imposes a bar against calling of witnesses who arenot listed in terms of Section 121. The 1st proviso to Section 175(1) confers on theCourt a discretion to permit a witness not so listed to be called "if specialcircumstances appear to it to render such a course advisable in the interest ofjustice". The burden of satisfying the Court as to the existence of specialcircumstances is on the party seeking to call such witnesses. There were nospecial circumstances as contemplated by the 1st proviso to Section 175(1).
Cases referred to:
Girantha v. Maria 50 N.L.R. 519,520,522
Hatton National Bank Ltd., v. Warawitage 1992 1 Sri L.R. 358.
APPEAL from the judgment of the Court of Appeal.
Manohara R. de Silva for defendants-appellanls.
N. R. M. Daluwatta, P.C., with Champaka Laduwahetty.for plaintiff-respondent.
Cur. adv. vult.
P. S. 0E SILVA, C. J.
The plaintiff instituted these proceedings seeking a declaration oftitle to, and ejectment of the defendants from, the land described inthe schedule to the plaint. The defendants resisted the plaintiff'sclaim on the plea of acquisition by title by prescription.
When the case was called on 27.9.93 the parties specificallyagreed that they will file their list of witnesses one week before thedate of trial. Although section 121(2) of the Civil Procedure Coderequired every party to an action to file the list of witnesses "not lessthan 15 days" before the date of trial, in the present case theagreement was that if a list is to be filed, it has to be done one weekbefore the date fixed for trial. The case was fixed for trial on 9.12.93and 13.12.93. The plaintiff closed his case on 13,12.93. Thedefendant filed his list of witnesses only on 17.12.93. On the nextdate of trial (31.1.94) the defendants' application to call the witnesseswas objected to by counsel for the plaintiff. The District Judge upheldthe objection. Against this order of the District Judge the defendantsmade an application for leave to appeal to the Court of Appeal. TheCourt of Appeal dismissed the application and the defendants havenow preferred an appeal to this Court.
Relying strongly on the decisions in Girantha v. Maria andHatton National Bank Ltd., v. Warawitage<ZI, Mr. Manohara de Silva forthe defendants-appellants strenuously contended that the DistrictJudge was in error when he refused the application made on behalfof the defendants to call the witnesses listed on 17.12.93. Mr. de Silvasubmitted (i) that there was a long period of time between 17.12.93and the date when the application was made to call witnesses onbehalf of the defendants; (ii) that the District Judge had wronglyexercise the discretion vested in him under the first proviso to section175 of the Civil Procedure Code; (iii) that the refusal of thedefendants’ application resulted in a miscarriage of justice; (iv) thatthere was no element of “surprise" for the reason that the plaintiff hadmore than adequate notice of the witnesses that the defendantsintended to call.
Section 175(1) of the Civil Procedure Code in its enacting partimposes a bar on a party calling witnesses unless such witnesseswere included in the list previously filed as provided by section 121.The first proviso to section 175(1) confers on the court a discretion topermit a witness not so listed to be called “if special circumstancesappear to it to render such a course advisable in the interests ofjustice". The burden was on the defendants to satisfy the court inregard to the existence of such special circumstances. The finding ofthe District Judge, however, was that no explanation was given forthe default of the defendants. This finding was not challenged beforeus. In my opinion, this clearly is an important circumstance whichtelis heavily against the defendants, particularly in view of theagreement between the parties that the list of witnesses will be filedone week before the date of trial. Admittedly, the defendants were inbreach of the agreement. As rightly submitted by Mr. Daluwatte.Counsel for the plaintiff-respondent, it would certainly not be in theinterests of justice to permit the defendants to act in breach of theagreement to which they were parties.
On the other hand, in the case of Girantha v. Maria (Supra) citedby Mr. Manohara de Silva there were special circumstances whichrequired the court to permit the defendant to call the witness, PoliceInspector Sivasambo, who was listed only after the plaintiff's casewas closed. This too was a case where the plaintiffs sought adeclaration of title against the defendant and one of the issues was"the prescriptive rights of parties”. This is a case that is often cited inthe District Courts and it is best that the relevant facts are fully setout. Gratiaen, J. in the course of his judgment stated:-
"While the 1st plaintiff was giving evidence she was crossexamined with regard to petition (marked Dl) which she hadsubmitted in 1940 to the Magistrate's Court of Dandegamuwacomplaining that the defendants were forcibly resisting her claim toenter the land in dispute. It is common ground that this petition hadbeen forwarded to Police Inspector Sivasambo for investigation, andthat at the official inquiry held by that officer the 1st plaintiff had madea statement to him in connection with the dispute, The proctor for thedefendants, who had been briefed with a certified copy of theInspector's report to Court following the inquiry, suggested to the 1stplaintiff that she had on that occasion told the Inspector “thatshe had not been in possession of this land for the last tenyears.” The 1st plaintiff denied having made any such statement toInspector Sivasambo. There can be no doubt that such an admission,if made in 1940, at an official investigation held by a Police Officer,would have very important bearing on the issue of prescription raisedat the present trial. In view of the plaintiff's denial, however, thecertified copy of this report could not be considered at the trialunless Inspector Sivasambo was called as a witness’, (at P. 520)… “In this case Inspector Sivasambo is admittedly a person whoseevidence, if accepted by the trial Judge, would be of the greatestimportance in deciding the issue of prescription. The nature of thetestimony which the defendants anticipate he would give wasexpressly put to the 1st plaintiff when she gave evidence. Theelement of surprise does not arise because the plaintiffs had severalmonths' notice of the defendants decision to call him on theadjourned date of hearing. In these circumstances it seems to methat the objection raised by the plaintiffs to Inspector Sivasambobeing called as a witness as highly technical and without merit. It was‘in the interests of justice’ that this material witness should have beenexamined, (at P. 522) (The emphasis is mine).
It is thus seen that the facts clearly establish that InspectorSivasambo was a vital witness whose testimony had a direct bearingon the issue of prescription. Therefore it was undoubtedly in theinterests of justice to permit him to be called as a witness. Thiscase is of hardly any assistance to the appellants in the appealbefore us.
Hatton National Bank Ltd., v. Warawitage (Supra) is also a case oflittle assistance to the appellant in the present appeal. That was acase where the Bank instituted proceedings for the recovery of a loangranted to the 1st defendant; the 2nd and 3rd defendants had signedas guarantors. Judgment was entered of consent against the 1stdefendant. At the trial against the 2nd and 3rd defendants, Counselfor the Bank moved to call an officer of the Bank “conversant with thefacts”. Counsel for the defendants objected on the ground thewitness was not “listed'1. Wijeratne J., while taking the view that the“officer of the Bank" is not a “party” to the action within the meaningof the 2nd proviso to section 175(1) of the Civil Procedure Code, heldthat the District Judge should have exercised his discretion in termsof the 1st proviso to section 175(1) and permitted the witness to giveevidence. On a consideration of the facts it is clear that the objectionwas of a technical nature and devoid of merit.
In the appeal before us. it is manifest that there are no “specialcircumstances" as contemplated by the 1st proviso to section 175(1)of the Civil Procedure Code. The “special circumstances" must be ofsuch nature as to further the ends of justice. I therefore hold that theDistrict Judge had fairly and properly exercised the discretion vestedin him when he disallowed the application made on behalf of thedefendants.
For these reasons the appeal fails and is dismissed with costsfixed at Rs. 500/-.
KULATUNGA, J. -1 agree.
RAMANATHAN, J. -1 agree.
ASILIN NONA AND ANOTHER v. WILBERT SILVA