Rohana Wijeweera v. Chandrananda de Silva,
Commissioner of Elections
v.CHANDRANANDA DE SILVA,
COMMISSIONER OF ELECTIONS
COURT OF APPEAL
E. DE SILVA. J., ANDT. D. G. DE ALWIS, J.
A. NO. 1/84
C. COLOMBO NO. 2275/SPLDECEMBER 4. 1984
Civil Procedure Code – Interrogatories – Dismissal of action for failure to answerinterrogatories – S. 109 of the Code – Failure to file the petition of appeal withinthe prescribed period – Sections 755 (3) and 759 (2) of the Code.
Where the District Court dismissed the plaintiffs action in terms of s. 109 of theCivil Procedure Code for failure to answer interrogatories.
There is a discretion in the District Judge to dismiss the action if thereis a failure to answer interrogatories.
The plaintiff's appeal from the order of the District Judge had to be rejectedas it was not filed within 60 days in contravention of S. 755 (3) of theCivil Procedure Code. In the absence of sufficient material, the court couldnot grant relief in terms of S. 759 (2) of*the Code in respect of suchdelay.
Case referred to:
Vithana v. Weerasinghe and Others (1981) 1 Sri LR 52.
APPEAL from the judgment of the District Court.
Prins Gunasekera for the appellant.
K. M. M. B. Kulatunga P.C, Solicitor-General with S. N. Silva, DeputySolicitor-General, Ananda Kasturi Arachi, State Counsel and T. G. Gooneratne,State Attorney for the state.
Cur. adv. vult.
Sri Lanka Law Reports
 3 Sri LR.
December 4, 1984.
B. E. DE SILVA, J.
The plaintiff filed this action against the defendant praying inter aliathat the referendum held and conducted by the defendant appointing22nd of December, 1982, for the taking of the poll on the Proclamationdated 14th November, 1982, was not conducted in compliance withthe provisions under the Referendum Act, No. 7 of 1981 and theprinciples laid down therein and asked for damages in a sum ofRs. 5,000.
The defendant filed answer resisting the plaintiff's claim and statedthat for the reasons set out in the answer the plaintiff's action cannotbe maintained. Thereafter on 24. 10. 83 the defendant made anapplication to court to serve certain interrogatories on the plaintiffthrough the plaintiffs Attorney. That application came up for inquiryon 8.11.83 and on 8.11.83 the court made order to serve the inter-rogatories on the plaintiff's Attorney to be answered within 10 daysof service of interrogatories and to call the case on 29.11.83. There-after the Attorney for the defendant filed, motion on 22.11.83 andbrought to the notice of court that interrogatories have not beenanswered within 10 days as required by law and that the matter beconsidered on 29.11.83. On that date the Attorney for the plaintiffadmitted the receipt of the interrogatories. He stated that he wasunable to answer the interrogatories for the reasons set out by himand he asked for time to answer the interrogatories. The defendantopposed this application.* After, hearing parties, court made ordergranting time till 5.12.83 to answer interrogatories. When this mattercome up for hearing on 5.12.83 the plaintiff moved for further timeto answer the interrogatories stating that his client was under arrestand his party has been proscribed. He wanted indefinite time to answerinterrogatories. This application was opposed by learned Solicitor-General for the defendant. The court has considered the submissionsmade by the parties and refused the application for granting of furthertime to the plaintiff to answer interrogatories. On the said date therewas an application by learned Solictor-General for the defendant thatthe plaintiff's action be dismissed. The learned District Judge hascarefully considered this matter and he has dismissed the plaintiffsaction as the plaintiff has failed to answer interrogatories. Section 109of the Civil Procedure Code provides thus:
Rohana Wijeweera v. Chandrananda de Silva,
Commissioner of Elections (B. E. de Silva, J.)
"If any party fails to comply with any order under this Chapter toanswer the interrogatories, . . . which has been duly served, he shall,if a plaintiff, be liable to have his action dismissed for want ofprosecution."
Under this section there is a discretion on the District Judge todismiss the action if there a failure to answer interrogatories. As theplaintiff has failed to answer the interrogatories the learned DistrictJudge has correctly exercised this discretion in dismissing the plaintiffsaction.
Learned Solicitor-General further brings to the notice of court thatthe appeal has been filed out of time. Judgment in this case hadbeen delivered on 5.12.83. The petition of appeal has been filed 63days after the judgment was delivered in contravention of section 755
which provides that appeals must be filed within 60 days of thejudgment. Under section 759 (2) it was competent for court to grantrelief even where the appeal had been filed out of time providedsufficient material was placed before court: vide (1981) 1 SLR page52. In the latter case there was an affidavit by the attorney-at-lawfor the appellant setting out sufficient material for this court to exerciseits discretion under section 759 (2). There is no such material in thiscase for the court to exercise its discretion under section 759 (2).In the circumstances in any event the plaintiffs appeal has to berejected. For the aforesaid reasons the appeal is dismissed; Therewill be no costs.
T.D. G. DE ALWIS, J. – I agree.
ROHANA WIJEWEERA v. CHANDRANANDA DE SILVA, COMMISSIONER OF ELECTIONS