Nimalasiri v Divisional Secretary, Gaieweia
SAM PATH BANK LTD.COURl OF APPEALDISSANAYAKE, J.SOMAWANSA, J.
C. COLOMBO 12516/MRAPRIL 1, 2002
Civil Procedure Code – S. 143, S. 146, S. 184(1), S. 839 – Adjournment ofhearing – Sufficient cause – Evidence Ordinance S. 58 – Proof of facts.
The trial was fixed for two days – day 1 and day 2 (afternoon), applicationmade by the defendant-appellant, to postpone case to day 2 was refused.
The plaintiff-respondent after the recording of the admission and the issuesindicated to court that in view of the admissions he will not be leading any evi-dence. The counsel for the defendant-appellant moved for a further date tolead evidence. This was refused by the trial judge and a date granted to filewritten submissions. After the written submissions were tendered, the trialjudge delivered judgment.
It was contended by the defendant-appellant that, the trial judge erred in lawin refusing to grant an adjournment.
The court was correct in refusing the application in view of the fact that thedefendant-appellant failed to show any sufficient cause for adjournment.
Sri Lanka Law Reports
 3 Sri L.R
Per Somawansa, J.
“If as the counsel submits that there is a practice of our courts to granta date on the first date of trial, I think it is time that we get rid of thatpractice.”
(i) In view of the admissions there was no need to call any witness to giveevidence or mark or produce any document, S. 58 of the EvidenceOrdinance and S. 184(1) C.P.C. are applicable.
APPEAL from the judgment of the District Court of Colombo.
Cases referred to :
Hanafii v Nallamma 1998 1 SRI LR 73
Mackinon Macanzie and Company v Grindlays Bank Ltd. 1986 2 SRI LR272
W. Dayaratne for defendant-appellant.
Aruna Samarajeewa for plaintiff-respondent.
May 22, 2002SOMAWANSA, J.
The defendant-appellant has lodged this appeal seeking to set 01aside the judgment of the Addl. District Judge of Colombo dated01.10.1993 entered in favour of the plaintiff-respondent in case No.12516/MR.
The plaintiff-respondent’s pleaded case was that the defen-dant-appellant who was running a service station entered into theagreement marked P1 with the plaintiff-respondent to provide ser-vice to the Master Card holders and that although not obliged toplace any deposit in terms of the said agreement P1, consequentto entering into further agreement with the defendant-appellant 10marked P2 the plaintiff-respondent deposited a sum of Rs. 10,000/-on the specific understanding that the defendant-appellant wouldaccept Master Cards issued by the plaintiff-respondent. Howeverdespite placing the aforesaid deposit, the defendant-appellant con-tinued to refuse to accept Master Cards and therefore the plaintiff-respondent terminated the said agreement marked P1 and P2 andin terms of the agreement marked P2 requested the defendant-appellant to return the said deposit of Rs. 10,000/- However by let-ter dated 7 July 1992 marked P3 the defendant-appellant refusedto return the said deposit. The defendant-appellant while admitting 20
Seneviratne v Sampath Bank Ltd
that he entered into the said agreement marked P1 and P2 went onto say that the plaintiff-respondent verbally agreed to give a com-mission of Rs. 500/- per month for accepting Master Cards andpleaded that the total sum due to him as commission from the plain-tiff-respondent is more than double the claim of the plaintiff-respon-dent and it is the defendant-appellant to whom a loss has beencaused in the said transaction.
When the case was taken up for trial on 7 July 1993 the coun-sel for the defendant-appellant moved that the .trial be taken up inthe afternoon as the defendant-appellant was unable to attend 30court in the morning. However the learned Additional District Judgerefused the said application on the ground that there were no othertrials to be taken up in the morning and proceeded to hear the case.
At the commencement of the trial 5 admissions were recordedand on behalf of the plaintiff-respondent only one issue was raisedwhile on behalf of the defendant-appellant 6 issues were raised.After recording the admissions and the issues counsel for the plain-tiff-respondent indicated to court that in view of the admissionsrecorded, he will not be leading any evidence on behalf of the plain-tiff-respondent. Thereafter counsel for the defendant-appellant 40moved for a further date to lead evidence on behalf of the defen-dant-appellant. This application too was refused by the learnedAddl. District Judge and a date was granted to tender written sub-missions. Thereupon both parties tendered their respective writtensubmissions and the learned Addl. District Judge by his judgmentdated 1.10.1993 held in favour of the plaintiff-respondent.
At the hearing of this appeal one of the matters urged by thecounsel for the defendant-appellant was that the learned Addl.District Judge has erred in law in refusing to grant an adjournmentto the defendant-appellant in contravention of sections 143, 146 50and section 839 of the Civil Procedure Code. Section 143 of theCivil Procedure Code deals with the adjournment of hearing of acase while section 146 deals with the determination of issues andsection 839 deals with the inherent power of the court. On anexamination of the brief, it appears that the trial in this case hasbeen fixed for two days to wit: day 1 and day 2 of 07.07.1993.When the trial was taken up on day 01 of 07.07.93 counsel for thedefendant-appellant moved that the trial be taken up on day 02 (in
Sri Lanka Law Reports
[20031 3 Sri L.R
the afternoon) as the defendant-appellant had informed him overthe telephone that he was unable to attend court in the morning.The learned Addl. District Judge having observed that the case hasbeen fixed for trial on day 01 and day 02 of 07.07.1993 refused theapplication for a postponement on the ground that there were noother trials remaining to be taken up on that day.
After the recording of admissions and issues, counsel for theplaintiff-respondent had indicated to court that in view of the admis-sions recorded he was not leading any evidence on behalf of theplaintiff-respondent. At this stage again counsel for the defendant-appellant moved for a further date to lead evidence. The learnedAddl. District Judge refusing to grant an adjournment also referredto the earlier application and observed that though the defendant-appellant has informed his Attorney-at-Law over the telephone thathe was unable to attend court in the morning he had not given anyreason as to why he was unable to be present in court in the morn-ing and it was for the defendant-appellant to satisfy court that hehad a reasonable and just cause that prevented him from attendingcourt which the defendant-appellant has failed to do.
The learned Addl. District Judge further goes on to say thateven as regards the second application for an adjournment, thedefendant-appellant has failed to satisfy court the existence of ajust and reasonable cause. Section 143 of the Civil ProcedureCode which deals with adjournment of the hearing of an actionreads as follows:
“(1) The court may if sufficient cause be shown, at anystage of the action grant time to the parties, or to anyof them, and may from time to time adjourn the hear-ing of the action.
In all such cases the court shall, fix a day for furtherhearing of the action, and may make such order as itthinks fit with respect to the costs occasioned by theadjournment:”
It is clear from the wording of this section that for an adjourn-ment to be granted in terms of this section sufficient cause must beshown. Consequently applying the provisions of section 143 of theCivil Procedure Code to the two applications made in this case for
Seneviratne v Sampath Bank Ltd
an adjournment, it is clear that the learned Addl. District Judge was cor-rect in refusing the two application in view of the fact that the defen-dant-appellant failed to show any sufficient cause for an adjournment.I might also say that if as the counsel for the defendant-appellantsubmits that there is a practice of our courts to grant a date onthe first date of trial, I think it is time that we got rid of that prac-tice. It may also be noted here that the defendant-appellant did notprefer a leave to appeal application or a revision application against thesaid order of the learned Addl. District Judge.
The two cases cited by the defendant-appellant Hanafii vNallamma^'i and Mackinon Macanzie and Company v GrindlaysBank Ltd.W which deals with section 146 (1) and (2) of the CivilProcedure Code has no relevance to the question of adjournmentof the hearing of an action.
It is also contended by the counsel for the defendant-appellantthat there is no cause of action disclosed in the plaint. It must bementioned here that this objection was not taken up or challengedin the original court. No issue was raised on this point. It must alsobe noted that though in paragraph 7 of the plaint, it is pleaded thatby letter marked P3 the defendant-appellant informed that he wouldset off the sum of Rs. 10,000/- deposited with him for the commis-sion due to him on oral agreement, the letter marked P3 do not con-tain such an averment.
However on an examination of this letter marked P3, itappears that the defendant-appellant has informed the plaintiff-respondent that he would refund the said sum of Rs. 10,000/- oncethe commission due to him is settled . Be that as it may, by lettermarked P3 the defendant-respondent admits that a sum of Rs.10,000/- was deposited with him and that the said deposit has notbeen returned to the plaintiff-respondent. It is also the position ofthe plaintiff-respondent that there was no such oral agreement topay a commission on this transaction. Thus it would appear that theplaint disclose a cause of action.
It is also contended by the counsel for the defendant-appellantthat since the plaintiff-respondent neither called any witnesses togive evidence nor marked or produce any document at the trialthere is no evidence placed before court and therefore the judg-
Sri Lanka Law Reports
(2003J 3 Sri L.R
merit of the learned Addl. District Judge is ex facie bad in law.However this argument of the defendant-appellant fails to impressin view of the provisions contained in section 58 of the EvidenceOrdinance which reads thus:
“No fact need be proved in any proceeding which theparties thereto or their agents agree to admit at thehearing, or which, before the hearing, they agree toadmit by any writing under their hands, or which by any 140rule of pleading in force at the time they are deemed tohave admitted by their pleadings:
Provided that the court may, in its discretion, requirethe facts admitted to be proved otherwise than by suchadmission.”
Also section 184(1) of the Civil Procedure Code states:
“The court, upon the evidence which has been dulytaken or upon the facts admitted in the pleadings orotherwise, and after the parties have been heard eitherin person or by their respective counsel, or registered '50attorneys (or recognized agents), shall, after consulta-tion with the assessors (if any), pronounce judgment inopen court”.
In the instant case 5 admissions were recorded. They are asfollows:
Paragraphs 1 and 2 of the plaint (incorporation of theplaintiff-respondent and the registration of the defen-dant-appellant.
That the defendant-appellant entered into the agree- 160ment morefully stated in paragraph 4 of the plaint.(Agreement marked P1)
That the defendant-appellant received a sum of Rs.
10,000/- as a deposit as morefully stated in paragraphs05 and 06 of the plaint, (including document markedP2).
Seneviratne v Sampath Bank Ltd
The document marked P3 annexed to the plaint, (theletter dated 7.7.1993). By admission of letter markedP3, the defendant-appellant also admit the plaintiff-respondent demanded the repayment of the deposit ofRs. 10,000/- by the letter of demand dated 2nd July1992 and that the defendant-appellant has not repaidthe said sum to the plaintiff-respondent.
The plaintiff-respondent raised one issue only.
In view of the above admissions is the plaintiff entitled tojudgment as prayed for?
On an examination of the judgment, it appears that the learnedAddl. District Judge has correctly considered the admissions andfacts placed before him and has arrived at a correct finding. As it isclear that all elements that the plaintiff-respondent was called uponto establish in order to obtain judgment against the defendant-appellant were in fact admitted by the defendant-appellant.
The counsel for the defendant-appellant also argued that therewas no proof of a proper demand made by the plaintiff-respondentfor the said sum of Rs. 10,000/- However in view of letter markedP3 addressed to the Attorney-at-Law for the plaintiff-respondent bythe defendant-appellant himself wherein he says-
“Reference to the letter of demand of 2nd July 1992 Ihave written to Mr. D.A. Amarasiri, InvestigatingOfficer, Sampath Bank Card Centre re the deposit ofRs. 10,000/-. I agree that a sum of Rs. 10,000/- wasdeposited.
I request you to inform your client that on receiving thesum of Rs. 500/- per month from the date of issuingpetrol to their card holders to the date of withdrawingthis facility, I will refund the amount of Rs. 10,000/- tothe Bank.”
The defendant-appellant cannot be heard to say that therewas no proof of a proper demand in terms of the Agreementmarked P2.
Sri Lanka Law Reports
(2003] 3 Sri L.R
Counsel for the defendant-appellant also contended that theCourt was in a position to infer that the defendant-appellant wasentitled to receive a commission since he would not have agreed toaccept Credit Cards if he did not receive a commission. This is onlya speculation or would amount to conjecture and surmise.
For the foregoing reasons, I see no reason to disturb the judg-ment of the learned Addl. District Judge dated 01.10.1993.Accordingly, I dismiss the appeal with costs.
DISSANAYAKE, J.I agree
SENEVIRATNE v. SAMPATH BANK LTD