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RAFENSTEINCOURT OF APPEALUDALAGAMA, J. ANDNANAYAKKARA, J.
DC HORANA 6651/MR..
MARCH 18 ANDMAY 9 AND 23, 2002.
Civil Procedure Code, sections 112,143,(1), 145,153,154 and 158 -Examination on a relevant portion of document when no cross examinationhad been done on the document – Permissibility — Introduction of documentsfor first time in re-examination – Permissibility – Postponement sought – Nonavailability of witness – Refused – Direction of court – No specific prayer forleave to appeal – Is it fatal?
At the trial the counsel for the defendant-appellant sought the permission ofcourt to mark document V12, This was allowed by the trial judge. Relevantportions from V12A to V120 of V12 had been marked by the defendant in thecourse of cross examination, but the witness was not cross examined on thesaid portions “V12”. After the conclusion of the cross-examination of thiswitness by the plaintiff the defendant made an attempt to re-examine thewitness on the relevant portions of the document V12. This was refused bycourt. Thereafter, the defendant-petitioner sought to mark document V14 in thecourse of re-examination of his own witness. This was also refused by court.After further evidence was recorded, the defendant-petitioner made anapplication for a postponement of the trial on the ground of non availability ofthe defendant’s witness. This too was refused by court.
On leave being sought.-
A careful reading of section 153 makes it evident, it is only if he hadbeen cross examined on a matter that re-examination is permitted. Asthe impugned order is concerned, it is evident that there had not beenany examination on the portions V12A – V120 of V12.
Alwis v. Rafenstein
CA (Nanavakkara. J.)1Q3
Introduction of documents for the first time in the course of re-examination of a witness should not be permitted as grave prejudicecould be caused to a party who had no opportunity of testing theauthenticity of the document.
The discretion whether to adjourn the proceedings or not on anapplication made by a party is entirely vested in the District Judge andno party can question the Districe Judge's right in regard to the exerciseof the discretion. The power vested by section 143(1) should beexercised with due regard to section 145.
Although the petitioner has not made any specific prayer for leave toappeal he has unambiguously set out the provisions of the Code underwhich he claims his relief. It can be said that the plaintiff-respondentwas not prejudiced in any manner by the absence of a specific prayerfor leave to appeal in his petition.
Per Nanayakkara, J.
“ It is settled law, that rules of procedure in making an application to courtshould not be used to hinder administration of justice but to eliminate delayand facilitate due administration of'justice.”
APPLICATION for leave to appeal from an order of the District Court ofHorana.
Cases referred to:
S. Pohnadurai v G.C.P. Amerasekera – LLJ 95
Perera v AvishamyT 12 NLR 26
Weerakoon v Hewavitharana – (78 – 79) 2 Sri LR 97
Kiriwante v Navaratne -1996 2 Sri LR 393V. Kulatunga for appellant.
C.E. de Silva with Sarath Walgama for petitioner
Cur. adv. vult
September 03, 2002.
NANAYAKKARA, J.The defendant-appellant in this case has canvassed by thisapplication three orders made on 28.5.2001 by the learned DistrictJudge in the course of the trial held in an action instituted by theplaintiff-respondent (respondent) against the defendant-appellant
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for the recovery of a sum of Rs. 1973410/- which the plaintiffalleged was obtained by the defendant in excess of the actual sumdue to him for some construction work (hostel) undertaken by thedefendant-appellant. After the institution of the action, thedefendent in response to the pleadings in the plaint, filed heranswer making a claim in reconvention.
The trial of this action had proceeded on the basis of 17 issues,and of the 17 issues, first four issues had been formulated by theplaintiff, while the rest had been formulated by the defendant.
Thereafter the plaintiff-respondent had commenced her case byleading her evidence. At the end of the plaintiff-respondent’sevidence a witness by the name of C. Wedikkara who had carriedout an inspection of the building and prepared an estimateconsequent to a commission, issued by court had given evidenceon behalf of the plaintiff.
After the closure of the plaintiff’s case the defendant hadcommenced, her case by placing her evidence before court.Thereafter a witness by the name of Sarath Padmasiri Pererawhom the defendant-appellant alleges is a Diploma holder in civilengineering and possessed qualifications and experience in thefield of quality surveying and building construction had been calledas a witness with a view to rebutting the evidence, given byWeddikkara, on behalf of the plaintiff-respondent. In the course ofthe cross examination of this witness by the plaintiff-respondent inresponse to the following question:
the counsel for the defendant-appellant sought the permission ofcourt to mark a document (P12) which had a direct bearing on andarising out of the question posed by the Counsel for the plaintiff.Although the Counsel objected to the production of the documenton the ground that it did not bear the name of the author, or itsmaker, the learned District Judge disallowing the objection hadpermitted the defedant to mark the said document.
Thereafter relevant portions from V12A to V120 of thedocument (V12) had been marked by the defendant in the course
Alwis v. Rafenstein
of cross examination. But the witness was not cross examined onthe said portions of the document (V12) by the plaintiff.
At the conclusion of the cross examination of the witness by theplaintiff the defendant purporting to act under section 153 of CivilProcedure Code had made an attempt to re-examine this witnesson the relevant portions of the document marked V12. The learnedDistrict Judge had disallowed it on the ground that no crossexamination had been done by the plaintiff on the document.
This is one of the orders canvassed by the defendant by thisapplication and it would be necessary at this stage to examine the sovalidity of this particular order before the validity of other 2 ordersmade on this day are examined. In this connection it would beimportant to refer to section 153 of the Civil Procedure Code whichis relevant to the question in issue. The particular section providesthus:–
153. Then shall follow re-examination by the first side ifrequired, for the purpose of enabling the witness to explainsuch answers given by him on cross examination as mayhave left facts imperfectly stated by him, and to add suchfurther facts as may have been suggested and made 60admissible by the cross examination.
A careful reading of this section makes it evident, it is only if theyhad been cross examined on a matter that re-examination ispermitted. As far as the impugned order is concerned, it is evidentthat there had not been any cross examination on the portionsV12A to V120 of the document (V12) sought to be marked by thedefendant’s Counsel in the course of cross examination of thedefendant’s witness by the plaintiff.
Therefore, I am of the view that the learned District Judge wascorrect in disallowing any re-examination on the aforesaid portions ?oof the document (V12) marked by the defendant-appellant as thequestion of re-examination would arise only if there is crossexamination on a matter.
The 2nd order canvassed by .this defendant-petitioner by thisapplication relates to a document which the counsel for thedefendant-petitioner sought to mark in the course of the re-examination of his own witness.
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The learned District Judge had disallowed the defendant-petitioner’s application to mark this document (V14) on the groundthat the existence of this document (V14) had come to light only inthe course of re-examination of his witness Dayasiri Perera, and noattempt had been made to produce it at the time when the witnesswas under examination-in-ehief.
It would be now necessary to examine the correctness of theimpugned order.
For this purpose examination of the sections 112 and 154 of theCivil Procedure Code would be pertinent. Section 112 of the CivilProcedure Code provides thus:-
112. No documentary evidence in the possession or power ofany party which should have been, but has not beenproduced in accordance with the requirements of section 111,shall be received at any subsequent stage of theproceedings, unless good cause be shown to the satisfactionof the court for the non production thereof. And the court onreceiving any such evidence shall record its reason for sodoing.
Section 154 of the Civil Procedure Code provides thus:-
154. (1) Every document or writing which a party intends touse as evidence against his opponent must be formallytendered by him in the course of proving his case at the timewhen its contents or purport are first immediately spoken toby a witness. If it is an original document already filed in therecord of some action, or the deposition of a witness madetherein, it must previously be procured from that record bymeans, of and under an order from, the court. If it is a portionof the pleadings, or a decree or order of court made inanother action, it shall not generally be removed therefrom,but a certified copy thereof shall be used in evidence instead.
It is clear from a careful reading of the section of the CivilProcedure Code, that introduction of documents for the first time inthe course of re-examination of witnesses, should not be permitted,as grave prejudice could be caused to a.party who had not had anopportunity of testing the authenticity of the document.
Alwis v. Rafenstein
In this regard the decisions of S. Ponnudurai v G.C.P:Amerasekera. (1) and Perera v Avishamy@). would be useful inresolving the issue at hand. Therefore I am of the view that thelearned District Judge was correct in not permitting the defendant-appellant to mark this particular document (V14) in the course of re-examination.
As far as this particular document (V14) sought to be marked by 120the defendant-appellant is concerned, it is evident from a perusal ofthe proceedings that, it is a document with which the defendant-petitioner had ample opportunity of either confronting the plaintiffwhen he was giving evidence or when the particular witnesssummoned on behalf of the defendant-petitioner was givingevidence.
It is only when the defendant-petitioner made'an attempt to markthis document during the course of the re-examination, of his ownwitness that the learned District Judge had disallowed theapplication.130 ■
Therefore placing reliance on the provisions of sections 112 and154 of the Civil Procedure Code, it is my considered view that thelearned District Judge was correct in disallowing this particulardocument to be marked in re-examination of the witness.
The third order which the defendant-appellant impugns resultsfrom the learned District Judge’s..refusal of an application made fora postponement of the trial on the ground of non availability of thedefendant’s witness who was expected to give evidence on thatday.
It would be now necessary to determine whether the learned noDistrict Judge was justified in refusing the defendant-appellant’sapplication for postponement of the' trial on the ground of nonavailability of the witness as alleged by the appellant.
■ Perusal of the proceedings of the District Court discloses thatafter many dates of trial, on which the evidence of both the plaintiffand the defendant had been taken, the learned Judge on17.05.2001 had finally fixed the trial for 25.05.2001 for the purposeof recording further evidence of the defendant-petitioner’shusband’s evidence. At the conclusion of the defendant-appellant-
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petitioner’s husband’s evidence, his Counsel had moved for apostponement of the trial on the ground that a witness whom thedefendant-appellant intended to call had left the court.
In regard to this impugned order, it should be observed thatexamination of the relevant entries in the record shows that therehad not been any attempt on the part of the defendant-petitioner totake out summons on .this particular witness to be present in courtalthough trial had been fixed finally for this day. There is also noevidence to show that this particular witness was at least present incourt on that day to testify on behalf of the defendant-petitioner.
If at the conclusion of the evidence of a witness the trial courtfinds that it could proceed with further evidence, it is well within thepowers of the trial Judge to call upon a party to lead the evidenceof any other witness till the trial is adjourned for the day. Thediscretion whether to adjourn the hearing or not on an applicationmade by a party entirely is vested in the District Judge and no partycan question the District Judge’s right in regard to the exercise ofthat discretion. This is clearly borne out by Weerakoon vHewavitharana. (3)
In this connection, reference to section 145 of the CivilProcedure Code would also be pertinent. Section 145 of the CivilProcedure Code reads thus:
145. If any party to an action, to whom time has been granted,fails to produce his evidence, or to cause the attendance of hiswitness, or to perform any other act necessary to the furtherprogress of the action, for which time has been allowed, thecourt may, notwithstanding such default, proceed to decide theaction forthwith.
It is true, as shown in section 143(1) of the Civil ProcedureCode, the court is empowered depending on sufficient cause beingshown if any to grant time to any of the parties or may from time totime adjourn the proceedings. But in my view, powers vested bythis section should be exercised with due regard to sections 145 ofthe Civil Procedure Code.
Therefore, considering the circumstances in which the refusalfor postponement of the trial was made by the learned DistrictJudge, I am of the view that the learned District Judge was justified
AMs v. Rafenstein
in refusing the postponement prayed for by the defendant-petitioner.
Finally some observations should be made in regard to the
preliminary objection taken by the plaintiff-respondent in this case.The plaintiff-respondent taking up a preliminary objection to thisapplication has moved that it be rejected in limine, on account ofthe failure of the defendant-petitioner to pray specifically for leaveto appeal by this application. The plaintiff-respondent avers thatabsence of a specific prayer for leave to appeal in the applicationand non compliance with the provisions of section 758 of the CivilProcedure Code disentitles the defendant-petitioner to the reliefclaimed by him.
It is settled law, that rules of procedure in making an applicationto court should not be used to hinder administration of justice butto eliminate delay and facilitate due administration of justice.
Reasoning adopted by his Lordship Kulatunga in a case of noncompliance with the Supreme Court Rules is applicable with equalforce to a situation where no compliance with section 758 of theCivil Procedure is alleged. Justice Kulatunge in Kiriwantha vNavaratne (4) dealing with a case of non compliance with the Rulesof the Supreme Court expressed his view in the following terms:-“In exercising its discretion the court will bear in mind the need tokeep the channel of procedure open for justice to flow freely andsmoothly and the need to maintain the discipline of the law. At thesame time the court will not permit mere technicalities to stand inthe way of the court doing justice”. In the same case JusticeFernando expressing his view in the following terms said“Consequence of non compliance (by reason of impossibility or forany other reason) is a matter falling withing the discretion of thecourt, to .be exercised after considering the nature of default, aswell as the exercise or explanation thereof in the context of theobject of the particular Rule”.
Therefore considering the failure of the defendant-petitioner to. make a specific claim for leave to appeal in his petition in the lightOf the reasoning adopted by these authorities should not be aground for dismissal of the petition in limine, unless such failure hascaused grave prejudice to a party.
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In regard to this objection it should also be observed, althoughthe petitioner has not made any specific prayer for leave to appeal,he has unambiguously set out the provisions of the Civil ProcedureCode under which he claims his relief. Therefore it can be said thatthe plaintiff-respondent was not prejudiced in any manner by theabsence of a specific prayer for leave to appeal in this petition.
For the foregoing reasons, although I reject the preliminay 230objection taken against the maintenance of the application,nevertheless in view of the findings already made by me in regardto the preliminary matters raised by the plaintiff-respondent, Irefuse leave and cast the defendent-petitioner in cost in a sum ofRs. 5,000/-.
UDALAGAMA, J. – I agree.