Thereafter as per journal entry (15) dated 13.05.2004 the plaintiff -petitioner has closed his case and further trial had been postponed to
on which date when the defendant-respondent’s casecommenced, one A. Wimalaratne was called by the defendant-respondentto give evidence. In the course of his evidence counsel for the defendant -respondent sought to mark in evidence the document marked V 6 acomplaint made to the Colombo Frauds Bureau on the basis that the saiddocument is listed in the additional list of documents and witnesses filedby the defendant – respondent on 09.05.2003. Counsel for the plaintiff -petitioner objected to the production of the said document marked V6 onthe basis that the said document had been listed after the commencementof the trial and that the said document has not been listed in compliancewith the provisions contained in section 121 (2) of the Civil Procedure Code.Section 121 (2) of the Civil Procedure Code reads as follows:
Rogers Agencies (Pvt) Ltd vs
People's Merchant Bank Ltd (Andrew Somawansa, J.(P/CA)
“Every party to an action shall, not less than fifteen days beforethe date fixed for the trial of an action, file or cause to be filed incourt after notice to the opposite party –
a list of witnesses to be called by such party at the trial, anda list of the documents relied upon by such party and to beproduced at the trial”.It appears to me that the meaning assigned to the words “before theday fixed for the hearing” is the first date on which the trial is fixed forhearing. The meaning of the aforesaid words are clear and no other meaningcould be assigned to the aforesaid words. Accordingly it is apparent thatas per journal entry (6) dated 18.01.2002 the first date on which the trialhad been fixed for is 13.05.2002 and the defendant – respondant's additionallist of witnesses and documents have been filed on 09.05.2003 clearly notin compliance with the requirements in section 121 (2) of the Civil ProcedureCode.
Section 121 (2) of the Civil Procedure Code is to be read with section175(2) of the Civil Procedure Code which reads as follows:
“A document which is required to be included in the list ofdocuments filed in court by a party as provided by section 121 andwhich is not so included shall not, without the leave of the court, bereceived in evidence at the trial of the action;
Provided that nothing in this subsection shall apply to documentsproduced for cross examination of the witnesses of the oppositeparty or handed over to a witness merely to refresh his memory”
In the case of Kandiah vs. Wiswanathart'>
“When an unlisted document is sought to be produced in a DistrictCourt trial, the question as to whether leave of court should be grantedunder section 175(2) of the Civil Procedure Code is a matter eminentlywithin the discretion of the trial Judge. The precedents indicate that leavemay be granted,
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(2005) 3 Sri L R.
where it is in the interests of justice to do so ;
where it is necessary for the ascertainment of the truth ;
where there is no doubt about the authenticity of the documents(as for instance certified copies of public documents or records ofjudicial proceedings);
where sufficient reasons are adduced for the failure to list thedocument (as for instance where the party was ignorant of itsexistence at the trial).
Where the Court admits such a document, an appropriate order forcosts will generally alleviate any hardship caused to the said party.
Leave may not be granted where the other side would be placed at adistinct disadvantage.
When an objection is taken to the admissibility of a document it isdesirable that such objection should be recorded immediately before anyfurther evidence goes down.
Per Wijeyaratne, J “It happens frequently in District Court trials thatmaterial witnesses and documents have not been listed as required bylaw. The failure to do so entails considerable hardship, delay and expenseto parties and contributes to laws delays. It should be stressed that aspecial responsibility is cast on Attorneys-at-Law, who should endeavourto obtain full instructions from parties in time to enable them to list allmaterial witnesses and documents as required by Law”
When one examines the reasons given by the learned District Judge forover-ruling the objections of the plaintiff – petitioner, it appears that he hassolely gone on the basis that the objections raised by the plaintiff – petitioneris belated.
On an examination of the reasons given by the learned District Judgeover ruling the plaintiff – petitioner’s objection, it is to be seen that assubmitted by the counsel for the plaintiff – petitioner the learned trial judgehas without considering any of the matters referred to by both counsel in
CARogers Agencies (Pvt) Ltd vs215
People's Merchant Bank Ltd (Andrew Somawansa, J.(P/CA)
their submissions over – ruled the objections solely on the ground that theobjection taken by the plaintiff – petitioner to the questioned documentmarked V6 was belated. The Learned District Judge’s reasoning is thatthe additional list of witnesses and documents dated 09.05.2003 markedP4 had been accepted subject to objections and the plaintiff – petitionerhad failed to take up any objection at any of the trial dates after the aforesaidadditional list marked P4 was filed and not even at the closure of theplaintiff – petitioner’s case did the plaintiff- petitioner take up this objection.In the circumstances, the learned District Judge has come to a findingthat the plaintiff – petitioner’s objection was belated and proceeded notonly to allow the aforesaid document V6 to be marked but also acceptedthe whole list of witnesses and documents listed in the additional listwhich I think is an error on the part of the learned District Judge.
It is to be seen that the objection taken by the plaintiff – petitioner wasin respect of document marked V6 and the parties made submissions onthe question of admissibility of document marked V6 only. In thecircumstances an admission of the entire additional list of witnesses andthe documents without the plaintiff – petitioner being given a hearing hascertainly placed the plaintiff – petitioner at a distinct disadvantage andcertainly the order is bad in law. The learned District Judge has notaddressed his mind to provisions contained in section 175(2) of the CivilProcedure Code in granting leave of Court to produce a document inevidence. Court has to be satisfied with certain requirements as laid downin Kandiah vs. Wiswanathan (supra). In any event, my considered view isthat the objection taken by the plaintiff – petitioner is not belated for theplaintiff – petitioner has objected to the document marked V6 at theappropriate time and at the first opportunity he got. This it appears is theprocedure adopted in the original Courts when objecting to a document orwitness viz: to object when the document in question is sought to bemarked or when the witness in question is called to the witness box togive evidence. The reason is obvious for though listed, documents maynot be produced or witnesses may not be called and then again theremay be no reason or necessity to object to a document or a witness listedin an additional list.
In any event, I would say that there is no practice or procedure knownto law to allow an entire list of witnesses and documents simply by over –
Sri Lanka Law Reports
(2005) 3 Sri L R.
ruling an objection taken in respect of a single document in such a list ofwitnesses and documents and that too for the reason that objections hadnot been taken up at the time of filing of such a list of witnesses anddocuments.
Counsel for the defendant – respondent contends that no prejudice wouldbe caused to the plaintiff – petitioner by admitting the police statement V6in that the plaintiff petitioner has the right to cross – examine the witnesson the document and that the plaintiff – petitioner will not be placed at adisadvantage by allowing the said document marked V6. In support of thissubmission counsel for the defendant – respondent had cited a series ofdecisions. I have no reason to disagree with them but none of thosedecisions deal with a situation as that we are faced with in the instantaction. The cases cited by counsel for the defendant – respondent dealswith the proposition that non – compliance with the procedure is not fatalto an action, that this is a Court of Justice and is not an academy of law,that it is not the duty of the judge to throw technicalities in the way of theadministration of justice and that a Court should not be fettered by technicalobjections solely based on procedure are not relevant to the instantapplication.
In this application the proposition of law the Court is called upon toadjudicate is as to whether the trial judge can allow the entire list ofdocuments in the event of over-ruling an objection raised by a party inrespect of a single document contained in such list.
I am of the view that the proposition of law as aforesaid should beanswered in the negative. For the foregoing reasons, I would allow thisapplication for leave to appeal and set aside the order of the learned DistrictJudge dated 07.09.2004. I direct the learned District Judge to make afresh assessment of the objections taken by the plaintiff – petitioner inaccordance with the law. Costs fixed at Rs.5000 to be paid by the defendant- respondent to the plaintiff – petitioner.
BASNAYAKE, J.-/ agree.
Application allowed. District Judge directed to make a freshassessment of the objections taken by the plaintiff-petitioner in accordancewith the law.