Sobanahamy vs Somadasa
SOBANAHAMYVSSOMADASACOURT OF APPEALEKANAYAKE, J.
RANJITH SILVA, J.
DC, MATARA 289/SPL.
FEBRUARY 16, 2005.
Civil Procedure Code, section 187 – Issues – Necessity to answer all – Bareanswers without reasons?-Judgment to be in conformity with section 187 -Failure?
The plaintiff-appellant instituted action seeking a declaration of title to the landin question and to eject the defendant respondent from the subject matter. Thetrial Court dismissed the plaintiffs action. On appeal-
Sri Lanka Law Reports
(2005) 3 Sri L R.
HELD:The Trial Judge has failed to answer issues 1-7 raised by the plaintiff.Having answered only the issues of the defendant the trial Judge haserred in arriving at the finding that therefore the need does not arise toanswer the plaintiffs issues. This is a cardinal error.
Bare answers without reasons raised in a trial are not in compliancewith the requirement of section 187.
Bare answers to issues are insufficient unless all matters which arisefor decision under each head are examined.
Per Chandra Ekanayake, J.:
“The impugned judgment is not in conformity with the provisions of section187 and failure of the trial judge to examine the evidence and to answer theissues of the plaintiff has definitely prejudiced the substantial rights of theparties”
APPEAL from the judgment of the District Court of Matara.Cases referred to :
Dona Lucinahamy vs. Cicillinahamy – 59 NLR 214
Rohan Sahabandu for plaintiff – appellant.
N. R. M. Daluwatte, P. C. for defendant – respondent.
Cur. adv. vult.
October 20, 2005.
CHANDRA EKANAYAKE, J.This is an appeal preferred by the Plaintiff – Appellant (hereinaftersometimes referred to as “the Plaintiff” from the judgment of the learnedAdditional District Judge of Matara dated 02.10.1991 moving to set asidethe same and for the reliefs prayed by the Plaintiff in the prayer to theplaint.
The Plaintiff has instituted this action in the District Court of Mataraseeking inter alia, a declaration of title to the subject matter viz : LotNo. 3 of the land called and known as “Gederawatta” situated in Welihena
Somadasa (Chandra Ekanayake, J.)
morefully described in paragraph 3 of the plaint, a declaration forcancellation of the deed of mortgage bearing No. 36791 dated 24.03.1960on receipt of Rs.500 by the Defendant, damages as averred in sub-paragraph (3) of the prayer to the plaint and for ejectment of the Defendantand all those holding under him from the subject matter.
The Defendant – Respondent (hereinafter sometimes referred to as “theDefendant”) by his amended answer dated 26.05.1982, whilst admittingthe jurisdiction of this Court and averments in paragraph 3 and 4 of theplaint specifically denied the accrual of a cause of action and the rest ofthe averments in the plaint and prayed for a dismissal of the Plaintiff’saction, for a declaration that the Defendant be declared entitled to theaforesaid rights mentioned in the amended answer. After two abortive trials,a trial de novo had commenced on 30.01.1990. On this day both partieshad admitted that the subject matter was owned by the Plaintiff as averredin paragraph 4 of the plaint and that M. P. Carolis and Lokuhamy by deedof mortgage bearing No. 27453 dated 01.07.1946 had mortgaged same toone M. P. Solomon and that he had re transferred the Mortgage to M. P.Somadasa, the Defendant in this case by deed bearing No. 36791. Casehad proceeded to trial on issues 1 to 7 raised on behalf of the Plaintiff andissues 8 to 11 raised on behalf of the Defendant.
The Plaintiff’s case had been concluded with her evidence. TheDefendant, Registrar of the District Court of Matara one S. P. Gunapalaand one M. Gamage Gunapala (Secretary of the Conciliation Board ofGodapitiya) had testified for the case of the Defendant. Thereafter theimpugned judgment had been pronounced by the learned judge dismissingthe Plaintiff’s action.
On a careful consideration of the judgment it is found that he hascorrectly identified the question for determination as whether there hadbeen a settlement with regard to this land dispute before the ConcilliationBoard as contended by the defendant. The Learned Judge while observingthe failure on the part of the Plaintiff to call any witnesses to place evidencewith regard to the settlement arrived upon between the parties before theConciliation Board in application No.297 had proceeded even to considerthe documents marked V2 and V3 being documents pertaining to thesettlement arrived upon by the parties before the Board and the certificateof settlement issued by the Board respectively. But the learned Judge has
Sri Lanka Law Reports
(2005) 3 Sri L R.
From the judgment it is clear the that the learned Judge has totallyfailed to answer issues 1 to 7 raised on behalf of the plaintiff. Havinganswered only the issues of the defendant the learned Judge has erred inarriving at the finding that therefore the need does not arise to answerplaintiff’s issues.
In the case of Dona Lucihamy vs. Cicilinaham/’* it was held that:
“Bare answers without reasons, to issues or points of contestraised in a trial are not in compliance with the requirementof the section 187 of the Civil Procedure Code.”
Per L. W. De Silva, A. J. at 216 ;
” Bare answers to issues or points of contest- whatever may bethe name given to them – are insufficient unless all matters whicharise for decision under each head are examined.”
In the instant case the learned Judge has not only failed to give reasonswhen answering the issues, but totally failed to answer issues 1 to 7, andin my view which is a cardinal error committed by the learned Judge andtherefore the judgment is not in conformity with section 187 of the CivilProcedure Code.
Section 187 thus reads as follows
“The judgment shall contain a concise statement of thecase, the points for determination, the decision thereonand the reasons for such decision ; and the opinions ofthe assessors (if any) shall be prefixed to the judgmentand signed by such assessors respectively.”
answered issues 8 to 11 raised on behalf of the defendant in his favour andhas proceeded to record as follows : (As appearing at page 379 of thebrief).
Felix Premawardane vs
Basnayake and Others
For the above reasons I conclude that the impugned judgment is not inconformity with the provisions of the above section and failure of the trialJudge to examine the evidence and to answer the issues of the plaintiffhas definitely prejudiced the substantial rights of the parties.
In those circumstances this Court is left with no alternative but to ordera retrial. Accordingly, the appeal is allowed and the impugned judgment ofthe learned District Judge is hereby set aside. A trial.de novo is herebyordered and the learned District Judge is directed to conclude the trial asexpeditiously as possible. Each party must bear thei.r own costs so farincurred, both here and in the Court below.
The Registrar of this Court is directed to forward the record in Case No.289/SPL. to the respective Court forthwith.
RANJITH SILVA J. – / agree.
Trial de Novo ordered.