In making the said order the learned Judge had observed that the Courthad granted adjournments on three occasions for the plaintiff to call thiswitness. Firstly on 31.10.2003, secondly on 23.02.2004 and finally on
On the last occasion the Court had given a final date to callthis witness upon an application made by the counsel for the plaintiff. Inhis order the learned Judge had made the following observations:
Sri Lanka Law Reports
(2006) 2 Sri L R.
In the instant case the examination-in-chief and the cross-examinationof the witness concerned, the auctioneer, had been already concludedand the learned counsel for the plaintiff moved for an adjournment on twooccasions only to re-examine the said witness. Accordingly it appearsthat a substantial portion of his evidence had already been recorded leavingonly the re-examination by the counsel for the plaintiff. In my view if thatwitness fails to appear in Court for the purpose of re-examination, eventhough three postponements had been given for the plaintiff to secure hisattendance, it is appropriate for the Court to dispose of the suit on meritson the available evidence.
In the Indian case of Rama Divakar Panikar vs. Bakari HydroseChennampillai(2) at 298 it was held that the words “notwithstanding suchdefault” in Order 17 Rule 3 (Section 145 of our Civil Procedure Code)clearly imply that the Court is to proceed with the disposal of the suit onmerits, in spite of the default upon such materials as are before it.
It appears to me that the words “the Court may, notwithstanding suchdefault, proceed to decide the action forthwith” must be construed strictly.The Court must proceed to decide the case on the merits on the verysame date according to law, if the Court in its discretion thinks furtherpostponements are unnecessary.
In the instant case the judge had exercised his discretion judicially andreasonably. The learned Judge had observed that the plantiff had repeatedlysought adjournments to call this witness. In any event a substantial portionof evidence of this witness had already been given, in that, the examinationin chief and cross-examination had been already concluded and only there-examination remains. Moreover, when the learned Judge had given afinal date to call this witness it was the duty of the plaintiff to get down thiswitness. It is to be noted that this action was instituted on 05.11.1997.
On a consideration of the matters set out above, I am satisfied that thelearned Judge is correct and had exercised his discretion correctly. Itherefore find that there is no merit in the submissions made on behalf ofthe plaintiff-petitioner. For these reasons I refuse to grant leave and theapplication for leave to appeal is dismissed with costs fixed at Rs. 7,500.
SOMAWANSA, J.(P/CA) — / agree.
Application dismissed.