New Eastern Bus Company Ltd and Another
NEW EASTERN BUS COMPANY LTD AND ANOTHERCOURT OF APPEAL.
CA 614/2006 (TRANSFER).
OCTOBER 27, 2006.
Judicature Act, No. 2 of 1978, sections, 46(1), 46(1)(d) ■ Application to transfera case from District Court of Amparai to District Court of Colombo – Expedient?- Circumstances ?
Sri Lanka Law Reports
(200$) 2 Sri LR.
The plaintiff-petitioner instituted action in the District Court of Amparai claimingdamages for injuries caused to him. The evidence of the Doctor and part of theevidence of the plaintiff-petitioner were recorded. The plaintiff-petitioner soughta transfer of the said case to the District Court of Colombo • On the groundsthat (1) he finds it difficult to travel to Amparai from his residence in Colombo byreason of injuries to his right leg (2) that all witnesses are from Colombo (3)his Counsel is also from Colombo.
The fact that almost all the witnesses for the plaintiff-petitioner have totravel from Colombo to Amparai cannot provide the sole ground of“expedience''.
The respondents urge that all their witnesses are from Amparai andthey will experience difficulties and hardship in travelling to Colombo.This court being obliged to address the interests of both is unable toaccept the fact of witnesses having to travel as a ground that will .be“expedient”.
“Expedient” in the context of section 46(1 )(d) means advisable in the“interest of justice". Nowhere in the judicial process is it held that torespond to the difficulties or inconvenience experienced by party litigantsis advisable in the interest of justice.
Per Wijeyaratne, J.
“In my view the inconvenience or difficulty experienced by a party litigantdue to poor health cannot be considered as a matter of interest of justice forthe reason that health conditions of people are highly variable depending ontimes ages and various other factors and if the process of justice system isvaried to suit such variable condition the system will lead to chaos’
APPLICATION for a transfer.
Case referred to:
Kurukulasuriya vs. M. M. Sahul (1987) 1 CAR 564.
Perera and Others vs. Hasheed and Others Vol Srikantha Law Reports 133.
Romesh de Silva, P. C. with Sugath Caldera for plaintiff-petitioner.Ronald Perera with Chandimal Mendis for defendant-respondent.
Cur. adv. vult.
New Eastern Bus Company Ltd and Another (Wijeyaratne, J.)
December 5, 2006.
WIJEYARATNE, J.This is an application for the transfer of an action instituted by thepetitioner in the District Court of'Ampara against the two defendant-respondents seeking to recover damages consequent to a collision of thevehicle belonging to the 1 st respondent and driven by the 2nd respondentcausing injury to the petitioner. The trial of the case has commenced andproceedings of the evidence of the Medical Doctor arid part of the evidenceof the plaintiff-petitioner only were recorded and the further trial refixed nottaken for various reasons like the negotiation for settlement and applicationfor postponement by the petitioner. As grounds of transfer the petitionerurges that due to his having undergone several surgeries, he finds it difficultto travel to Amparai from his residence in Colombo. He further states thatall the witnesses for the plaintiff are from Colombo who will be required totravel to Amparai to give evidence. The petitioner who states that even thecounsel for the defendant-respondents travel from Colombo Vand seeksthe transfer on the ground that it is expedient to transfer the case to theDistrict Court of Colombo subject to his meeting the costs of the travel ofrespondents as well as their witnesses.
The two respondents object to the transfer on grounds that the petitionerhas not established that such transfer would be in the interest of justiceand any order for transfer would cause severe disruption of empoyment ofthe 2nd respondent and cause severe financial loss to both of them. It istheir position that “interests of justice” would be served by continuance ofthe action in the District Court of Amparai.
When the matter came up for argument both parties agreed that thematter be disposed of by way of written submissions and tendered theirrespective submissions in writing.
Both parties concede that the application falls within the ambit of section46(1) (d) of the Judicature Act No. 2 of 1978 as amended. Thus the burdenlies on the petitioner to establish that it is so expedient to transfer thiscase from the District Court of Amparai to District Court of Colombo ongrounds he urged in his application. The grounds so urged are that-
Sri Lanka Law Reports
(2006) 2 Sri L ft
the petitioner finds it difficult to travel long distances by reason ofinjuries to his right leg; and
the witnesses almost all, are from Colombo who will be required totravel to Amparai.
The Petitioner does not state that he is medically advised not to travel,he only states that he was advised to rest his right leg and he finds itdifficult and inconvenient to travel more than five hours by car at a stretch.It is also an admitted fact that the plaintiff-petitioner’s cross examinationis towards the end with likelihood of it being concluded in one day. Dothese circumstances render the transfer expedient is the question thisCourt has to now determine.
The Learned President’s Counsel for the petitioner refers this Court tothe decision of R. C. Kurukulasuriya Vs. M. M. ShahuP and submits thatthis Court considering the fact that most of the witnesses have to travelfrom Matara to Kalmunai held it as ground to make order to transfer thecase from M. C. Kalmunai to M. C. Hambanthota. Perusal of the judgmentreveals that the fact of matter of the witnesses having to travel from Matarato Kalmunai was found to be an additional or contributory factor in makingthe order for transfer on the main ground that the Magistrate Court ofKalmunai conducted its proceedings in the official language of Tamil andthe permitted language of English without the facility of interpretation toSinhalese the only language the accused understood. And it wasconsidered expedient or in the interest of justice that the case be transferredto a Court where proceedings are conducted in a language the accusedunderstood.
The fact that almost all the witnesses for the plaintiff-petitioner have totravel from Colombo to Amparai cannot therefore provide the sole groundof “expedience". The respondents urge that all their witnesses are fromthe locality of the Amparai Courts and they will experience difficulty andhardship in travelling to Colombo. This Court being obliged to address theinterests of both parties, is unable to accept the fact of witnesses havingto travel as a ground that will be “expedient”.
The only other ground urged by the petitioner is the inconvenience orthe difficulties he experiences in travelling from Colombo to Ampara due tohis being required to rest his right leg. There is nothing to suggest that
Leslin Jayasinghe vs
movement of his leg or his traveling is totally ruled out or barred on medicaladvice. The question thus need be addressed is, whether" inconvenienceor difficulty in travelling due to the poor health of a party could constitite'expedience'. In Perera and Others Vs. Hasheeb and Others it was heldthat the expression “Expedient” in the context of section 46(1 )(d) means“advisable in the interest of justice”. Nowhere in the judicial process, is itheld that to respond to the difficulties or inconvenience experienced byparty litigant is “advisable in the interest of justice”. In my view theinconvenience or difficulty experienced by a party litigant due to poor healthcannot be considered as a matter of interest of justice for the reason thathealth conditions of people are highly variable depending on times, agesand various other factors.- And if the process of justice system is varied tosuit such variable conditions, the system will lead to chaos.
In all these circumstances, I am unable to hold that the petitioner hasestablished grounds that will render an order to transfer the case ‘expedienf.
Consequently the application is dismissed with costs.
MAJEED vs. NEW EASTERN BUS COMPANY LTD AND ANOTHER