Edwin v. De Silva
Present :Basnayake, C.J* and de Silva, J.EL. J. M. EDWIN et at., Appellants, and K. L. D. A. DE SILVA
et al., Respondents
S. G. 386—D. G. Galle, 1157 JX
S. G. 296—D. G. Galle, 1568jX
S. G. 288—D. G. Galle, 5512jL
Judgment—Pronouncement of it by Judge's successor—Conditions that must be satisfied—Civil Procedure Code, S3. 185, 186.
A judgment 'written and. signed by a Judge at a time when he has no juris*diction to do so and pronounced by his successor does not satisfy the require-ments of sections 185 and 186 of the Civil Procedure Code and cannot be re-garded as a valid judgment. 1
1 (1939) 41 N. L. P. 383.
BASItAYAKE, C. J.—Edvrin v. De. Silva
AT/S from three judgments of the District Court, Galle.
In S. C. 386—
W. Jayewardene, Q.C., with F. A. Abeyewardene. and IP. Jl. M.Daluwatte, for Plaintiff-Appellant.
IP. E. Weerasooria, Q.C., with W. D. Gunasehera, for Defendant-Respondent.
In S. C. 296—
S. Nadesan, Q.C., with I. Mohamed, C. Jayasinghe and M. T. M.Sivardeen, for 2nd Defendant-Appellant.
E. A. G. de Silva, with N. 7i. JIT. Dalnwalte, for Plaintiff-Respondent.
H. TP. Jayewardene, Q.C., with ilf. L. S. Jayasehera and C. P. Fernando.for 1st Defendant-Respondent.
In S. C. 288—
C. jRanganatkan, with 3T. T. ilf. Sivardeen, for Plaiaitiffs-Appellants'.M. Rafeelc, for Defendants-Respondents.
[The following judgment was delivered in S. O. 380 :—]
December 9, 1959. Basnayake, C.J.—
Learned counsel for the appellant submits that judgment has not beenpronounced in the instant case in accordance with the requirements of theCivil Procedure Code. At the termination of the trial before the Addi-tional District Judge he announced in open court that he would pronouncejudgment on 28th March 1956. Shortly after he reserved judgment thetrial Judge appears to have been transferred to another station. Thejudgment was not delivered on that day nor on any of the subsequentsixteen dates, extending over a year, for which it was refixed for delivery.It was finally pronounced on 10th July 1957 by the District Judge towhom it had been despatched by post, signed but not dated by the Judgewho heard the case but who no longer had jurisdiction to exercise thefunctions of a Judge in the Additional District Court of Galle. Althoughthe Judge who heard the case appears to have been specially appointedas Additional District Judge of Galle on 10th July 1957 to enable himto deliver judgment in the case he did not do so. It has been repeatedlyheld by this court that the non-observance of the provisions of sections185 and 186 of the Civil Procedure Code vitiates a judgment.
BASNAYAKE. C.J.—JSd ain. v. ~De. Silva
Apart from the fact that the judgment was written and signed by theJudge when he was notan Additional District Judge of Galle and had nojurisdiction to do so it was pronounced by the District Judge who wasnot his successor. The case does not therefore fall within the ambitof section 185.
Learned counsel for the respondent urged that we should adopt thecourse of sending this case back to the lower court so that the Judge maypronounce and date the judgment in accordance -with the requirementsof the Civil Procedure Code as the trial had extended over a period ofnearly two years and it would cause hardship to the parties if a retrial isordered at this stage. We are unable to accede to that request, for quiteapart from the legal defect there is the very unsatisfactory feature thatthe judgment was written by the Judge who heard the case more thanfifteen months after the termination of the trial. Even if the Judgerefreshed his memory of the facts by reading the typescript of theevidence after such a long interval of time he is bound to have lost theadvantage of seeing and hearing the witnesses give evidence and theimpression created by them could no longer be vivid in his mind. Ajudgment of a Judge of first instance based on a mere reading of thetypescript is not of the same value to this court as a judgment deliveredwhile the recollection of the trial and of the demeanour and attitude ofthe witnesses and the impression created by them on him are fresh in hismind. In our view the judgment must be set side and the case shouldgo back for a retrial. We accordingly set aside the judgment anddecree and direct that the case should be sent back for a trial de novo.
The rule is that the costs should follow the event, but in this casecounsel for the respondent does not oppose the course we propose to take.Although the judgment has been set aside, the respondent is in no wayresponsible for the failure of the Judge to observe the requirements of thelaw and his counsel does not maintain that there is no defect. In thecircumstances we would be justified in departing from the ordinary ruleand not allowing the costs of the appeal. There will, therefore, be nocosts of the appeal but the costs of the abortive trial will abide the finalresult of the case.
de Silva, J.—I agree.
Case sent back for retrial.
[The following judgment was delivered in S. 0. 296 :—]
December 9, 1959. Basnayake, C.J.—
Learned counsel for the respondent raises a preliminary objection to thehearing of this appeal on the ground that the judgment against which theappellant has appealed has not been pronounced in accordance with therelevant provisions of the Civil Procedure Code. It would appear that■while this case was partly heard by the Additional District JudgeMr. Conrad Perera, he was transferred from Galle after the hearing on
BASNAYAKE, C.J.—Edwin v. He Silva
7th December 1955. He nevertheless concluded the hearing on 21stApril 1956 by virtue of an ad hoc appointment as Additional DistrictJudge, Galle. He announced at the close of the trial that the judgmentwould be delivered on 31st July 1956. But the judgment was notpronounced on that date and although ten subsequent dates had beenannounced for the purpose it was not pronounced till 6th June 1957,when Mr. Perera’s successor’s successor pronounced in open court ajudgment prepared by Mr. Perera between 9th May 1957 and 17th May1957. Although he had been appointed an Additional District Judge ofGalle to enable him to pronounce the judgment on 6th June 1957 hedoes not appear to have proceeded to Galle for the purpose. The judg-ment is signed by Mr. Perera but not dated by him,- A judgment writtenand signed by a Judge at a time when he has no jurisdiction to do so andpronounced by his successor does not satisfy the requirements of theCivil Procedure Code and cannot be regarded as a valid j udgment of thecourt. In quite a number of appeals (some of which are reported) wliichhave come up before us recently we have so held. There are also earlierdecisions of this court (both reported and unreported) to the same effect.Another disturbing feature of this case is the long delay that has occurr-ed between the conclusion of the hearing and the preparation of the judg-ment. Such a judgment, even if it had been pronounced by the Judge inaccordance with the requirements of the Code, and with jurisdiction to doso, is not of the same value to a court of appeal as a judgment pronounc-ed shortly after the trial when the impression created on the Judge’smind by the evidence and the witnesses is still fresh.
The judgment and decree must therefore be set aside and the case sentback for a retrial. We accordingly set aside the judgment and decreeand direct a retrial. We do so with reluctance as this action was com-menced so far back as 1953, but in the circumstances there is no othercourse open to us. There will be no costs of appeal.
de Sieva, J.—I agree.
Case sent back for retrial.
[The following judgment was delivered in S. C. 288 :—]
December 17, 1959. Basnayake, C.J.—
Objection to the hearing of this appeal is taken by learned counsel forthe appellant on the ground that the provisions of the Civil ProcedureCode relating to the pronouncement of the judgment have not beenobserved. The Additional District Judge Mr. G. Thomas who heard thecase reserved judgment on the 26th February, 1957 and fixed 1 Sth March,1957 as the date on which the judgment was to be pronounced.It appears that between those two dates he was transferred from Galle.The judgment signed by him but undated was forwarded more than a
BASNAYAKE, C. J.—Edwin v. De Silva
year later with a letter dated 23rd June, 1958 to his successor who pro-nounced judgment on 27th June, 1958 and dated it in open court. Al-though Mr. Thomas was appointed as Additional District Judge of thatcourt for the purpose of delivering the judgment he did not proceed to Galleto exercise the functions of Additional District Judge of Galle on that day.The judgment was signed by Mr. Thomas at a time when he was not aDistrict Judge of that court and had no jurisdiction to exercise the func-tions of a District Judge of Galle. No judgment having been pronouncedaccording to law the proceedings must be quashed. There is a furtherobjection to this judgment which has been prepared more than a yearafter the conclusion of the hearing. The judgment of a judge of firstinstance written after the impression created by the witnesses has fadedis not of the same value to the appellate court as a judgment written whilethat impression is fresh. We accordingly quash all the proceedings onand after 19th June 1956 and remit the record with a direction that thecase be reheard.
de Silva, J.—I agree.
Case sent bach for retrial.
A. K. J. M. EDWIN et al , Appellants, and K. L. D. A. DE SILVA et al Respondent