115-NLR-NLR-V-74-A.-T.-DURAIAPPAH-Appellant.-and-C.-X.-MARTYN-and-3-others-Respondents.pdf
Duraiappah v. Martyn
<S1
1971 Present : H. N. G. Fornando, C.J., G. P. A. Silva, S.P.J., and
Samerawiekrarae, J.
A. T. DURAIAPPAH, Appellant, and C. X. MARTYN and 3 others.Respondents
Election Petition Appeal No. 4 of 1970—Jaffna
Parliamentary election—Election petition—Ballot papers—Whether counting agentsare entitled to examine them—Re count of votes—Circumstances when ElectionJudge will not order such re-count—Whether Election Judge can reject ballotpapers as being invalid—Postponement of trial of election petition—Considerations applicable before it can be granted—Effect of production of amedical certificate of petitioner's illness—Charges made in election petition—Ko evidence led on the charges—Order of dismissal of the petition—Validity—Ceylon (Parliamentary Elections) Order in Council (Cap. 3SJ), as amendedby Act No. 0 of 1970, ss. 4S {/'), 49 (1), SOC.
The Parliamentary Elections Order in Council does not entitle countingagents to examine ballot papers, save in tho special cases mentioned in thatbehalf in section -10. Counting agents, therefore, are not entitled to see themarkings on all the ballot papers which aro ultimately counted as valid by thoReturning Officer.
An application for a re-count of votes will not be allowed by an ElectionJudge if tho Returning Officer’s evidence satisfies the Judge that tho originalcount was virtually a proper and correct count. It would appear that therehas been no case in England in which a Court ordered a re-count after twocounts by a Returning Officer had shown on almost identical result.
Quaere, whether, on a re-count ordered by an Election Judge, ballot paperscannot bo rejected as being invalid under sub-section (I) of section 49 of theParliamentary Elections Order in Council.
When an application is made for tho postponement of tho trial of anelection petition, section SO C of the Parliamentary Elections Order in Council,as amended by Act No. 9 of 1970, requires the Election Judge to make everyendeavour to conclude tho trial within 6 months of the presentation of thoPetition. This statutory duty imposed on the Judge thus requires him toscrutinizes with particular caro tho grounds upon which tho postponementof a trial is requested.
Where tho petitioner leaves Ceylon after retaining Counsel to appear forhim at the trial of the election petition, and application is made somo daysafterwords by tho Counsel on the trial date for a postponement on the groundthat ho has no instructions relating to all the matters in issue in tho case,somo explanation is necessary' to rebut the inference that tho petitioner’spurpose in leaving Ceylon was to delay tho trial. In tho present case, therewas nothing to show that the trial on the charge of an illegal practice couldnot proceed in the absence of the petitioner.
When a medical certificate is issued by a medical practitioner outside theCourt's territorial jurisdiction, in regard to a person who is also outside thatjurisdiction, tho truth of statements in tho certificate cannot bo tested in thenormal manner by summoning tho practitioner to givo ovidenco in Court andby ordering tho "potient ” to bo examined by another Doctor. Tho absence,therefore, of an affidavit from t he Doctor who issued tho certificate.is of specialimportance when the question whether a postponement may be granted on thebasis of tho certificate is considered.
LXXIV—21.
!•K 8340-2.255 (1/72)
Duraiappah v. Martyn
•492
'Where, in an election petition, no evidcnco is led on the charges, thepetition must bo dismissed, unless there is reason to suspect that tho petitionwas abandoned collusively, dishonestly or fraudulently. The failure to adducoovidenco cannot bo treated as a case of an application to withdraw thopotition.
ElECTION Petition Appeal No. 4 of 1970—Jaffna.
The 1st respondent was elected as a Member of Parliament at ageneral election. Thoro wero two other candidates, one of whom was thepetitioner-appellant, who was defeated b}’ tho 1st respondent by amajority of 5G votes. After tho count of tho votes, a re-countwas made by tho Returning Officer on the application of one of thecounting agents. Thero was a disparity of 3 votes between the originalcount and tho ro-count. Tho petitioner filed an Election Potitionpraying (1) for a re-count and a declaration that tho petitioner was dulyelected, (2) for a determination that the election of tho 1st respondentwas void on tho ground that he had boon guilty of an illegal practiceat the Election.
Tho trial began on 25th November 1970, when evidence was ledregarding the proceedings at the count on tho Polling Day. When, thotrial was resumed on the following day, Counsel for tho petitionersubmitted a medical certificate on behalf of tho petitioner and movedfor ft postponement, stating that, in regard to the charge of illegalpractice, he had no instructions and was unable to proceed with’ thecase in the absence of the petitioner. Tho medical certificate concerningthe petitioner’s illness was issued on 1 StH November 1970 by a medicalpractitioner at Thanjavur. The application for postponement wasrefused by tho Election Judge, who then dismissed tho election potitionon the grounds (1) that tho application for re-count of votes could notbo granted and (2) that no evidence was placed by the petitioner inregard to tho charge of illegal practice. The petitioner then filed thepresent appeal.
N. Satyendra, with V. Basnayake and V. Jegasothy, for the pctitioncr-appollant.
Ranganalhan, Q.C., with P. An va rat n a raj ah, Q.C., V. Martyn,
R. Rajasingham, B. J. Fernando, Nimal Senanayake, K. N. Chokey,
M. Siuaraja-singham and Bomesh de Silva, for tho 1st respondent-respondent-.
Mervyn Fernando, Senior Crown Counsel, with E. D. Wikramanayake,Crown Counsol, for tho 2nd and 3rd respondents-respondents.
G, Molilal Nehru, for tho 4th respondent-respondent.
Cur. adv. t>ull.
R. X. G. FERXAXDO. C.J.—Duraiappah v. Mariya
4 £3
July 28, 1971. H. N. G. Fekxaxdo, C.J.—
At the Parliamentary' General Election of 1970, the choice for the votersof Electoral District No. 7S—Jaffna—lay between three candidates—
a retired District Judge,
a Proctor and
a Queen’s Counsel of long standing.
After the count of the votes, a re-count was made on the applicationof one of the counting agents, the number of the votes as counted beingas follows :—
The 1st Respondent was accordingly' declared elected Member ofParliament for the Electoral District. But the petitioner filed anElection Petition praying :—
for a re-count, a determination that the 1st Respondent was
not duly' elected or returned, and a determination that thePetitioner was duly elected and ought to have been soreturned ; and
for a determination that the election of the 1st Respondent was
void, the ground for this part of the prayer beiug that the1st Respondent bad been guilty of an illegal practice at theElection.
The Election Judge, after trial of the Petition, made order dismissingthe Petition, and thereafter certified his determination and made areport in terms respectively of ss. SI and S2 of the Elections Order inCouncil. This appeal was against that order and determination.
In regard to the prayer in the Petition to which we have firstly' referred,the learned Election Judge declined-to order a re-count, and if he wascorrect in so declining, the Petitioner was not entitled to thedeterminations whicu might have followed upon such a re-count.Counsel for the Petitioner however argued that one of the reasons onwhich the Election Judge relied for refusing a re-count was erroneousin law, the reason being that on a re-count ordered by the Court, ballotpapers cannot be rejected as being invalid under sub-section (1) of s. 49of the Order-in-Council. Counsel submitted that this same questionhad also been wrongly decided by Pullc J.inthe case of Kaleel v. Themis1.We ourselves have not bccu able to reach an unanimous opinion
the 1st Respondentthe Petitionerthe 3rd Candidate
For
1st countRe-count
8,849..8,848
8,792..8,792
7,220..7,222
1 {1956) 53 N. L. if. 396.
4S4H. N. G. FEBNAXDO, C.J.—Duraiappah v. Martyn
as to whether (as Pulle J. held) a re-count ordered by an ElectionJudge will be a purely mechanical process, and we tliink accordinglythat the matter might be placed beyond doubt by an amendment ofthe Election law.
We are unable to agree, however, with Counsel for the Petitionerthat in the instant case the refusal to order a re-count was influencedby the opinion of the trial Judge on the question just mentioned.Frazer on Parliamentary Elections (3rd Edition p. 222) states the practicein England that an application for a re-count shall be supported byaffidavit showing the grounds for supposing that there has been' amiscount, and states also that where the majority is a very small onethe re-count is as a rule allowed almost as of course. The grounds onwhich the Petitioner here relied, although set out in the petition and notin an affidavit, were all considered and rejected by the trial Judge.For reasons which will presently appear, we have formed our ownconclusions upon an examination of the available evidence as to theprocedure followed by the returning officer and his staff. The Returningofficer testified in full detail to the opening of the ballot boxes in thepresence of the counting agents of the candidates, to the removal of thepapers from the boxes and the sorting of the marked papers, to thesetting aside in a “doubtful tray” of doubtful papers for personalexamination by the Returning officer himself, to the showing of papersto counting agents before their rejection as invalid, to the separationinto bundles of papers for the respective candidates, and to the countingand checking of these bundles. He testified also to a further specialchecking performed by himself and the assistant Returning officers,because the result appeared to be close, and to his own satisfaction withthe performance of their duties by his staff.
The testimony of the Returning officer was not in any way controvertedby the only witness for the Petitioner, who had been one of the countingagents. Indeed his evidence was that he was perfectly' satisfied withthe first count. The only matter which Counsel for the Petitionerurged in regard to the first count was that the counting agents had notbeen able to see the markings on all the ballot papers which wereultimately counted as valid. That in our opinion is not a complaint ofsubstance, because the Order in Council docs not entitle counting agentsto examine ballot papers, save in the special cases mentioned in thatbehalf in s, 49. We had no hesitation in concluding that the evidencedid not disclose any ground for supposing that there had been a mis-countbefore the results of the count were first announced. There couldhave been present only the possibility of human error, which wouldhave existed in the case of all the counts taken during the GeneralElection.
As to the re-count made on application therefor, tho Petitioner’scounting agent expressed in evidenco his opinion that the counting was
H. N. G. FERNAXDO, C.J.—Duraioppah v. JWartyn
4 85
dono too fast. But he admitted that this did not strike him duringtho re-count itself, and that ho did not make any complaint on thisscoro to tho Returning officer.
During tho original count, tho ballot papers had been sorted, checkedand separated, and tho papers cast for each candidate had boon placedin bundles of 500 papers. At tho re-count then, what had to bo donowas to repeat tho last stage of tho original count, which was to verifythat a cross had been clearly marked on each paper against the symbolof the candidate whose bundles were being counted, and to verify thocorrectness of tho original numerical counting of tho bundles. ThoReturning officer stated that, having regard to the time taken for there-count arid tho number of officers who checked and counted the jiapersin tho bundles, about 2 seconds would Iiavo been spent on tho checkingand counting of each ballot paper. No Bank clerk will agree with thePetitioner’s witness that the speed of this re-count was in any waycomparable to the speed with which Bank clerks make counts of currencynotes, for tho correctness of which they accept personal financialresponsibility.
As already shown, there was a disparity of 3 votes between the originalcount and the re-count. Tho evidence of tho Returning officor wasthat each of two bundles of 500 papers cast for the third candidate wasfound to contain 501 papers, and that his total became thus increasedby 2 votes ; and that one paper previously counted for the 1st Respondentwas rejoctcd as invalid, thus reducing his total by one vote. We arequite unable to agreo with Counsel’s submission that because of thisdisparity between the first and second counts tho Election Judge shouldIiavo ordered a further re-count.
This trifling disparity revealed only tho presence in this caso of thesort of minor error which is likely in any similar circumstances, and wasno ground for the supjiosition that a further re-count could possiblyhave shown tho return of the 1st Respondent to have been undue. InKaleel v. Themis, Pulio J. referred to the “invaluable assistance ” whicha re-count made by a Returning officer might provide to an ElectionJudge who has to decido whether or not to order a re-count. Therehas been that assistaivco in this caso, and it shows that tho originalcount was virtually a proper and correct count. Although invited byus to do so, Counsel for tho Petitioner was unable to refer us to anycaso in England in which a Court ordered a re-count after two counts bya Returning officer had shown an almost identical result.
^ to the second prajer in the Election Petition, namely that theelection of tho 1st Respondent bo declared void on tho ground that hehad committed an illegal practico, thero was in fact no adjudication bytho trial Judge on tho question whether or not tho 1st Respondent hadcommitted tho illegal practico. After tho evidence relating to tho
K 9340—(1/72)
4SG
H. X. G. FERNANDO, C.J.—Durniappah v. Martyn
matter of the re-count had been adduced, Counsel for the Petitionermoved for a postponement and this was refused by the trial Judge.Thereupon Counsel stated that "in tho abscnco of the Petitioner, hohad no instructions and was unable to proceed with the case Thusthe order of dismissal in relation to tho second praj-er in tho petitionwas made on tho basis that no ovidence was led on tho charge relevantto this prayer. Wo shall consider later tho arguments of Counsel withregard to tho propriety of an order of dismissal in such circumstances.But in view of certain other submissions made on behalf of tho petitioneras to tho refusal of tho postponement, it is our somewhat distastefulduty to refer to an earlier episode in this case.
On 21st August 1970 the trial of the petition was fixed for 7th November1970. Thereafter the petitioner and three of the respondents filed theirlists of witnesses, and summons were accordingly served. On 31stOctober 1970 the agent for the Petitioner filed a Medical Certificate andmoved for the postponement of the case for another date. The contentsof the Certificate are set out below :—
"Dr. S. Eajendran,Trichy,
Sc., M.B.B.S.'27.10.70.
This is to certify that Thiru, A. T. Durayappah of Jaffna is sufferingfrom Gastritis (pain in the epigastium) and undergoing treatment.He is not in a fit condition to move about. Advised absolute rest andtreatment for four weeks from 27.10.70 for the complete restoration ofhis health.
(Sgd.) S. Eajendran,
Regd. No. 1549S,
Dr. S. Eajendran, B.SC… M.B.B.S., CivilAsst.- Surgeon, Govt. Head QuartersHospital, Tiruchinopolli. ”
This motion was taken up for inquiry on 2nd November 1970, whensubmissions were made b3‘ Counsel appearing for the petitioner and the1st Respondent respectively. It is unfortunate that in tho course of thediscussions which then took place the learned trial Judge made thesarcastic remark “ He (petitioner) has gone to India to fall sick ”, andthat Counsel for the 1st Respondent made the following remarks :—
“ My Proctor overheard a conversation three weeks ago between thepetitioner and a supporter of liis that the 7th November 1970 wasastrologically not a good.day for the petitioner. It was freelymentioned to us by one or two in the law library that the petitionerwould make an application for a date ”.
Tiiis application for a postponement was refused by the order of thotrial Judge made on 2nd November itself. This order contains a brief
H. X. G. FF.RXAXDO, C. J.—Duraiappah u. jtlarlyn-JS7
statement of the reasons why the trial Judge was not prepared to act onthe Medical Certificate, and the remaining paragraphs of the order areset out below :—
“ But apart from the Medical Certificate there is a situation whichhas arisen, which necessitates that the trial be postponed. For Iunderstand and I am informed by the Registrar of this Court,that there is an election trial proceeding in Jaffna and suitableaccommodation cannot be made for the Judge to try this petition inJaffna on the 7th of tliis month. Therefore in these circumstancesthe election trial must be put off for another date. I would thereforere-fix this trial for the 25th of November 1970.
The petitioner will pay 150 guineas to the 1st respondent, 50 guineasto the 2nd and 3rd respondents and also 50 guineas to the 4threspondent. ”
It. is apparent from these paragraphs that the trial Judge was aware on2nd November that, quite independently of the petitioner’s motion for apostponement, this trial had to be re-fixed for a date later than 7thNovember to suit the convenience of the Court, and that the trial waspostponed to 25th November to suit the Court-
In these circumstances, it seems to us that there was no need whatso-ever to rule upon the petitioner’s postponement motion or upon theveracity or accuracy of the Medical Certificate filed therewith. If thotrial Judge was aware before proceedings commenced on 2nd November,that a re-fixing of a trial date was in any event imperative, he shouldhave so informed Counsel at the outset. But at the least he was aware ofthis necessity before he made his order on the petitioner’s motion andthere was thus no reason at all for making that order. Ultimate!}' homade the further punitive order for the payment by the petitioner of 250guineas as costs, presumably of the hearing of the motion for thepostponement-
Be it noted that this motion was filed and taken up for inquiry, not on atrial date when Counsel would have been retained to conduct the trial ;it was instead the case that Counsel appeared for the respondents on2nd November only to oppose the petitioner’s motion for apostponcment.We are quite unable to understand why it was thought fit to penalizethe petitioner so heavily merely because Court and Counsel spent an ■hour or two in discussing the petitioner's motion.
The punitive nature of the order of costs, is all tho less defensiblebecause of the necessity for the Judge,' of In's own motion, to re-fixthe trial for the 25th November.
Having regard to tliis episode, Counsel for the petitioner submittedwith commendable restraint that the proceedings of 2nd Novembershowed at the least an appearance of bias against the petitioner, and
488
H. N. G. FERNANDO, C.J-—-Duraiappah v. Afarlyn
that accordingly it would be a denial of justice now to rely on findings offact reached by the trial Judge in his ultimate order dismissing thepetition. We bore that submission in mind in considering the mattersrelevant to the question of a re-count, and did so also in considering thecorrectness of the ultimate order of dismissal.
As already stated the trial was re-fixed for 25th November. Theproceedings on that date commenced with the following statement madeby Counsel appearing for the petitioner :—
“ May I have Your Lordship’s permission to place the case forthe petitioner. ”
Counsel- then proceeded to refer to the two grounds in the petition”,firstly the claim for a re-count, and secondly, the commission of an illegalpractice by the 1st Respondent. He then made certain submissions oflaw relevant to the question of a re-count, and Crown Counsel and Counselfor the 1st Respondent also made submissions relevant to the samematter. There was also some discussion between the Court- and Counselfor the petitioner, after which Counsel stated that he would call oneMr. Nadarajah.
Mr. Nadarajah then gave evidence regarding tlie proceedings at thecount on the Polling Day ; and the Returning officer also gave evidence asto the same matters, having been called by Crown Counsel. The proceed-ings of 25th November then terminated and the trial was resumed on the26th. On this day Counsel appearing for the petitioner commencedwith the following statement :—
" My Lord, in regard to the second charge I am unable to proceed inthe absence of my client because lie is not fit to attend Court.
In view of that I respectfully ask Your Lordship for a postponementof the trial. To support that I am producing a medical certificate. ”
The terms of the Medical Certificate were as follows :■—-
This is to certify that I have examined Sri A. T. Doraiappa, Proctor,S.C., Jaffna and find that he is suffering from peptic ulcer.
He is advised immediate admission in the hospital for necessarytreatment.
Thanjavur-1,Phone : 377.
“Residence & Consulting Room," Shanthi”
Sri Sivaji Nagar,
Dr. M. V. Bhatt, M.S., F.I.C.S.,Prof, of Surgery,
Thanjavur Medical College, andSurgeon, T.M.C & R.M.Hospitals, Thanjavur-1.
18.11.70.
H. N. G. FERNANDO, C.J.—Duraiappah v. Mortyn
489
He may take about three weeks before he is discharged from thehospital and naturally will not bo able to attend Courts during thisperiod.
(Sgd.) M. V. Bhatt,
18.11.70.
Dr. M. V. Bhatt, M.S., F.I.C.S., CivilSurgeon, R. hi. Hospital and Professor ofSurgery, Tanjore Medical College,Thanjavur. ”
Let us now state the reasons for our firm conclusion that theapplication made on 26th November for a postponement was properlyrefused.
(a) Section 80 C of the Order in Council, as recently amended, requiresthat an Election Petition shall be tried as expeditiouslyas possible, and that every endeavour must be made to concludethe trial within G months of the presentation of the Petition.This statutory duty imposed on an Election Judge to ensure anexpeditious trial is a consideration which docs not apply inordinary civil litigation, where applications for postponementsare considered mainly (or even entirely) with reference onlyto the interests of the parties. In civil litigation, a postpone-ment could be allowed almost as of course if all parties consent;whereas in the case of an Election Petition, consent of the partieswould not bo a sufficient ground for allowing a postponement.The statutory duty imposed on an Election Judge by S. SO Cthus requires him to scrutinize with particular care the groundsupon which the postponement of a trial is requested.
(5) In this instance, the postponement was sought on November 26thon the groimd that Counsel was unable to proceed withoutinstructions from the Petitioner, who was stated to be absent inIndia and unable through illness to return to Ceylon.
Applications for postponements had twice previously beenmade to the Election Judge, with the support of medical certi-ficates purporting to have been issued by one Dr. Rajendran ofTiruchmopolli. The first of these certificates was dated 27thOctober, and the agent for 1st Respondent had notice of it on31st October, the motion for the postponement being also filedon the 31st. The second certificate was dated 14th November,and the 1st Respondent’s agent had notice of it on the 15th,the motion for postponement being filed on the IGth.
On 26th November, however, the application for a post-ponement was made without prior notice to the 1st Respondent,although the medical certificate on which this appb'cationdepended had been issued on ISth November. Having regard tothe prompt transmission to the Petitioner’s agent of the earlier
490
H. N. G. FERXAXDO, C.J.—Duraiappah v. Martyn
two medical certificates, it is reasonable to suppose that thecertificate dated ISth November could have been transmitted tothe Petitioner’s agent with equal promptness. But the state-ments to Court on 26th November by Counsel for the Petitionerconclusively establish that the medical certificate dated ISthNovember was handed to the Petitioner’s agent onlj^ on the 25th.There was no explanation before the trial Judge for this delay incommunication between the Petitioner and his own agent.Indeed the Petitioner’s Counsel himself apparently did notknow on 25th November, when the trial commenced, that amedical certificate would be available to support an applicationon the next day for a postponement of the trial.
The statements made on 26th November by Counsel forthe Petitioner which we are content to accept, mean in substancethat the Petitioner left Ceylon on 26th' October 1970, havinginstructed his agent upon matters relevant to the prayer for are-count, but without necessary instructions in regard to theprayer that the election be declared void. This was at theleast strange conduct on the part of a Petitioner, himself alawyer, who had filed his Election Petition in June 1970, andwho was aware when he left Ceylon that his Petition was fixedfor trial within about 12 days. Even in ordinary civil litigation,a Court can rightly assume that such reinissness of a part}- isequivalent to an admission of the weakness or futility of hiscase.
We know of no case hitherto in which Counsel had beenretained to appear at a trial without instructions relating to allthe matters in issue in the case. If the Petitioner, who wasvirtually a party-plaintiff, placed his C'oujisoI in this lufiqueposition, some explanation for his extra-ordinary conduct wassurely necessary to rebut the inference that his purpose inleaving Ce3'lon was to delay the trial of his Petition.
In Syadu Varusai v. Weerasekeram 1, Sansoni J. cited andapproved a long scries of decisions holding that where a post-ponement is refused, it is Counsel's “ clear duty to appear forhis client and conduct the case which has been entrusted tohim ”. The only exception to this rule is a case in wliich Counselis retained for the sole purpose of suj^portmg a motion for apostponement._
(d) As already stated, two medical certificates purporting to havebeen issued by one Dr. Bajendran on 27th October 1970, andon lit!) November 1970, had been filed in support of two previousapplications for postponements. The application made on25th November was supported by a medical certificate issued bya different Doctor, who issued it on ISth November.
1 (755(7) 5$ iV. L. K. SO.
If. X. G. FJIRXAXDO, C.J.—Duraiappah v. Martyn
491
Although the first two applications were refused by the trialJudge, the agent of the 1st Respondent apparently anticipatedthe possibility of yet another application for a postponement ofthis trial. As a consequence of that anticipation, the 1stRespondent w as able to hare produced on 26th November twomedical certificates purporting to have been signed by the sameDr. Rajcndran. Just as much as Counsel for the 1st Respondentdid not suggest that the two certificates relied on by- thepetitioner had not in fact been issued by Dr. Rajcndran,petitioner’s Counsel too did not contend that the certificatesproduced on behalf of the 1st Respondent had not been sosigned by Dr. Rajendran. One of these latter certificatesissued bj' Dr. Rajendran (1 R 4) was in the following terms :—
“Dr. S. Rajendran,Trichy,
Sc., M.B.B.S.421.11.70.
This is to certify that Mr. M.D.B.L. Jayasundara,Accountant, Orienta Advertisers^ Ceylon is sufferingfrom Gastomotic Ulcer and undergoing treatmentfor the same. Advised rest and treatment for tendays from 21.11.70 for a complete recovery.
(Sgd.) S. Rajendran,
Regd. No. 16498.
21.11.70. ”
Jayasundera whose iiame is mentioned in 1R4 testified atthe trial that he was the Accountant of Orienta Advertisers,Cejdon, and that he obtained this certificate from Dr. Rajendranupon a mere statement to the Doctor that he was suffering fromsome stomach trouble.
This certificate (1R4) sufficiently establishes thatDr. Rajendran issued the certificate without being properlysatisfied of the identitj' of the person to whom the certificaterelates, and without-a phjsical examination of that person.This circumstance lets in at least a possibility .that thecertificate dated ISth November and given by one Dr. Bhattwas equally unreliable.
A Court will ordinarify have confidence in the truth of statements ina certificate wjiich appears to be issued by a responsible medicalpractitioner. But that confidence is in ordinary cases dependenton the fact that when such a certificate is produced, the Courthas a ready means to test the truth of the statements, bysummoning the practitioner to give evidence in Court and b}’ordering the “ patient ” to be exam fixed by another Doctor.But when a certificate is issued by a person outside theCourt’s territorial jurisdiction, in regard to a person who is also
H. N. G. FERNA.NDO, C.J.—Duraiappah v. Martyn
<92
outside that jurisdiction, the truth of statements in the'certificate cannot be tested in the normal manner. In theinstant case therefore, the absence of an affidavit from theDoctor who issued the certificate dated ISth November is ofspecial importance.
(/) The purport of the certificate dated ISth November is that thePetitioner was advised immediate admission into Hospital fortreatment for about three weeks, and that “ naturally ” i.e.,if the Petitioner is in Hospital, he will not be able to attend Courtduring the period of his treatment in the Hospital. The certi-ficate does not however state that the Petitioner was in factadmitted into Hospital; and if indeed the Petitioner did enterHospital as advised, a certificate as to his admission could havebeen obtained and furnished to the Court. There was noteven an affidavit from the Petitioner himself stating that hehad entered Hospital. Thus the certificate was of no value,because there was no material whatsover to indicate that thePetitioner had in fact entered Hospital, and the certificateprovided no acceptable explanation for the Petitioner’s extra-ordinary failure to instruct his agent and his counsel on mattersaffecting the charge of an alleged illegal practice.
(g) In the present case, the 1st Respondent challenged outright thetruth of the representation that the petitioner was ill and there-fore unable to attend Court. Tliis case is thus clearly distin-guishable from the two English cases which counsel for thepetitioner cited to us. In Maxwell v. Keun 1 the ground onwhich a postponement was requested was the fact that theparty was resident in India on official duty. In Dick v. Pillar 2the ground was the fact of illness. In each case the fact ofabsence, and the fact of illness, respectively, was admitted bythe opposite side.
Moreover, in each of the English cases, the party’s presence atthe trial was material, since lus evidence was essential for thepurposes of the case. But in the present case, there was nothingto show that the trial on the charge of an illegal practice couldnot proceed in the absence of the petitionei-. The affidavit insupport of that charge had been sworn, not by the petitioner,but by one W. P. Silva. This Silva was present in Court onsummons, and the fact that the petitioner had not instructedhis agent or his counsel to adduce Silva’s evidence is quiteinexplicable.
Counsel for the Petitioner lastly submitted that even if the postpone-ment of the trial was rightly refused, the Election Judge should not havedismissed the petition, but should instead have treated the case as being
»(192S) 1 K. B. 645.
(1943) 1 A. E.B. 627.
H. X. G. FERNANDO, C.J.—Duraiappah v. Martyn
493
•one in which the Petitioner desired to withdraw the petition; in hissubmission it was the duty of the Judge to follow the procedureprescribed in the Election Petition Rules for a case of proposedwithdrawal.
In Abraham Singho v. Gunaivardena1 Swan J. held that the functions ofan Election Judge under our Order in Council are purely judicial, andthat accordingly when no evidence is led on the charges the Judge is notbound to proceed any further and must dismiss the petition. We arein agreement with the reasons stated by Swan J. for that construction ofour law and for holding that certain English decisions to the contrary arenot applicable in Ceylon.
It would be quite unrealistic to regard the position which arose in theinstant case as being equivalent to the withdrawal of the “ charge ” in thepetition- Tins petitioner, far from seeking to withdraw the charge, hasexercised his right of appeal for the very purpose of securing a trial ofthat charge. We are satisfied that there is no reason to suspect that thepetition was abandoned collusively, dishonestly or fraudulently.
Swan J. made the following observation in the case just cited
" If Parliament thinks it necessary or desirable to add to or amendthore rules in order to meet a situation like the one that confronts mein this case, it is open to it to do so. ”
Although the Election Order in Council has been amended on morethan one occasion, Parliament has not taken the opportunity to providethat the failure to adduce evidence on a charge in an Election Petitionshould be treated as a ease of an application to withdraw the petition.There is an additional reason wh}7 we thought fit to adopt the conclusionstated by Swan J.
We have now stated our reasons for our order dismissing this appeal,which was made at the conclusion of the hearing. Since the order forcosts made by the trial Judge on 2nd November 1970 was in our opinionunfair to the Petitioner, we made no order as to the costs of thisappeal.
Silva, S.P.J. — I agree.Sasierawickrame, J. — I agree.
Appeal dismissed.
1 {1953) 54 N. L. R. 546.