046-SLLR-SLLR-1997-V-1-ABDUL-MUNAF-v.-MOHAMED-YUSUF.pdf
ABDUL MUNAF
v.MOHAMED YUSUF
COURT OF APPEALISMAIL J.
CA./L.A. 291/96.
D.C. KANDY 11820/P.
FEBRUARY 19, 1997.
MARCH 11,31, 1997.
Civil Procedure Code – List of witnesses not filed at least 15 days prior to trialdate – Sections 175(1) and 121(2) of the Civil Procedure Code – Discretion ofcourt.
The plaintiff respondent instituted Partition Action on 17.11.86, after several datesof postponement trial commenced on 17.1.96 which was the 4th date fixed fortrial. The plaintiff respondent gave evidence and closed his case on this date.After several dates of postponement the trial was resumed on 27.8.96 when 'M‘gave evidence on behalf of the defendant petitioner. Thereafter the trial waspostponed for 5.11.96. On this date when witness 'S’ was called the plaintiffrespondent objected, as the list of witnesses has not been filed at least 15 daysprior to the date fixed for the trial.
The District Judge upheld the objection.
On leave being sought –
Held:
Section 121(2) requires the party to an action to file a list ofwitnesses/documents 15 days before the date fixed for trial after notice to theopposite party. The defendant petitioner has filed his list dated 10.1.96, on29.1.96 after the plaintiff respondent had closed his case on the 4th date of Trial.
The trial Judge has found that the defendant petitioner has not sought to explainthe delay in filing the list and that it would cause prejudice to the plaintiffrespondent if a witness listed at this stage of the triad is permitted to be calledafter he has closed his case.
The learned District Judge has in the circumstances of this case exercisedhis discretion properly in refusing to permit the evidence of witness ‘S' to be led.
The judgment and the observations of Gratiaen J., in Girantha v. Maria cannothelp the defendant petitioner as the Court was there placing an interpretation onthe repealed Section 121 which did not then specifically require the filing of a listof witnesses 15 days before the date of Trial.
APPLICATION for Leave to appeal.
Cases referred to:
Muttar v. Kathirasapillai -14 NLR 144.
Girantha v. Maria – 50 NLR 519 – distinguished.
Faiz Musthapa P.C., with M. S. M. Suhaidfor defendant-petitioner.
ShibtyAziz, P.C., with A. L. N. Mohamed tor plaintiff-respondent.
Cur. adv. vult.
May 05,1997.
ISMAIL, J.
The plaintiff-respondent instituted an action bearing No. P11820 inthe District Court of Kandy on 17.11.86 seeking to partition the landand premises bearing No. 45, King Street, Kandy. He set out the titlein the plaint and stated that the defendant-petitioner and himself werethe co-owners of the said land and premises in equal shares.
The defendant-petitioner filed a statement of claim and anamended statement of claim claiming prescriptive title to the entiretyof the said land and premises. He stated as follows in his amendedstatement of claim;
That the defendant-petitioner and the plaintiff-respondent hadpaper title to the said land and premises in equal shares bybecoming the co-owners thereof on deed bearing No. 6610dated 18.2.1973 attested by S. M. Musthapha, Notary Public.
Shahul Hameed, the father of the defendant-petitioner, enteredinto an informal agreement to purchase the respondent’s sharefor a sum of Rs. 100,000/-. The said Shahul Hameed and theplaintiff-respondent entered into the said non-notarialagreement on 2.7.1977.
That on the said date, a sum of Rs. 50,000/- was paid to theplaintiff-respondent and it was agreed that the balance sumwould be paid within 6 months. The receipt of the Rs. 50,000/-was acknowledged in the said agreement.
That the balance consideration was paid as agreed and that thedefendant-petitioner and the said Shahul Hameed continued tobe in possession as owners thereof from the date of the saidpayment pending the execution of a formal deed and hadacquired a prescriptive title to the entirety of the said land.
The said Shahul Hameed, the brother of the plaintiff-respondent,died on 26.2.90 and summons was served on the defendant-petitioner only on or about July '92.
On 6th October ’94, the Court made order fixing the trial in the saidcase for 11.1.95, on which date the case was postponed to 29.3.95on account of the illness of counsel. On 29.3.95 the case waspostponed to 22.8.95 as the defendant-petitioner was absent. On
the case was postponed again for trial on 17.1.96 due to theillness of counsel for the defendant-petitioner.
The trial was taken up for 17.1.96 which was the fourth date fixedfor trial. The admissions were recorded together with the points ofcontest and after the evidence of the plaintiff-respondent wasrecorded the case for plaintiff-respondent was closed leading inevidence documents marked P1 to P6. On the application of thedefendant-petitioner the case was postponed to 16.02.96 as he hadnot brought certain documents to court.
A medical certificate on account of the illness of the defendant-petitioner was produced on 16.2.96 and the trial was postponedfinally for 24.5.96. On this date the trial was again postponed finally to
on account of the illness of the defendant-petitioner subjectto the payment of costs in a sum of Rs. 2,500/-.
On 14.6.96 the trial was postponed for 10.7.96 on an applicationmade on the personal grounds of the Attorney-at-Law for the plaintiffrespondent. The case was again refixed for 27.8.96 due to lack oftime.
The trial was finally resumed on 27.8.96 when the defendant-petitioner called as his first witness S. L. Zain Manoon and after his
evidence was concluded further trial was postponed for 5.11.96 onthe application of the defendant-petitioner as a material witnesswas ill.
On 5.11.96 when further trial resumed counsel for the plaintiff-respondent objected to the witness O. L. M. Siddeek being called asa witness by the defendant-petitioner as his list of witnesses had notbeen filed at least fifteen days prior to the date fixed for the trial.
The District Judge upheld the objection and refused to permit thedefendant-petitioner to lead the evidence of O. L. M. Siddeek. TheJudge has referred in his order marked P10A, to the fact that thisaction was instituted on 17.11.86 and that the first date of trial was
and that the trial commenced thereafter on 17.1.96 whichwas the fourth date fixed for trial. The defendant-petitioner was notready to proceed with his case on that date after the plaintiffconcluded his case as he had not brought certain documents tocourt. On another date he was not ready to continue with the trialafter leading the evidence of a witness as another material witnesswas ill. On yet another occasion the trial was postponed on theapplication of the defendant-petitioner subject to the payment ofcosts. The trial judge found as a result that the defendant-petitionerhas not acted with due diligence in the defence of this action.
The defendant-petitioner’s list of witnesses and documents dated
(P4) was filed of record according to the journal entry No. 61on 29.1.96 and it does not appear that summons have been takenout on the witnesses thereafter. It was contended that the plaintiff-respondent had ample notice of the witnesses intended to be calledby the defendant-petitioner and that the evidence of O. L. M. Siddeekwas intended to be led on 5.11.96 about 11 months after the list wasfiled. The witness Zain Manoon who was listed as the tenth witness inthe list gave evidence previously on 27.8.96 without any objectionbeing taken and it was suggested that this was an implied admission,that the plaintiff-respondent had notice of the witnesses intended tobe called. However, this witness admitted in cross-examination thathe was summoned by the plaintiff-respondent to give evidence andnot by the defendant-petitioner.
Learned Counsel for the defendant-petitioner submitted that thetrial judge has failed to exercise his discretion in the interests ofjustice and that he has failed to take into account the proviso tosection 175(1) of the Civil Procedure Code which empowers him topermit a witness to be called in the exercise of his discretion if awitness has not been included in the list. It is clear however that thetrial judge has taken into consideration the provisions of section121(2) of the Code which requires the party to an action to file a list ofwitnesses and documents ,15 days before the date fixed for trial afternotice to the opposite party. The defendant-petitioner has filed the listof witnesses and documents which is dated 10.1.96 on 29.1.96 afterthe plaintiff-respondent has closed his case on the fourth date of trial.The trial judge has found that the defendant-petitioner has not soughtto explain the delay in filing the list and that it would cause prejudiceto the plaintiff-respondent if a witness listed at this stage of the trial ispermitted to be called after he has closed his case.
Learned Counsel for the plaintiff-respondent submitted quotingLascelles CJ in Muttar v, Kathirasapillai{' that the trial judge wasright in considering the prejudice that would be caused to him afterhis case was concluded without the knowledge that an importantwitness was to be called “after the pinch of the case has beenascertained and the precise points located at which the effect offresh evidence might be expected to be decisive”. Learned Counselsubmitted further that the defendant-petitioner has failed to conformto the mandatory requirement of filing a list before the date fixed fortrial as provided in section 121(2) of the Code and that in any eventthe Court could exercise its discretion under section 175(1) of theCode only in circumstances where the name of a witness has notbeen included in the list filed as provided by section 121 of the Codeu
The defendant-petitioner contended on the other hand that he has-been prejudiced in presenting his case as the said witness 0. L. M.Siddeek was due to be called to establish that the petitioner's fatherhad paid in full the consideration for the purchase of the plaintiff-respondent’s share as far back as 1977 and that therefore thepetitioner and his father possessed the land adverse to the claim ofthe respondent.
Learned Counsel for the defendant-petitioner relied on thejudgment in Girantha v. Maria™, and referred to the observations ofGratiaen, J. that “subject to the element of surprise being avoided itis clearly in the interests of justice that the Court, in adjudicating onthe rights of the parties should hear the testimony of every witnesswho can give material evidence on the matters in dispute. In thiscase the defendant filed a list of witnesses before the trialcommenced on 24.6.1947 on various issues, one of which raised thequestion of the prescriptive rights of the parties. The case for theplaintiff concluded on that date and further trial was not held until.November 1947. In the meanwhile the defendant filed an additionallist of witnesses which included the name of Inspector Sivasambo,with notice to and without objection from the plaintiff’s proctor. Thetrial judge held in his order that Sivasambo’s evidence and his officialreport which the defendant's sought to produce had a “direct bearingon the vital issue regarding prescriptive possession” but stated thatto permit the Inspector to be called would be “putting the plaintiffs ata disadvantage". The appeal was against this order, Gratiaen, J.observed that this was no doubt correct in a sense, but theparamount consideration is the ascertainment of the truth and not thedesire of a litigant to be placed at an advantage by reason of sometechnicality.
The judgment and the observations of Gratiaen, J. referred toabove cannot help; the defendant-petitioner in this case as the Courtwas there placing an interpretation on the repealed section 121 of theCivil Procedure Code which did not then specifically require the filingof a list of witnesses fifteen days before the date fixed for trial. I amtherefore unable to hold that the learned District Judge has notexercised his discretion properly considering the facts of this case inrefusing to permit the evidence of the witness Siddeek to be led. Forthese reasons this application for Court Appeal is refused with costs.
Application refused.