040-SLLR-SLLR-2006-V-1-ABEYGUNAWARDENA-vs.-PODI-MAHATHMAA-AND-ANOTHER.pdf
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ABEYGUNAWARDENAvs
PODI MAHATHMAA AND ANOTHERCOURT OF APPEALSOMAWANSA, J. (P/CA)ANDWIMALACHANDRA, J.
CALA 350/2004(CG)
MAY 5, ANDJULY 6, 2005
Civil Procedure Code, sections 420, 422 and 422(1) — Refusal of court toissue a commission — Validity — Circumstances
The plaintiff-petitioner as well as the 1st defendant respondent both claimedthat their predecessors in title was one ‘A’. The plaintiff-petitioner filed action tohave the deed whereby A has transferred the corpus to the 1st defendant-respondent set aside. The plaintiff petitioner with a supporting medical certifi-
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cate moved court to issue a commission to record/examine the said A at theplace he was residing as he had been medically advised not to travel due tohis sickness.
This application was rejected by court. On leave being sought -HELD:
If it is for a commission to examine a sick person within the jurisdictionof the court, section 420 would be applicable and a commission toexamine in other cases the relevant section is section 422. In eithercase court is given a discretion to grant or withhold a commission.
The power to issue commission is discretionary and for court to exer-cise its discretion adequate material must be placed before it. In anapplication under section 422 there must be material as to the resi-dence of the person to be examined. In the circumstances, thereis no material placed before Court to satisfy Court as to the residenceof A.
Where forgery is pleaded witness speaking to the fact must be presentso as to be cross examined.
The finding of the District Judge as to the evidentiary value of the medi-cal certificate is correct, as the medical certificate only certifies that heis suffering from Parkinsons disease and at present not suitable fortraveling.
Where the witness is ill, medical, evidence of such fact must be given,and when illness is alleged, mere certificate of a medical man is notadmissible unless proved by the evidence of the person giving it.
When a commission is asked for on the ground of illness the court isunder obligation of coming to a definite conclusion and recording afinding as to whether the illness is serious enough to prevent the wit-ness from attending court, before passing the order.
APPLICATION for leave to appeal, with leave being granted.
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Cases referred to:Abner & Co. vs Ceylon Overseas Tea Trading Co.. 47 NLR 9 at 11
Sarala vs Surendra 39 CWN 595
Sirinivasa vs Ranga – A 1927 M 524
Panchkari vs Panchanam – 39 CLJ 589
R vs Ahiliya – 47 B 74
Navin Rajapakse for plaintiff petitioner.
Chandana Prematilake with S. Herath for 1 st and 2nd defendant respondents.
Cur.adv.vult.
October 07,2005
ANDREW SOMAWANSA, J. (P/CA)This is an application seeking leave to appeal from the order of thelearned District Judge of Gampaha dated 30.08.2004 refusing to issue acommission in terms of Section 422 of the Civil Procedure Code and ifleave is granted to set aside the aforesaid order dated 30.08.2004 and toissue a commission under and in terms of Section 422(1) read with Sec-tion 420 of the Civil Procedure Code to examine and/or record the evi-dence of Sathasivam Achalingam and in the alternative for a direction tothe District Court of Gampaha to issue a commission under and in termsof Section 422(1) read with Section 420 of the Civil Procedure Code toexamine and/or record the evidence of the said Sathasivam Achalingamwho is listed in the plaintiff-petitioner’s list of witnesses.
As per minute dated 12.01.2005 leave has been granted to decide thesubstantial question as to the correctness of the learned District Judge’sorder dated 30.08.2004. On this question of law both parties have madeoral submissions and have tendered written submissions as well.
the relevant facts are the plaintiff-petitioner as well as the 1st defen-dant-respondent both claimed that their predecessor in title was oneSathasivam Achaligam who according to the plaintiff-petitioner had madeand signed or executed the deed of gift No. 27 in his favour while the 1 st
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defendant-respondent claimed that the said Sathasivam Achalingam hadmade and executed the deed of transfer No. 2199 in his favour. Thus interms of the recitals of both deeds the predecessor in title was one andthe same person named Sathasivam Achalingam. The plaintiff-petitionerfiled the instant action in the District Court of Gampaha to have the saiddeed No. 2199 set aside and for a declaration of his title to the land in suitand ejectment of the defendants-respondents therefrom.
On or about 14 November 2002 the plaintiff-petitioner made an applica-tion to the District Court of Gampaha to issue a commission on the Exam-iner of Questioned Documents (EQD) to compare and report on the au-thenticity of the signature of the said Sathasivam Achalingam claimed tobe appearing on both the aforesaid deeds, deed No. 27 (plaintiff-petitioner)and deed No. 2199 (1st defendant-respondent). However the learned Dis-trict Judge directed the plaintiff-petitioner to lead evidence for the purposeof issuing a commission to the Examiner of Questioned Documents.
In the meantime, the 2nd defendant-respondent was added as a partyon the basis that the 1st defendant-respondent had by deed No. 1048transferred his rights in the property to the 2nd defendant-respondent theson of the 1 st defendant-respondent. Thereafter on or about 30.04.2003the plaintiff-petitioner made an application to the District Court of Gampahain terms of Section 178(1) of the Civil Procedure Code to record the evi-dence prior to trial which application was refused by the learned DistrictJudge of Gampaha. It is to be noticed neither the application nor the ordermade has been made available to this Court.
It appears that another motion had been filed by the plaintiff-petitionertogether with a copy of a medical certificate dated 16.08.2004 issued by aNeurologist indicating the present physical condition and/or health ofSathasivam Achalingam and moved Court to issue a commission to recordevidence and/or examine the said Sathasivam Achalingam at the place hewas residing as he has been medically advised not to travel due to hissickness. Though it is stated in the petition that a true copy of the saidmotion is tendered to Court marked P9 no such document marked P9 hasbeen tendered to Court up to now. However a certified copy of the said
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motion has been tendered by the defendants-respondents marked R1 toassist Court. The medical certificate has been produced marked P9A.
It is averred by the plaintiff-petitioner that as there was an error in thesaid written motion about the correct section of the Civil Procedure Codeunder which the said motion was made the plaintiff-petitioner’s attorney-at-law made an oral motion and/or application to Court in terms of Section422(1) of the Civil Procedure Code read with Section 420 of the Civil Pro-cedure Code to which counsel for the defendant-respondent objected to.The learned District Judge having heard both counsel on this matter by herorder dated 30.08.2004 rejected plaintiff-petitioner’s aforesaid application.
Counsel for the plaintiff-petitioner has formulated two questions of lawto be considered by this Court.
Whether there is a specific procedure for the issue or refusal of acommission under Chapter XXIX of the Civil Procedure Code ?
Whether the reasons for the order refusing the commission by thelearned District Judge was reasonable in view of the material ad-duced before Court ?
On an examination of the order of the learned District Judge dated
it is to be seen that the learned District Judge has not consid-ered the procedural aspect of the matter either for the issue or refusal of acommission and in the circumstances I rr.yself do not intend to considerthis aspect of the matter at length. It suffices to say that the procedure isclearly stated in the relevant sections. If it is for a commission to examinea sick person within the jurisdiction of the Court, Section 420 would beapplicable and a commission to examine 'n other cases the relevant sec-tion would be Section 422. In either case the Court is given a discretioneither to grant or withhold a commission and it only requires the Court toadhere to the principles governing the exercise of its discretion.
Sarkar’s Code of Civil Procedure Code 10th Edition 2002 (vol. 2) page1770 states as follows :
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“The power to issue commission is discretionary. Therecording of evidence by the Court has to be the normal rule orprocedure. Examination of witnesses on a commission has tobe an exception”.
Thus it is to be seen that for this Court to exercise its discretion ad-equate material must be placed before it. Therefore if the application ismade in terms of Section 422 of the Civil Procedure Code there must bematerial before Court as to the residence of the person to be examined asat the relevant time to the satisfaction of Court. In the instant action thefact that the aforesaid Sathasivam Achalingam’s address as given in thetwo deeds is outside the jurisdiction of District Court of Gampaha will notbe sufficient material to establish that at the time of the application thesaid Sathasivam Achalingam was residing outside the jurisdiction of theCourt. Thus there was no material placed before Court to satisfy Court asto the residence of Sathasivam Achalingam.
K. D. P. Wickremasinghe in his Book Civil Procedure in Ceylon page 11says :
“Where forgery is pleaded, witnesses speaking to that factmust be present so as to be cross-examined”.
This is exactly the situation in the present case where the plaintiff-petitioner alleges that the deed of transfer No. 2199 dated 18.09.1997made in favour of the 1st respondent does no contain the signature ofSathasivam Achalingam and therefore is a forgery. Therefore the defen-dants-respondents must necessarily have the right and the opportunity toexamine or cross-examine Sathasivam Achalingam under oath in Court toascertain the truth and prove that the vendor’s signature in the said deedis in fact that of Sathasivam Achalingam.
Soertsz ACJ and Rose, J in Abner & Co., vs. Ceylon Overseas TeaTrading Co.(1> where Their Lordships said:
2-CM 665'
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“The granting or withholding of a commission is, of course, amatter within the discretion of the Court and normally an Ap-pellate Court would be slow to interfere with the exercise ofthat discretion”.
The second question as to whether reasons for the order refusing thecommission by the learned District Judge was reasonable in view of thematerial adduced before Court has been correctly considered and an-swered by the learned District Judge. It is to be seen that the only materialadduced before Court was the copy of a medical certificate dated 16.08.2004from a Neurologist indicating the present physical and/or health conditionof the said Sathasivam Achalingam marked P9A which reads as follows:
“Mr. S. Achalingam
To whom it may concern
This patient is suffering from Parkinson’s disease and … Atpresent he is not suitable for traveling. To review in threemonths.”
It is interesting to note that under the heading Parkinson’s and Death ina medical definition of Parkinson’s disease found in Wikipedia, the freeencyclopedia htm it is stated as follows.
Parkinson’s and Death:
While Parkinson's does not by itself cause death, because the de-cease may affect the respiratory system, sufferers may eventually con-tract pneumonia and die. Swallowing difficulties may lead to aspirationwhere food goes down the windpipe. Immobility may increase susceptibil-ity to infection. That being said, people have lived 20-30 years with theaffliction.
I must concede that the finding of the learned District Judge as to theevidentiary value of the medical certificate marked P9A is correct and shecannot be faulted for not acting on it for the simple reason that the afore-
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said medical certificate only certifies that Sathasivam Achalingam is suf-fering from Parkinson’s disease and at present he is not suitable for trav-elling. Condition to be reviewed in three months. Certainly the medicalcertificate does not certify that Sathasivam Achalingam will never be ableto travel or come to Court after three months or for a long period due tosickness. Sarkar’s Code of Civil Procedure MRU Edition 2002 vol. 2 page1770 states:
“When a commission is asked for on the ground of illness thecourt is under an obligation of coming to a definite conclusionand recording a finding as to whether the illness is seriousenough to prevent the witness from attending the court, beforepassing the order”.
(2)
Sarala vs Surendra goes on to say at page 1772:
“Mere age is no sufficient ground (Sirinivasa v. Rangaf3) If sick-ness and infirmity is alleged, its character and gravity have gotto be assessed. At the same time the importance of having thewitness before the court and the advantages that would followfrom examination in court should not be altogether lost sightof. (Panchkari v. PanchanarrfA)). When illness is alleged, merecertificate of a medical man is not admissible unless proved bythe evidence of the person giving it. (f?v. Ahiliya.(s)) ”
Civil Procedure in Ceylon by K. D. P. Wickremasinghe at page 191says”
“Where the witness is ill, medical evidence of such fact must be given”.
It is to be seen that the so called medical certificate submitted by theplaintiff-petitioner falls far short of the above requirements and the DistrictJudge is fully justified in refusing the commission. In the circumstancesthere is no basis to interfere with her finding.
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However I must say that the aforesaid medical certificate is dated
and the learned District Judge has made the order canvassedin this application on 30.08.2004 considering Sathasivam Achalingam’shealth condition as on or about August 2004. This does not mean that theDistrict Court is prevented from entertaining another application for acommission if the plaintiff-petitioner is able to satisfy Court the necessityfor the issue of a commission. This is what the learned District Judgeherself has indicated in the last sentence of her order when she says :
I might also say that it has taken one year to decide this matter and ifthis application was not made to this Court in all probabilities the trialwould have commenced and the evidence of Sathasivam Achalingam couldhave been lead.
In the circumstances, I would hold that the reasons given by the learnedDistrict Judge for refusing to issue a commission is reasonable. The appli-cation of the plaintiff-petitioner will stand dismissed with costs fixed at Rs.10,000.
WIMALACHANDRA, J. — I agree.
Application dismissed.