Abner d? Co. and Cgyloit Overseas Tea Trading Co.
1945Present: Soertsz A.CJ. and Rose J.ABNER & CO., Appellant, and OEVLON OVERSEASTEA TRADING CO., Respondent.
104r—D. C. Colombo, 15,725.
Commission to examine witnesses—Application for evidence to be taken oncommission—Requirement of due diligence in making it—Discretionof Court—Civil Procedure Code, e. 422.
Where the plaintiff, a merchant residing in Cairo, was desirous ofhaving his evidence and that of certain of his witnesses taken on com-mission but the Court refused his application principally on the groundthat the plaintiff had shown want of due diligence in making his applica-tion—
Held, that, although ilje granting or withholding of a commissionis a matter within the discretion of the Court, it is the duty of theAppellate Court to examine the principles which should govern theexercise of a discretion in cases where it is alleged that a plaintiff hasfailed to show due diligence in making his application.
PPEAL from a judgment of the District Judge of Colombo.
V. Per era, K.C. (with him D. W. Fernando and C. E. L. Wickrema-singhe), for plaintiff, appellant.—In this case the plaintiff, who is amerchant residing in Egypt, sued the defendant for breach of contract.The plaintiff made an application tinder section 422 of the Civil ProcedureCode to have his evidence taken on commission. The District Judgerefused his application on the ground that he had shown a want of duediligence. This appeal is against that refusal. It is submitted thatdelay per se is not a ground for refusing the issue of a commission. Onlysuch delay as effects the postponement of a trial can be a valid groundfor refusal—Armour v. Walker 1; jStewart v. Gladstonea. Further, noreason has been adduced to show why the granting of a commission
would prejudice the respondent.
J (1883) SO L. T. (N. S.) 292.
5—H 18702 (8/68)
» L. R. (1877-86) 7 Ch. 394.
ROSE J.—Abner dc Co. and Ceylon Overseas Tea Trading Co.
N. K. Choksy (with him Izadeen Ismail), for defendant, respondent.—The question is whether the plaintiff has been guilty of unreasonabledelay in making his application. The case was taken off the trial rollfor the purpose of an issue of a commission. The matter is in the dis-cretion of the trial Judge, and where that discretion has been exercisedsubstantially in a manner conducive to justice a Court of Appeal willnot interfere—Ameresekere v. Cannangara 1 ; Kenny v. Wickremesinghe *.
H. V. Perera, K.C., replied.
Cur. adv. wit.
December 19, 1945. Rose J.—
The plaintiff-appellant, who is amerchant residing in Cairo, instituted anaction for damages alleged to have been sustained by him in consequenceof the failure of the respondent to fulfil certain contracts for the supply oftea and desiccated coconut oil. The appellant is desirous of having hisevidence and that of certain of his witnesses taken on commission. Thelearned District Judge, however, refused his application principally onthe ground that the appellant had shown a want of due diligence inpursuing the matter. The present appeal is against that refusal.
The history of the matter appears to have been as follows :—OnFebruary 7, 1945, application was made on behalf of the plaintiff for apostponement of the trial date, February 27, 1945, to suit the convenienceof plaintiff’s Counsel. The defendant’s Proctor seems to have consentedto the proposed adjournment; the trial date was then fixed for May 11,1945. On May 3, 1945, the following journal entry appears :—
As the plaintiff’s evidence will have to be recorded on CommissionProctors for plaintiff move that pending the issue of such Commissionthe trial fixed for the 11th instant be postponed.
Take case off trial roll.
Intd. S. C. S.
Case called in open Court.
Adv. D. W. Fernando for plaintiff.
Adv. Choksy for defendant says he has no objection to thecase being taken off the trial roll but that he may object to the issue-of a commission.
The order last made -will be without prejudice.
Sgd. S. C. Swan.”
On May 11, 1945, appears the following journal entry :—“11.5.45.—
Case called.Put by.
Intd. S. C. S.”.
On July 3, 1945, the appellant’s Proctor filed a petition that the Courthe pleased to allow a Commission to issue to a Mr. Edward Haym of
1 (1936) 1C C. L. Rec. 135.
* (1939) 41 N. L. R. 333.
ROSE J.—Abner «fc Co. and Ceylon Overseas Tea Trading Co.
Cairo empowering him to examine the appellant and certain otherwitnesses. The order, which is the subject matter of this appeal, wasmade on August 27, 1945.
The granting or withholding of a Commission is, of course, a matterwithin the discretion of the Court and normally an Appellate Courtwould be slow to interfere with the exercise of this discretion. In thepresent matter, however, it is quite clear that the discretion was exercisedin substance for one reason only and I am therefore in agreement with thecontention of Counsel for the appellant that it is the duty of this Courtto examine the principles which should govern the exercise of a discretionin cases where it is alleged that a plaintiff has failed to show due diligencein making his application. In L. R. 1877, 7 Ch.D. at page 394, Fry J.says—
“ Now, I have a very strong opinion that when a plaintiff comes toask that the hearing of his cause may be postponed he must show duediligence on his own part in making the application. I think it isa great hardship upon defendants to have the hearing of causes post-poned and suspended, and, so far as I am concerned, I shall alwaysendeavour to avoid granting the indulgence of postponing a trialunless the plaintiff has used due diligence in applying, and has somegood and strong reason for seeking a postponement ”.
It is to be noted that Fry J. considers the matter from the point ofview whether the application for the issue of a Commission involves apostponement of the trial date. Now, in the present matter had Counselfor the respondent on May 3, 1945, taken up the position that he objectedto the postponement of the trial which was then fixed for May 11,1945,on the ground that the appellant had at that time shown a lack of duediligence having regard to his passivity between February 27, 1945,which was the earlier trial date, and the date of the application, I am ofopinion that'the learned Judge could properly have refused the appellant’sapplication. In fact, however, learned Counsel for the respondent tookup a different position in that he agreed to the case being taken off thetrial roll. It is true that the order of removal was made “ withoutprejudice ” and that respondent’s Counsel intimated that “ he mayobject to the issue of a Commission ” but it seems to me that the onlyreasonable interpretation to be given to that matter is that it only re-mained open for respondent’s Counsel to object to the issue of a Com-mission on grounds existing at the time of the new application, that isto say, in the event, on July 3, 1945. It seems to me that on the latterdate the appellant’s application did not necessarily involve any or anyappreciable postponement of the trial date, inasmuch as at that timethe case had not been replaced on the trial roll, and it was then too latefor the respondent’s Counsel to revert to the state of affairs existingprior to the order of Court of May 3, 1945, of which of course, as I havealready said, he could then have availed himself.
Having regard therefore to the state of affairs existing on July 3, 1945,I am of opinion that there was no material on which the learned Judgecould properly hold that the appellant had shown a lack of due diligence
JAYETILEK.E J.—Abeytwardetie and Uuttunayagam.
in making his application. I would add that on the merits nothinghas been adduced to us in argument to show that the appellant’s requestfor a Commission to issue is unreasonable or would prejudice therespondent nor was this aspect of the matter pressed before the learned[District Judge.
In my opinion, therefore, the appeal must be allowed and the matterremitted to the District Court for the necessary order to be made onsuch conditions as may seem fit to the learned Judge. In all the circum-stances I am of opinion that the fair order is that the costs of this appealand those involved in the hearing of the application before the DistrictJudge should be in the cause.
Soetrtsz A.C.J.—I agree.