044-SLLR-SLLR-2003-1-ABREW-v.-SEKERAM.pdf
CA
Abrew v Sekeram (Udalagama, J.)
381
ABREW
v
SEKERAM
COURT OF APPEALUDALAGAMA, J. ANDNANAYAKKARA, J.
CALA No. 370/2001D.C. COLOMBO 18085/LMARCH 22, 2002
Civil Procedure Code, sections 121 and 175 – Witness not in list – Leave ofcourt sought to call witness – Inadvertance – Is it a special circumstance?
Held –
Section 175(1) confers on court a discretion to permit a witness notlisted to be called if special circumstances appear to render suchcourse advisable in the interests of justice.
The burden of satisfying court of the existence of special circum-stances is on the party seeking to call such witness.
“Inadvertence” does not come within ‘special circumstances’ envis-aged under section 175(1).
APPLICATION for leave to appeal.
Cases referred to:
Asilin Nona v Wilbert Silva – (1997) 1 Sri LR 176
Kandiah v Wisvanathan and another (1991) 1 Sri LR 269
Ranjan Suwandaratne for petitioner.Rohana Jayawardena for respondent.
Cur, adv, vult.
382
Sri Lanka Law Reports
[2003] 1 Sri L.R
May 24, 2002UDALAGAMA, J.
This is an application for leave to appeal against the order ofthe learned District Judge dated 03.10.2001 in D.C. Colombo caseNo. 18085/L refusing an application to call a witness not listed interms of section 121 of the Civil Procedure Code.
It is apparent that the list dated 22.05.2001 is well after thetime period specified in section 121 aforesaid and that the plaintiff-petitioner sought by same to list additional witnesses and docu-ments. It is also apparent from, the submissions made by thelearned Counsel for the plaintiff-petitioner in the court be|ow, on thesame date the impugned order was made, that by inadvertence theplaintiff had failed to list the Post Master to prove a document to bemarked in evidence.
As held in Asilin Nona v Wilbert Silvd1) section 175(1) of theCode imposes a bar against calling witnesses who aire not listed interms of section 121 of the Civil Procedure Code. The 1st provisoto section 175(1) confers on the court a discretion to permit a wit-ness not so listed to be called if special circumstances appear torender such course advisable in the interest of justice. The burdenof satisfying the court of the existence of special circumstances ison the party seeking to call such witnesses.
As stated above, the special circumstances submitted bycounsel for the plaintiff in the court below appears to be ‘inadver:tence’. Learned counsel has also referred us to a case(2) and specif-ically to the observance of Justice Wijeratne, who in fact refers to thehardships caused to parties and the delay caused to courts which.contribute to the laws delays and importantly stresses the necessitycast on attorneys-at-law to list witnesses and documents as requiredby law. As held in the same case, whether leave of court should begranted under section 175(2), is a matter which I am inclined to holdis eminently within the discretion of the trial judge.
It appears that the learned District Judge in the instant casewas not impressed by the reasoning of the learned counsel whomoved for leave of court to call the Post Master as a witness.
Kumarav. I ne Mayor, Hatnapura Municipal uouncii
SCand others (Fernando, J.) 383
I see no reason to interfere with the discretion exercised bythe learned District Judge, even though the impugned orderappears highly technical to the learned counsel who stated so in hiswritten submissions to this court.
~ Leave is refused with costs fixed at Rs. 5250/-
NANAYAKKARA, J. – I agreeApplication refused.