ABREW vs. HOUSING DEVELOPMENT AND FINANCE CORPORATION AND OTHERS

046-SLLR-SLLR-2006-V-2-ABREW-vs.-HOUSING-DEVELOPMENT-AND-FINANCE-CORPORATION-AND-OTHERS.pdf


CA Abrew vs. Housing Development and Finance Corporation and Others 365
ABREW
VS.
HOUSING DEVELOPMENT AND FINANCE CORPORATION AND OTHERS
COURT OF APPEAL.
SOMAWANSA, J. (P/CA).
WIMALACHANDRA, J.
CALA 384/2004.
DC COLOMBO 5497/99/S/2L.
JANUARY 27, 2005.
SEPTEMBER 5, 2005.
Civil Procedure Code – sections 143, 145 – Strict compliance- Substantialportion of evidence led – Witness absent on day of re-examination-postpone-ment asked – Refused- Next step?
The Plaintiff-petitioner instituted action against the 1st-3rd defendant-re-spondents seeking a declaration that the auction sale held on 15.11.99 withregard to a certain property is illegal and unjustifiable and for an order toinvalidate the said sale. At the trial the plaintiff called the auctioneer who con-ducted the auction. He was examined in chief, cross examined and thereafterthe plaintiff applied for a postponement to re-examine the witnesses. On theadjournment date the auctioneer was absent. On an application made by theplaintiff. Court granted permission to lead the evidence of other witnesses. Onthe next date, the final date to call this witness, the auctioneer was absent, thepostponement required was refused. The plaintiff-petitioner contends that, thesaid order is bad in law.
HELD:
Under section 143 of the Code adjournment is entirely discretionary.
Under Section 145 of the Code, if a party to whom time has beengranted fails to produce his evidence or to bring his witnesses or todo any other act necessary for the further progress of the case, forwhich time has been allowed, the Court has the power notwithstand-ing such default, to decide the action forthwith.
When the defendant repeatedly seeks adjournments on one groundor the other and fails to bring evidence, the Court should proceed todecide the suit by rejecting the adjournment application. It is appro-priate for the Court to dispose of the suit on merits on the availableevidence.
366
Sri Lanka Law Reports
(2006) 2 Sri LR.
APPLICATION for leave to appeal from an order of the District Court ofColombo.
Cases referred to:
Abdul Hannan vs. Chandrasekera – 1986 AIR Ori 236
Rama Divakar Panikar vs. Bakari Hydrose Chennampillai – 1990 AIRKer 295 at 298.
Ranjan Suwandaratne with Mahinda Nanayakkara for petitioner.
Rohana Jayawardane for 2nd and 3rd defendants-respondents.
Cur.adv.vull.
February 10,2006.
WIMALACHANDRA, J.This is an application for leave to appeal from the order of the AdditionalDistrict Judge of Colombo dated 21.09.2004. Briefly the facts relevant tothis application are as follows:
The plaintiff-petitioner(plaintiff) instituted this action in the District Courtof Colombo against the 1st to 3rd defendants-respondent (defendants)seeking inter alia for a declaration that the auction sale held on 19.11.1999with regard to the premises No. 160-U-115, Anderson Flats at the instanceof the 1 st defendant is illegal and unjustifiable, for an order invalidating thesaid sale and for a declaration that the 2nd defendant is not entitled toclaim any right, title or interest in relation to the said premises upon theauction sale and also for an order cancelling the Mortgage Bond No. 19dated 19.05.1999 in respect of the said premises.
The defendant filed answer and the case proceeded to trial. At the trialthe plaintiff called the auctioneer who conducted the auction. After theexamination in chief the auctioneer was cross-examined by the defendants.Thereafter the counsel for the plaintiff applied for a postponement to re-examine the witness. The Court allowed the application for postponement.When the case was taken up for further trial the witness, the said auctioneer,was not present in Court and the learned Counsel for the plaintiff soughtpermission to lead the evidence of other witnesses, which the Court allowed.Thereafter the trial was postponed for 21.09.2004. On that day too the saidwitness, the auctioneer was absent. The counsel for the plaintiff moved foran adjournment to call the said auctioneer on a subsequent date. Thelearned Judge refused the application. It is against this order the plaintiffhas filed this application for leave to appeal.
CA Abrew vs. Housing Development and Finance Corporation and Others 367
(Wimalachandra, J.)
Section 143 of the Civil Procedure Code provides that when the hearingof evidence has once begun, the hearing shall be continued from day today until all the witnesses in attendance have been examined, unless theCourt finds the adjournment necessary for reasons to be recorded andsigned by the Judge.
Section 145 of the Civil Procedure Code provides that if a party to whomtime has been granted, fails to produce his evidence, or to bring his witnessesor to do any other act necessary for the further progress of the case, forwhich time has been allowed, the Court has the power notwithstandingsuch default, to decide the action forthwith.
It appears that where a party to the action has been granted time toproduce certain evidence at the hearing, the Court must proceed to hearthe other evidence as may be tendered on behalf of the party in default anddecide the action forthwith.
Under section 143 of the Civil Procedure Code adjournment is entirelydiscretionary. In my view, in the instant case, the learned Judge hadexercised the discretion in a judicial and reasonable manner when thelearned counsel had sought adjournments on two occasions on the sameground.
Order 17 Rule 1 of the Indian Civil Procedure Code is identical to section143 of our Civil Procedure Code. Similarly Order 17 Rule 3 is identical tosection 145 of our Civil Procedure Code. Hence decisions of the IndianCourts on this subject can be of persuasive value in Sri Lanka and referencecan be made to them with profit. It was held in an Indian case of AbdulHannan vs. Chandrasekhar<’> that when the defendant repeatedly seeksadjournments on one ground or the other and fails to bring evidence, theCourt could proceed to decide the suit by rejecting the adjournmentapplication.

In making the said order the learned Judge had observed that the Courthad granted adjournments on three occasions for the plaintiff to call thiswitness. Firstly on 31.10.2003, secondly on 23.02.2004 and finally on
On the last occasion the Court had given a final date to callthis witness upon an application made by the counsel for the plaintiff. Inhis order the learned Judge had made the following observations:
368
Sri Lanka Law Reports
(2006) 2 Sri L R.
In the instant case the examination-in-chief and the cross-examinationof the witness concerned, the auctioneer, had been already concludedand the learned counsel for the plaintiff moved for an adjournment on twooccasions only to re-examine the said witness. Accordingly it appearsthat a substantial portion of his evidence had already been recorded leavingonly the re-examination by the counsel for the plaintiff. In my view if thatwitness fails to appear in Court for the purpose of re-examination, eventhough three postponements had been given for the plaintiff to secure hisattendance, it is appropriate for the Court to dispose of the suit on meritson the available evidence.
In the Indian case of Rama Divakar Panikar vs. Bakari HydroseChennampillai(2) at 298 it was held that the words “notwithstanding suchdefault” in Order 17 Rule 3 (Section 145 of our Civil Procedure Code)clearly imply that the Court is to proceed with the disposal of the suit onmerits, in spite of the default upon such materials as are before it.
It appears to me that the words “the Court may, notwithstanding suchdefault, proceed to decide the action forthwith” must be construed strictly.The Court must proceed to decide the case on the merits on the verysame date according to law, if the Court in its discretion thinks furtherpostponements are unnecessary.
In the instant case the judge had exercised his discretion judicially andreasonably. The learned Judge had observed that the plantiff had repeatedlysought adjournments to call this witness. In any event a substantial portionof evidence of this witness had already been given, in that, the examinationin chief and cross-examination had been already concluded and only there-examination remains. Moreover, when the learned Judge had given afinal date to call this witness it was the duty of the plaintiff to get down thiswitness. It is to be noted that this action was instituted on 05.11.1997.
On a consideration of the matters set out above, I am satisfied that thelearned Judge is correct and had exercised his discretion correctly. Itherefore find that there is no merit in the submissions made on behalf ofthe plaintiff-petitioner. For these reasons I refuse to grant leave and theapplication for leave to appeal is dismissed with costs fixed at Rs. 7,500.
SOMAWANSA, J.(P/CA) — / agree.
Application dismissed.