085-NLR-NLR-V-41-AMERESEKERE-v.-CANNANGARA.pdf
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SOERTSZ S.P.J.—Ameresekere v. Cannangara.
1939Present : Moseley A.C.J. and Soertsz S.P.J.AMERESEKERE v. CANNANGARA.
95—D. C. Colombo, 4,686.
Commission to examine party—Defendant resident abroad—Application bydefendant—Discretion of Court—Civil Procedure Code, s. 422.
Under section 422 of the Civil Procedure Code a commission may beissued for the examination of a party resident outside the limits of theCourt's jurisdiction.
An application for the examination on commission of a party ought notto be lightly entertained especially when it is made on behalf of theparty, who is sought to be examined.
Such an application or an application for the evidence of witnessesto be taken on commission should not be granted unless it were sup-ported on affidavits which clearly show that the commission would beconducive to the administration of justice.
^/^PPEAL from an order of the District Judge of Colombo.
C. Thiagalingam, for defendant, appellant.
N. E. Weerasooria. K.C. (with him D. M. Veerasinghe), for plaintiff,respondent.
Cur. adv. vult.
November 2, 1939. Soertsz S.P.J.—
This is an appeal from an order made by the District Judge of Colomborefusing to issue a commission for the examination of the defendant,and of certain witnesses, all of them resident in England.
The circumstances in which the application for a commission wasmade are these. The plaintiff who is the stepson of the defendantsued him, in this case, on several causes of action to recover large sumsof money. One of the claims was for a sum of Rs. 12,698 which theplaintiff alleged was the amount of rents collected by the defendantin respect of certain houses and premises belonging to the plaintiff,and not accounted for to him. The defendant’s defence is that he
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collected a sum of Rs. 12,418 and not Rs. 12,698 as stated in the plaint,and that that amount and a sum of Rs. 809 over and above that amountwere expended by him in maintaining, feeding and clothing the plaintiff. during his stay in England and the defendant claims in reconvention theadditional sum I have referred to. The defendant’s attorney has sub-mitted an affidavit in support of the allegations in the answer that alarge sum of money was spent “ on account of clothing, food, light,heating, house rent and medical attention to the plaintiff”. It is inregard to these matters that the defendant asked that his evidence,the evidence of Dr. Low and the evidence of Mr. and Mrs. Ramsdenbe taken on commission. Dr. Low’s and the Ramsdens’ evidence, it issaid, will show that the plaintiff was suffering from a highly contagiousdisease, and that he had to be segregated and put in charge ofattendants.
The learned trial Judge refused the application because he thoughtthat in view of the claim in reconvention the Court should have thedefendant and his witnesses before it so that their evidence might beassessed properly with reference to the kind of witnesses they appearedto be, and to the manner of their giving evidence. The Judge also thoughtthat the statement made in the affidavit that the defendant’s state ofhealth made it inadvisable for him to embark on a voyage to Ceylonwas belatedly made, and that there was no direct evidence to show thatMr. and Mrs. Ramsden were unwilling to come to Ceylon. There wasonly the attorney’s statement to vouch for that.
Now applications such as this are left in the discretion of the Court,for it to allow or refuse as the facts and circumstances of each caseseem to require. There are no hard and fast rules, and where a trialCourt has exercised the discretion vested in it substantially in a mannerconducive to justice, a Court of appeal will not interfere merely becauseif it had been the original Court it would have exercised this discretiondifferently. Mr. Weerasooria stood on that principle. But after carefulconsideration I have reached the conclusion that the trial Judge liasmisdirected himself, and has exercised his discretion wrongly. One ofthe reasons given by him is that there is a claim in reconvention and thattherefore it is necessary that he should have the defendant and hiswitnesses in front of him. It is, of course, desirable that in every casewhich has to be tried the parties and their witnesses should, during thependency of the trial, live and move and have their being so to speak,in the presence of the Judge who has to adjudicate between them, butobviously there must arise cases in which what is desirable is not attain-able conveniently. Hence our section 422 of the Civil Procedure Code,and kindred provisions in other systems of law. Section 422 providesthat “ any Court may in any action issue a commission for the examina-tion of any person resident beyond the local limits of its jurisdiction ”.These are very wide words and make it possible for the parties themselvesto be evamined on commission. But as Taylor says in his work onEvidence “ motions for this purpose (i.e., for examination on commissionof the parties themselves) ought not to be lightly entertained especiallywhen made on behalf of the party who is sought to be examined ….
The application should not be granted unless it were supported by
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affidavits clearly stating that the commission would, under the circum-stances, be conducive to the administration of justice …. A lessstringent rule would inevitably lead to the pernicious practice of partiesgoing abroad to avoid the risk of cross-examination in open Court ”.
In the case of Mohideen v. Mohamadu' a commission was refusedwhere the witnesses sought to be examined in that way were witnessesto nine promissory notes which were being impugned as forgeries. Thatis quite understandable. In Moorhouse v. Caffoor 5 a commission issuedto examine the plaintiff, where it was apparent that the plaintiff’s dutiesprevented him from returning to Ceylon except at a large sacrifice of timeand money, and he was not wilfully avoiding the Ceylon Courts.
In the case before us, so far as the defendant is concerned, he has beenresident in England continuously from 1926. He says it is his intentionto continue to reside there, and that seems probable. The claim withwhich we are concerned is a claim brought against the defendant not byhim and it cannot be said that he desires to remain abroad to avoid therisk of cross-examination in open Court. What is more, there is materialbefore us to show that the defendant has. been advised medically that itwill be prejudicial to his health to voyage to Ceylon and back. I cannothelp feeling that the trial Judge took too technical a view of the matterwhen he remarked that this fact had not been brought properly to hisnotice and that it was so brought belatedly. In cases where a Court isexercising a discretion vested in it; it may well, I think, take a moreliberal view. It seems to me that the affidavit of the attorney who is thelocal representative of the defendant, and the medical certificate showthat the defendant’s health is as it is said to be. In my opinion, therefore,it cannot be said that if we entertain this application for the defendant’sevidence to be taken on commission we shall be entertaining anapplication for a commission lightly.
The position in regard to Dr. Low and Mr. and Mrs. Ramsden is evenstronger. One is a professional gentleman, and the others are workingpeople, and it is unlikely that they will agree to come to Ceylon to giveevidence in this case. I cannot pay serious attention to the objectionmade that these witnesses have not themselves said that they will notcome to Ceylon for the purpose of this case. The attorney says they areunwilling and he must be understood to be speaking on instructionshe has received from the defendant. On the probabilities of the mattertoo, one may assume that they have refused to come to Ceylon. Buteven if they should be willing to come, the expenditure that would beincurred in getting them out is such that it is out of proportion to thenature and amount of the claim. The sole question involved is whetherthe defendant has incurred all the expenditure he says he has. It seemsclear that he must have incurred some expenditure. My view in a caselike this is that the interests of justice will not suffer by the evidencereferred to being taken on commission. The Judge will no doubt,in adjudicating upon the claims, bear in mind that the evidence for thedefence was placed before him in this manner, and that the plaintiff hasnot had the advantage of subjecting those witnesses to cross-examination1 1 Br. 234.* 1 Tomb. 10.
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in open Court in the presence of the trial Judge. We were referred tocertain English and local cases in support of the contentions put forwardon the two sides, but case law is not of much assistance in a matter ofthis kind where the exercise of a discretion vested in a Court must dependon the peculiar facts and circumstances of each case. On a broad viewof the circumstances of this case, and of the nature of the evidence soughtto be procured by means of a commission, I am of opinion that, thedefendant’s application should be allowed.
I would, therefore, set aside the order dismissing the application andsend the case back with the direction that a commission do issue at theexpense of the defendant to such a Court or person as the trial Judgemay deem fit for this evidence to be taken on commission. The appellantwill have the costs of this appeal and of the argument on the point in theCourt below, but whatever the ultimate result of this case, he must bearthe cost of the commission including such additional costs as theplaintiff will have to incur in procuring representation for himself beforethe commission appointed Jo take the evidence the defendant desiresto adduce.
Moseley A.C.J.—I agree.
Order set aside