HOWABED C.J.—Arumugam and Siva Sambu.
1944Present: Howard C.J. and de Kretser J,ABUMUGAlf, Appellant, and SIVA SAMBU, et al.,Respondents.
299—D. G. Jaffna, 16, 007.
Evidence—Questions put by Counsel disallowed by Court—Refused to recordquestions—Ground for retrial.
Where a District Judge disallows certain questions put by Counsel;and refuses to record the questions when he is requested to do so byCounsel,—
Held, that it was a sufficient ground for ordering a new trial.
^^PPEAL from a judgment of the District Judge of Jaffna.
N. Nadarajah, K.C. (with him H. W. Thambiah), for the defendant,,appellant.
L>. A. Rajapakse, K.C., (with him C. Renganathan), for the plantiffsrespondents.
Cut. ado. vult.
October 23, 1944. Howard C.J.—
One of the cardinal principles of our law is that justice should not onlybe done but be seen to be done and in this case there is no doubt that the-defendant considered that he had not been given a fair trial. It wouldappeur that at one stage of the proceedings the defendant’s Counselwanted to put eertain question to a witness. These questions were-disallowed. After that there appears to have been a somewhat unseemlywrangle between defendant’s Counsel and the Judge. Later on, the.defendant’s Counsel, according to a passage in the record, said that-he did not want to appear in the case as some of his questions in re-exami-nation which the Judge considered irrelevant and not arising out of thecross-examination were not recorded by the Judge. The Judge then saidthat he informs Mr. Ragupathy (that is to say the defendant’s Counsel)that he is at liberty to retire from the case. Mr. Ragupathy then said,that he did not want to make any statement as to whether he wants the-permission of Court to retire from the case. Mr. Ragupathy then pro-ceeded to retire from the case. The defendant then informed the Court•that he did not -want to proceed with the case that day in view of the-position that was taken up by his Counsel. His Proctor was absent..The application for an adjournment was then allowed. The ease wasresumed on July 5, two days later, when the defendant was present inperson and applied that his case should be heard by another Judge. Hethen gave evidence and said that his reason for requiring the case to beheard by another Judge was that some of his evidence had not beenrecorded and also because the Court disallowed certain questions re-garding the account books. The District Judge then proceeded with the-hearing of the case. The defendant apparently took no part in the?Rearing and did not address the Court nor tender any documents inevidence. Subsequently judgment was given in favour of the plaintiffs-
576/ HOWAB.D 'C.J.—Arumugam and Qiva Sambn.'
We think jitc is obvious from the record of the evidence of the trial. thaL4the learned District Judge was asked to record the questions whichhe had disallowed v The learned District Judge has furnished us with anexplanation of. various allegations made in the petition of appeal and inthat-statement he does not deny the allegation that he was asked to recordthese questions and refused to do so. For this reason alone we thinkthat a new trial should be ordered. It is obvious that if there is no record■of the questions which Counsel wished to put to the witness in re-exami-nation, this Court is unable to say on appeal whether or not those-questions were relevant.
We, therefore, set aside the judgment in favour of the plaintiffs andorder a new trial by another Judge. The costs of the abortive _trialand of this appeal will abide the result of the new trial.
i>E Kretser J.—I agree.
Judgment set aside.New trial ordered.
ARUMUGAM, Appellant, and SILVA SAMBU,et al ., Respondent