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 1 Sri L.R
LAKSIRI FERNANDOCOURT OF APPEALAMARATUNGA, J. ANDWIMALACHANDRA, J.
C. COLOMBO 25099/MRMAY 11, 2004
Civil Procedure Code, sections 428 and 839 – Does section 428 permit courtto issue a commission to E.Q.D.? – Local investigation – Inherent powers -Evidence Ordinance, section 45 – Partition Act, section 26 – Cursus curiae .
The petitioner’s application for a commission on the Examination ofQuestioned Documents (E.Q.D.) was refused on the ground that section 428of the Civil Procedure Code does not permit court to issue a commission to the
Q.D. and that there is no other provision in the Civil Procedure Code to issuea commission of this nature to the E.Q.D.
Per Wimalachandra, J.
“In my view “local investigation” (S.428) is not confined to an investigationwith regard to a place or premises. Section 428 speaks of a situation wherethe court thinks it fit to issue a commission for a local investigation for the pur-pose of elucidating any matter in dispute. It does not necessarily mean aninvestigation with regard to a place or premises."
Per Wimalachandra, J.
“Everyday practice in the courts shows that Judges often order the issue ofcommissions to the E.Q.D. Even if there is no specific provision in the C.P.C.for that purpose, the Court can exercise its inherent powers under S. 839C.P.C. to make an order to issue a commission to the E.Q.D.”
APPLICATION for leave to appeal from the order of the District Court ofColombo with leave being granted.
Laksiri Fernando (Wimalachandra, J.)
Cases referred to:
CAL A 247/2001 D.C. Morawaka – M 25 IT – CAM 3.9.2001
Hewavitharana v Themis Silva – 63 NLR 68
Narasinghedas v Mangel Dubey – (1883)5 Allahabad 163 at 175
Podihamy v Simon Appu – 47 NLR 503 at 504.
Wickrematilake v Marikkar etei-2 NLR 9
Re.Chelwell 8 Ch. D. 506
Manohara. R. de Silva for petitioner.
V. Kulatunga for respondent.
June 3, 2004
WIMALACHANDRA, J.The plainjiff-petitioner (hereinafter referred to as the petitioner) o1instituted this action against the defendant-respondent (hereinafterreferred to as the respondent) claiming damages in a sum ofRupees One Million from the respondent for the injury caused tothe petitioner by a defamatory statement made by the respondent.
When the matter came up for trial the petitioner moved for aCommission to be issued to the Examiner of QuestionedDocuments (EQD) to examine the said defamatory statementmarked “P1”. It was opposed by the defendant. The court directedthe parties to tender written submission on the aforesaid applica- 10' tion made by the petitioner. Thereafter the learned AdditionalDistrict Judge made order dated 16.10.2001 refusing the petition-er’s application for a commission to be issued to the Examiner ofQuestioned Documents.
It is against this order that the petitioner has sought relief by wayof leave to appeal. The court granted leave to appeal and the mat-ter was argued after filing written submissions by both parties.
The learned Additional District Judge in his order for the rejec-tion of the petitioner’s application has taken the view that section428 of the Civil Procedure Code does not permit the court to issue 20a commission to the Examiner of Questioned Documents and that
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there is no other provision in the Civil Procedure Code to issuecommissions of this nature to the Examiner of QuestionedDocuments. The learned Judge in his order has stated as follows:(thus)
“62S 428 QeoaftScs Oafcaf epSzsidcSoQ cSOoSSzs) 8®8®€SS6®0 epQcsaB 0255 3©d030235 I® £3®€S. C3j2552550g23> 6(^02550255cs^SzrfQecaesJ aps508235^25) eOzn ezs3§c3®2s5 jS3z^2sJ S8©0
0® 0CD2rf2So 000255 g2S032;2S5 C3OC30 255^255. 06®2S5® 80(3 255§
803255 C3»geSD6cJ 602S5255 00025529 00625500^29 Q 29 £3 02; 255 255^2030
SO e^eb^S s8.”
Section 428 of the Civil Procedure Code reads as follows:
“In any action or proceeding in which the court deemsa local investigation to be requisite or proper for the pur-pose of elucidating any matter in dispute or of ascertain-ing the market value of any property, or the amount of anymesne profits or damages or annual net profits, and thesame cannot be conveniently conducted by the" judge inperson, the Court may issue a Commission to such per-son as it thinks fit, directing him to make such investiga- 40
. tion and to report to Court.”
The learned Additional District Judge has given a narrow inter-pretation to the words “Local Investigation" in section 428 of theCivil Procedure Code.
In my view, “Local Investigation” is not confined to an investiga-tion with regard to a place or premises as stated by the learnedJudge. It is to be noted that the first limb of section 428 speaks ofa situation where the court thinks it fit to issue a commission for alocal investigation for the purpose of elucidating any matter in dis-pute. It does not necessarily mean an investigation with regard to a soplace or premises.
Every day practice in these Courts shows that judges oftenorder the issue of Commissions to the Examiner of the QuestionedDocuments. In an unreported caseC), the Court of Appeal directedthe District Judge to issue a commission to the Examiner ofQuestioned Documents.
In any event the court has inherent power to issue commissionsto ascertain the authenticity of a document. The court has often in
Laksiri Fernando (Wimalachandra. J.)
the course of a trial or an inquiry resorted to expert evidence whichinvolves the knowledge of a special, technical or scientific nature.Section 45 of the Evidence Ordinance makes expert evidence rel-evant in certain situations.
Even if there is no specific provision in the Civil Procedure Codefor that purpose, the Court can exercise its inherent powers undersection 839 of the Civil Procedure Code to make an order to issuea commission to the Examiner of Questioned Documents.
Sarkar in his Code of Civil Procedure volume 1 at page 842,states;
“Where a contingency happens which has not been antic-ipated by the framer of the Civil Procedure Code, andtherefore no express provision has been made on thatbehalf, the Court has inherent power to adopt such pro-cedure, if necessary to invent a procedure, as may.dosubstantial justice, and shorten needless litigation.”
In the case of Hevavitharana v Themis SilvaM, Thambiah, J.,held that section 26 of the Partition ActWdoes not exhaust all theorders which a Court could make and the Court has the inherentpower under Section 839 of the Civil Procedure Code, to make anorder excludjng a lot which has been wrongly included in the cor-pus. In support of his view Thambiah, J. cited the following obser-vation made by Mahmood, J. in Narasingh Das v Manga! Dube/3)175.
“Courts are not to act upon the principle that every pro-cedure is to be taken as prohibited unless it is expresslyprovided for by the Code, but on the converse principlethat every procedure is to be understood as permissibletill it is shown to be prohibited by the law. As a matter ofgeneral principle prohibitions cannot be presumed."
In the instant case, the learned Judge has refused the plaintiff-petitioner’s application for a commission to be issued to theExaminer of Questioned Documents to examine the document ‘P1’annexed to the plaint solely on the basis that there is no provisionin the Civil Procedure Code to issue of such a commission.
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It is my view that the learned Judge has erred when he hadcome to the conclusion that there are no provisions in law to issuea commission to the Examiner of Questioned Documents. In anyevent the learned Judge could have used the inherent powers ofCourt in terms of section 839 of the Code following the Cursus curi-ae of the original Courts, as sanctioned by the Superior Courts.
By way of a final comment on this matter it would be appropri- 100ate to refer to the following observation made by Dias, J. inPodihamy v Simon AppiA4> at 504.
“It is well to remember that a Court should not be fet-
tered by technical objections on matter of procedure”.
It has to be noted that even as far back as 1895 the thinking ofthe Supreme Court was that the Court should not be trammelled bytechnical objections on procedural matters. In the case ofWickramatilake v Marikkad5) at page 12 Withers, J. commenting onthe technical objections observed:-
“…….I think the District Judge should not have given no
effect to the technical objection which was raised. I com-mend to his attention, as to that of all other Judges of firstinstance, the observations of Jessel, M.R., in reChenwell,(6>
It is not the duty of a Judge to throw technical difficul-ties in the way of the administration of Justice, butwhen he sees that he is prevented from receivingmaterial or available evidence merely by reason of atechnical objection, he ought to remove the technicalobjection out of the way upon proper terms as to costs 120and otherwise.”
For the foregoing reasons, I allow the appeal and set aside theorder of the Additional-District Judge dated 16.10.2001 and thelearned Additional District Judge is directed to issue the saidCommission to the Examiner of Questioned Documents and call forthe report. In all the circumstances I make no order as to costs ofappeal.
AMARATUNGA, J. – I agree.
ARYARATNE v. LAKSIRI FERNANDO