115-NLR-NLR-V-70-B.-V.-PERERA-Appellant-and-P.-AMBALAVANAR-Respondent.pdf
H. N. G-. FERNANDO, C.J.—Perera v. Ambalavanar
563
1968 Present: H. N. G. Fernando, C.J., T. S. Fernando, J., andSamerawickrame, J.V. PERERA, Appellant, and P. AMBALAVANAR, RespondentS. C. 16/66—D. G. Colombo, 61967/M
Postponement—Refusal despite production of medical certificate—Duty of Court tohave considered whether the medical certificate was authentic.
On the first date of trial, despite the production of a medical certificateBtating that the 1st defendant waa unfit to attend Court, an application made onhis behalf for postponement was refused and the Court proceeded to trial andto judgment without the 1st defendant having any chance to establish thatthe request for postponement was made on proper grounds.
Held, that there should be a fresh trial.
Appeal from a judgment of the District Court, Colombo.
NimaZ Senanayake, with Miss Adela P. Abeyratne, for 1st Defendant-Appellant.
H. Rodrigo, for Plaintiff-Respondent.
Cur. adv. vult.
June 13, 1968. H. N. G. Fernando, C.J.—
This was an action against two defendants for a sum of Rs. 50,000,the claim being based on an allegation that the plaintiff had entrustedhis lorry to the 1st defendant for repairs and that the lorry had netbeen returned to the plaintiff. The 1st defendant^ answered that theplatntiff had IhileTl to pay the bill for the repair of the lorry and that thelorry had been retained for that reason.
564
Rznaweera v. Commissioner of Inland Revenue
On the first date of trial, counsel appearing for the 1st defendantfiled a medical certificate to the effect that “ Mr. B. V. S. Perera isBuffering from Fibrositis of the pectoral muscle on the left side. Hewill not be fit to attend Court tomorrow and for about one week there-after ”, and moved for an adjournment. Counsel for the plaintiffobjected, stating that he did not admit the genuineness of the medicalcertificate. The trial Judge refused the application for an adjournment,whereupon counsel for the 1st defendant withdrew from the case. Thetrial was held immediately thereafter as against the 1st defendant,counsel for the plaintiff having informed the Court that no relief wasclaimed against the 2nd defendant.
J[ do not understand why the trial Judge acted so precipitately. Themedical certificate has all the appearances of genuineness, and, if thestatement made in it was correct, the 1st defendant was not fit to attendCourt. When plaintiff’s counsel objected to the grant of an adjournmentand challenged the genuineness of the certificate, the simple and propercourse for the Court was to require the 1st defendant’s counsel to provethe authenticity of the certificate. If the Judge in his discretion con-sidered that the costs of the day should be borne by the 1st defendant,an order to that effect could have been made. Instead, the Courtproceeded to trial and to judgment without the 1st defendant havingany chance to establish that his request for a postponement "was madeon proper grounds.
The judgment and decree are set aside, and a fresh trial will be heldon a date to be fixed by the District Judge. The costs of this appealwill abide the final result of the action.
T. S. Fernando, J.—I agree.
Samebawickbame, J.—I agree.
Case sent bach for a fresh trial.