036-SLLR-SLLR-2008-V-1-BIBILE-v.-BADUGE.pdf
374Sri Lanka Law Reports[2008] 1 Sri L.R
BIBILEv
BADUGECOURT OF APPEALWIMALACHANDRA, J.
ERIC BASNAYAKE, J.
CALA 496/2005DC NEGOMBO 4973/L.
JULY 2, 2007
Civil Procedure Code – Section 121 (2) – Section 175 – List of witness'documents – Plaintiffs – Special circumstances referred to in Section 175 -Witness in defendants' list ?
The instant action was filed on 13.12.1994. On 4.12.1996 and 16.7.2001 twolists of witnesses were filed on behalf of the plaintiff. The plaintiff moved for aCommission on 11.3.2001. The trial was on 1.8.2001. Commission was receivedby Court on 1.4.2003. Trial was taken up on 11.9.2003. After the evidence of theplaintiff was concluded a list containing the name of the Commissioner was filedon 1.02.2005. When the witness was called to give evidence objection wastaken that his name was in the list filed long after commencement of the trial. TheDistrict Court upheld the objection.
On leave being sought,
Held:
The witness to be called is the Surveyor who made the plan on a Commissionissued by Court. The name of the witness and the plans prepared by him werelisted in the list of witnesses as well as in the list of documents filed by thedefendant.
_Bibile v Baduge
CAy375
(Eric Basnayake, J.)
These are special circumstances referred to in Section 175 (1).
APPLICATION for leave to appeal from an order of the District Court ofNegombo.
D.M.G. Dissanayake for plaintiff.
Defendant-respondent is absent and unrepresented.
Cur.adv.vult.
February 11,2008ERIC BASNAYAKE, J.
The plaintiff petitioner (plaintiff) is seeking to have the order of thelearned Additional District Judge of Negombo dated 1.12..2005 setaside. By this order the learned District Judge had disallowed theplaintiff to call Lakshman Gunasekera Licensed Surveyor as awitness.
On 20.8.2002 the Court issued a commission at the instance ofthe plaintiff on Lakshman Gunasekera Licensed Surveyor. Thiscommission was returned on 1.4.2003. The trial commenced on11.9.2003 on which date the plaintiff began his evidence. Herevidence was concluded on 30.9.2004. A list containing the name ofthis witness was filed in Court on 1.2.2005 this witness was called togive evidence to which the learned Counsel appearing for thedefendant objected. The learned Judge upheld the objection andrefused to allow this witness to give evidence. One reason fordisallowing this witness was that the list containing the name of thiswitness was filed long after the commencement of the trial in thiscase. The list was filed after the conclusion of the plaintiff's evidence.Thus depriving the defendant from asking questions based on thisplan from the plaintiff.
This action was filed on 13.12.1994. Thereafter on 4.12,1996 and
two lists of witnesses and documents were filed on behalfof the plaintiff. The plaintiff moved for a Commission on 11.3.2001.This case was taken up for trial on 1.8.2001. The Commission wasreceived by Court on 1.4.2003. Thereafter the case was taken up fortrial on 11.9.2003. By this time the name of this witness was notincluded in to the list. However the defendant named this witness ina list filed by him together with the plan No. 2088 of 23.3.2003.
376Sri Lanka Law Reports[2008] 1 Sri L.R
Section 121 is as follows:(1) Not reproduced.
Every party to an action shall notless than fifteen days before the datefixed for the trial of an action, file orcaused to be filed in court after notice tothe opposite party (a) a list of witnessesto be called by such party at the trial, and(b) Not reproduced.
Section 175 is as follows:(1) No witness shall be called on behalf
of any party unless such witness shallhave been included in the list ofwitnesses previously filed in Court bysuch party as provided by section 121.
Provided however, that the Court may inits discretion, if special circumstancesappear to it to render such a courseadvisable in the interest of justice, permita witness to be examined, although suchwitness may have been included in suchlist aforesaid.
Provided also that any party to an actionmay be called as a witness without hisname having been included in any suchlist.
The witness to be called is a Licensed Surveyor who made a planon a commission issued by Court. The name of this witness and theplan prepared bv him were listed in the list of witnesses as well as in thelist of documerts filed bv the defendant. These could be considered asspecial circumstances referred to by the aforesaid section.
Considering the above facts I am of the view that the learnedJudge had erred in disallowing this witness. Further I cannotunderstand why the learned Counsel appearing for the defendantobjected to this witness being called after having named him in theirown list. The order of the learned District Judge is therefore set asidewith costs. This application is allowed.
WIMALACHANDRA, J. – I agree.
Application allowed.