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Present*: Bertram C.J. andDe Sampayo J.
56—D. 0. Puttalam, 14.
Summons—Duty of proctors to prepare summons and tender same toCourt—Civil Procedure Code, $s. 55 and 121 — Waste LandsOrdinance, No. 1 of 1897, s. 15.
Both under the Civil Procedure Code and in proceedings underthe Waste Lands Ordinance summons to witnesses must be preparedby the proctors and submitted to Court for issue ; the Secretaryis entitled to withhold any action for the purpose until forms havebeen submitted to him.
“ The rule is not a rigid one. There obviously must be a certainelasticity, otherwise there must be some hardship to the poorlitigants.*’
r~|~^HE facts appear from the judgment.
J. C. Pereira (with him Croos-Dabrera), for the appellant.
Akbar, Acting S.-G. (with him F. M. Fernando, G.C.), for therespondent.
September 7, 1920. Bertram C.J.—
This case raises a question of procedure under section 15 of theWaste Lands Ordinance, No. 1 of 1897. The-appellant in this casewas a claimant under that Ordinance, and, after the case had beenfixed for trial,, he filed a motion in the District Court applying forthe issue of summonses on certain witnesses. On a subsequent date—several’days before the trial date—he inquired from the Secretary
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whether the summonses had been issued. The Seoretary intimatedto him that the practice was, when summonses were applied for by aproctor, forthe proctor so applying tofumish the forms of summonsesfor signature. This was in effect an intimation~from the Seoretarythat before he could obtain an order for the issue of summonseshe required the claimant, who in this case was represented byproctors, to furnish forms for the purpose. The claimant tookno further steps on this intimation, but when the case came onfor trial he applied for an adjournment, on the ground that thewitnesses were not present, giving as a ground for their absence,that they were not duly summoned in accordance with the appli-cation. Thd District Judge refused an adjournment except onterms, these terms being that the claimant, whose action had ledto the other side being in attendance, should pay the costs of theother side of the day. The claimant refused to accept these termsor to take part in the subsequent proceedings, and the ^DistrictJudge, having heard the evidence of the Assistant GovernmentAgent, dismissed the action, with costs.
It was contended before us on the appeal, that under section 15the intention of the Legislature was, not only to provide a summarytrial of the issues arising in cases under the Ordinance, but to relievethe parties of obligations they have under the ordinary civil pro-cedure of taking steps to procure the attendance of their witnesses.The intention was, so it was argued, that when once the claimantor the Government Agent had intimated to the Court that herequired’ the attendance of certain witnesses, the Court shouldtake all necessary steps to procure their attendance, and itselfissue the summonses without requiring any assistance for the purposefrom the applicants. It was admitted that this was a departurefrom the existing practice under the Civil Procedure Code, but itwas maintained that this was the specific intention of the section.
With regard to that particular contention, it appears that it hasalready been before this Court in a previous case—Abeyeratne v.The Assistant Government Agent, Chilaw.1 In the argument beforethe District Court in that case this point was specifically raised,.and raised by the same proctors who appear in this case, in thefollowing words : “ The Waste Lands Ordinance enacts a cheapand inexpensive method of coming to trial. From reference upto judgment of the District Court all the burden of regular procedureis taken away both from the claimant and from the Crown’srepresentative. The Court itself has to see to all this. Partieshave nothing to do with filing of lists of witnesses, summoning ofwitnesses, &c.”
That contention was disallowed, and the costs allowed in that caseincluded charges by the Crown Proctors for preparing summonsesfor their witnesses. The decision of the District Judge in that
Corea v.AssistantGovernmentAgent,Puttalam
1 (1919) 6 C. W. R. 82.
( 174)
Corea v.
A eeislanlGovernmentAgent,Puttalam
oase was challenged before this Court, and in the judgment itwas decided that under the Ordinance the parties “ may have legalassistance from the beginning. The expenses are chargeable ascosts in the ordinary way.” These expensesso held to be chargeable,as I have said, include costs of the preparation of summonses, andit seems to me that this decision is in effect a decision that theordinary provisions of the Civil Procedure Code, which allow allparties who have incurred expenses in the way of preparation ofthose documents to recover them from the other side, are applicable.It seems to me that the allowing of these expenses impliedly negativethe contention that the intention of section 15 of the Waste LandsOrdinance was to bring into force a special procedure which was tobe different from the practice hitherto observed. It is not clear,however, that the point was explicitly pressed upon the notice ofthe Court on appeal. In any case the distinction between the pro-cedure under the Ordinance and the procedure under the Codeis not made out. If in section 15 the words “the Judge shallissue a summons ” imply that the Court must itself prepare thesummons, the words “ the Court shall order a summons to issue ”in section 55 of the Code and “ the parties may …. obtain,on application to the Court ■. . . . summonses ” in section121 must have the same implication.
But Mr. H. J. C. Pereira did not rest his case upon this contentionalone. He said that, both under section 15 of the Waste LandsOrdinance and under the Civil Procedure Code, the intention ofthe Legislature was that the Court, and not the parties, shouldprepare the documents which the Court was asked to issue. Heargued this more particularly in regard to section 55 of the CivilProcedure Code. But he was prepared to admit that under section121 that intention was, at any rate, less apparent. .He maintainedthat, where in section 55 the Code says “ the Court shall order asummons to issuo,” and where in section 15 of the Waste LandsOrdinance it is enacted “ such Judge shall issue a summons forsuch purpose ” it was the business of the Court itself to prepare thesummons. Admittedly, this has not been the practice. Admittedly,when any party desires to obtain the issue of a summons from theCourt, whether a summons against the original defendant undersection 55,- or a summons to procure the attendance of witnessesunder section 21, he tenders a form for the purpose. It is, moreover,pointed out by the Solicitor-General that the Code expressly con-templates that these forms shall be prepared by the proctors forthe parties who desire them. The schedule includes items inrespect of making copies of documents for service on parties :drawing summons, subpoena, and making copy or translation ofthe documents above referred to.
. The question which we really have to decide, is this. Bothunder section 15 of the Waste Lands Ordinance and under sections
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55 and 121 of the Civil Procedure Code is the. Secretary of the Courtentitled to withhold any action for the purpose of the issue of asummons until the party desiring* the issue of that summons hasfurnished a form for the purpose ? After very careful consideration,I have come to the conclusion that we must answer that questionin the affirmative. The Code nowhere says, and the Ordinancenowhere says, that it is for the Court to procure the summons.It merely says that the Court “ must issue ” or “ order its issue.”It seems to me that the Code contemplates that these documentsshall be prepared by the proctors for the parties. I do not saythat the rule is a rigid one. There obviously must’ be a certainelasticity, otherwise there might be sorne hardship to poor litigants,both under the Code and under the Ordinance, if when they are notbeing represented by proctors they are required to prepare doou-* ments, the nature of which they may not understand, and in sucha case I imagine a special order of the Court may be sought for.
I hope that any Secretary in such case would bring the matter tothe notice of the Judge. But we have to interpret those provisionspartly in the light of the express provision of the Code—I refer tothe items in the sohedule—and partly in the light of practice.
I do not think that we can lay down a rule that the practice is anerroneous one, and it appears to me, therefore, that the Secretarywas right in acting in accordance with the practioe in the presentinstance. This no doubt works out with a certain severity againstthe appellant. But, although Mr. Pereira said that the appellantis entitled, if he thinks fit, to insist on his legal rights and to takeaction accordingly, if he does take the responsibility of so actinghe has to abide by the result. In this case, if the appellant wishedto obtain a decision of the Court upon this specific point, and ifhis procedure was not merely in the nature of strategy, he wouldsurely have requested the Secretary to bring the matter before theCourt, so that an order of the Court might be made before thoserepresenting the Assistant Government Agent had oome downprepared to argue the whole case. There was the Assistant Govern-ment Agent of Chilaw in attendance, and if the plaintiff disputedthe correctness of the practice, he could have asked the Secretaryto obtain a specifio order of the District Judge. He did not takethat course, but preferred to take his point when the trial date wasreached and when both parties were in Court. In the circumstances,it seems to me that the order of the District Judge must be upheld,and the appeal must be dismissed, with costs.
Oorea v.AssistantGovernmentAgent,Pvttalam
De Sampayo J.—I agree.
Appeal dismissed.