071-NLR-NLR-V-63-D.-L.-L.-APPUHAMY-Appellant-and-K.-APPUSINGHO-and-another-Respondents.pdf
BASNA.YAKLE, C.J.—Appuhamy v. AppUsingho
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19.60 Present: Basnayake, C.J., and H. N. G. Fernando, J.L. L. APPUHAMY, Appellant, and K. APPUSINGHO and another.
Respondents
S. G. 17 {Inty.)—D. C. Kandy, 4843
Partition action—Twisting of documents—Cross-examination of party—Admissibilityof a document not included in the list of documents filed—Partition Act, No. 16 of1951, s. 19 (2) (a).
A document which has not been listed in accordance with the requirementsof section 19 (2) (a) of the Partition Act is nevertheless admissible in evidencefor the purpose of cross-examining a party in order to contradict him with aformer statement made therein by him inconsistent with his evidence.
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.A.PPEAL from an order of the District Court, Kandy.
W. de Silva, with D. G. W. Wichrema-sekera, for 2nd Defendant-Appellant.
N.E. Weerasooria. Q.G., with N. R. M. Daluivatte, for Plaintiff-Respondent.
December 14, 1960. Basnayake, C.J.—
The question for decision in this appeal is whether the District judgewas right in upholding the objection to the cross-examination of theplaintiff on the ground that the document w>th which counsel sought tocontradict him when giving evidence was not listed in accordance withthe requirements of section 19(2)(a) of tiie Partition Act No. 16 of 1951.That provision reads —
“ Every party to the action shall, not less than thirty days beforethe date of trial of the action, file or cause to be filed in court a list ofdocuments on which he relies to prove his right, share or interest to,
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BASNAYAKE, C.J.—Appuhamy v. Appuaingho
of or in the land together with an abstract of the contents of suchdocuments. No party shall, except with the leave of the court whichmay he granted on such terms as the court may determine, be at libertyto put any document in evidence on his behalf in the action if no suchlist as aforesaid has been filed by or on behalf of him in court, or if thatdocument is not specified in a list so filed, or if an abstract of thecontents of that document has not been so filed. ”
In the instant case counsel was seeking to produce the proceedings in aprevious case not in order to prove the rights or interests of the partywhom he represented in the land sought to be partitioned but to contradictthe witness with a previous statement made on oath in another legalproceeding. If the cross-examination of the witness had been permittedand the proof which learned counsel sought to adduce was allowed itwould have shown that the witness was not as reliable as the learnedJudge thought he was for he says in his judgment referring to that witness—“ I was impressed with the evidence of the plaintiff in this case. Thereis definitely a ring of tyuth in his evidence. ” Now it was this verything that learned counsel sought to negative, viz : that the plaintiffwas speaking the truth.
Learned counsel for the respondent does not reek to support the orderof the learned District Judge. He was wrong in ruling that counselwas not entitled to prove former statements by the witness inconsistentwith his evidence in the instant case or contradict him with statementsrelevant to the matters'in question made in previous legal proceedingsunless the documents used for the purpose of cross-examination were
included in the list filed under section 19 (2) (a).
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We set aside the judgment and direct that the case be sent back for atrial de novo. The appellant is entitled to the costs of the appeal and tothe costs in the lower court which we limit to the costs of the trial.
H. N. G. Fbknakdo, J.—I agree.
Order set aside.