Dalton Wijeyeratne v, Hermine Wijeyeratne and Others
G. P. S. DE SILVA, C. J„
KULATUNGA, J„ ANDRAMANATHAN, J.
S.C. APPEAL NO. 47/92
A. APPEAL NO. 569/82 (F)
C. GAMPAHA NO. 16317/PAPRIL 4th, 1993.
Partition – Rights of plaintiff to call defendants as witness – Competent witnessand compellable witness – Section 120 of the Evidence Ordinance – Sections121 and 175 (1) of the Civil Procedure Code.
At the trial of the partition action the plaintiffs were absent but they wererepresented by Counsel. The only parties present were the 2nd end the 6thdefendants who were also represented by Counsel. It was the position takenup by the defendants that the plaintiffs had no rights in the land sought to bepartitioned and the 2nd defendant is its sole owner. On that basis they soughtthe dismissal of the action. Counsel for the plaintiffs sought the permission ofthe Court to call either the 2nd or the 6th respondent. This was opposed byCounsel for the 2nd and 6th respondents whereupon the Court refused theapplication and dismissed the action.
Sri Lanka Law Reports
[1993} 1 SriLR.
Section 120 (1) of the Evidence Ordinance read with the second provisoto Section 175 (1) of the Civil Procedure Code does not enable one party tocompel the other party to give evidence ; and that Section 175 (1) of the Codedoes not go beyond conferring a discretion on the Court to permit a party tobe called as a witness despite his name being not listed as required by Section121 of the Code.
Although in a partition action all the parties have the double capacity ofplaintiff and defendant, the general principle has its limitation and that in viewof the position taken up by the defendants, the District Judge exercised hisdiscretion rightly in refusing permission to the plaintiffs to call the defendants aswitnesses.
Per Kulatunga J.
’The learned District Judge cannot be faulted for
exercising his discretion against the application to call one of the defendants as
a witness for the plaintiff; and that the dismissal of action
for non-prosecution is justified by the provisions of s. 70 of the Partition Law*
Case referred to :
Gunatilake v. Ratnayake (1908) 2 Matara Reports 19.
APPEAL from a judgment of the Court of Appeal.
S. Sivarasa with E. R. S. R. Coomaraswamy (Jr.) and Sampath Welgampolafor 2nd defendant – appellant.
N. R. M. Daluwatte, P.C. with M. de Silva for plaintiffs-respondents.
Cur. adv. vult.
April 02, 1993.
G. P. S. DE SILVA, C.J.
The plaintiffs filed these proceedings in February 1971 to partitionthe land called Urukanugahawatta alias Etaheraliyagahawatte. Thecase came up for trial on 26th November 1982. On that date theplaintiffs were absent but were represented by counsel. The onlyparties present in court were the 2nd and 6th defendants. At thecommencement of the proceedings, counsel appearing for theplaintiffs sought the permission of court to call either the 2nd or the6th defendant, as a witness. He stated that he was seeking to prove
Dalton Wijeyeratne v. Hermine Wijeyeratne and Others(G. P. S. de Silva, C.J.)
the pedigree by calling the 2nd or the 6th defendant. Counsel appearingfor the 2nd defendant and the counsel appearing for the 6th defendantopposed the application made by counsel for the plaintiffs. Counselfor the plaintiffs further stated to court that he was not moving fora postponement of the proceedings. The District Judge refused theapplication of counsel for the plaintiffs and dismissed the action. Anappeal was preferred against the judgment of the District Court tothe Court of Appeal. The Court of Appeal set aside the judgmentof the District Judge dismissing the plaintiff's action, and sent thecase back for trial de novo. The 2nd defendant has now appealedto this court against the judgment of the Court of Appeal.
In order to consider the correctness of the order made by theDistrict Court, it is of the utmost importance to note that the 2ndto the 6th defendants filed a joint amended statement of claim whereinthey prayed for a dismissal of the action and specifically denied thatthe plaintiffs have any rights in the corpus; they further pleaded thatthe entirety of the corpus belonged to the 2nd defendant alone. Itis therefore clear that this is not a partition action wherein thedefendants have conceded rights in the corpus to the plaintiffs. Theshort point for decision is whether on the facts and circumstancesof this case the District Judge correctly exercised his discretion inrefusing the application made on behalf of the plaintiffs to call the2nd or the 6th defendant as a witness.
Mr. Daluwatte for the plaintiffs-respondents submitted that section120 (1) of the Evidence Ordinance read with the second proviso tosection 175 (1) of the Civil Procedure Code enables a party to anaction to be called as a witness " against his wishes ", the onlyrestriction being that such witness cannot be treated as a " hostilewitness ". Section 120 (1) of the Evidence Ordinance reads thus;
" In all civil proceedings the parties to the suit and the husband orwife of any party to the suit shall be competent witnesses Thepoint to be noted is that this section makes parties to the suitcompetent witnesses but it certainly does not expressly makethem compellable witnesses. Further, section 120 of the EvidenceOrdinance appears to imply that one party cannot compel the otherparty to give evidence in a civil suit. The second proviso to section175 (1) of the Civil Procedure Code does not go beyond conferringa discretion on the court to permit a party to be called as a witnessdespite his name not being included in the list of witnesses required
Sri Lanka Law Reports
 1 Sri L.R.
to be filed in terms of section 121 of the Civil Procedure Code. Itherefore cannot agree with the contention that section 120 (1) ofthe Evidence Ordinance read with the second proviso to section 175(1) of the Civil Procedure Code enables one party to compel the otherparty to give evidence. It is right to add that counsel did not referto any other provision of law which confers a power on the courtto compel a party to give evidence on behalf of the opposing party.
The Court of Appeal set aside the judgment of the District Courton the ground that" the mere refusal on protest by the 6th defendantto testify on oath was not sufficient and his evidence on oath should
have been recorded for what it is worth". The principle invoked
was that in a partition action ■ all the parties have the double capacityof plaintiff and defendant. * But it seems to me that the applicationof this general principle has its limitations in a case where thecontesting defendants have taken up the position (i) that the plaintiffshave no rights at all in the corpus, (ii) that the 2nd defendant is thesole owner of the entirety of the land sought to be partitioned ; (ill)the relief sought is the dismissal of the action. It is these crucial andrelevant facts which have been stressed by the District Judge in hisjudgment refusing the application made on behalf of the plaintiffs tocall the 2nd or the 6th defendant as a witness.
In my view, it cannot be said that the District Judge erred inthe exercise of his discretion, having regard to the particular factsand circumstances of this case. I accordingly allow the appeal, setaside the judgment of the Court of Appeal and restore the judgmentof the District Court.
In all the circumstances, I make no order for costs of appeal.RAMANATHAN, J. – I agree.
I have perused, in draft, the judgment of my Lord The Chief Justice.
I am also of the opinion that S. 120 (1) of the Evidence Ordinanceread with S. 175 (1) of the Civil Procedure Code does not enableone party to compel the other party to give evidence in a civilsuit ; and that S. 175 (1) of the C. P. C. does not go beyond adiscretion in the Court to permit a party to be called as a witness
Dalton Wijeyeratne v. Hermine Wijeyeratne and Others (Kulatunga J.)
despite the failure to list him as required by S. 120 (2) of the Code.In Gunatillake v. Ratnayake (,) Wendt J. seu'd :
" Neither the law nor common sense sanctions your callingyour opponent as your witness “
The learned Counsel for the plaintiffs-respondents did not referto any other provision of law which empowers the Court to compela party to give evidence on behalf of his opponent presumablybecause as Mr. E. R. S. R. Coomaraswamy observes :
* The question whether in civil cases, one party can compelthe other party to give evidence on his own behalf is not specificallydealt with in any statute “
Law of Evidence in Ceylon (1955) P 399.
The written submissions filed on behalf of the 2nd plaintiff-respondent seek to support the application made on the day of thetrial to call, (on behalf of the plaintiff-respondents) one of thedefendants, on the basis of sections 25 (1) and 70 of the PartitionLaw. S. 25 (1) provides, inter alia, that on the date of the trial" the Court shall examine the title of each party and shall hear andreceive evidence". S. 70 provides that" no partition action shall abateby reason of the non-prosecution thereof, but if a partition action isnot prosecuted with reasonable diligence after the Court hasendeavoured to compel the parties to bring the action to a termination,the Court may dismiss the action ". It is submitted that (by refusingto compel a defendant to give evidence) the learned District Judgehas failed to make such endeavour. I
I am of the view that in the circumstances of this case, wherethe 2nd respondent claimed to be the sole owner of the corpus soughtto be partitioned and the relief sought by the defendants was thedismissal of the action on the basis of such sole ownership, thelearned District Judge cannot be faulted for exercising his discretionagainst the application to call one of the defendants as a witnessfor the plaintiffs; there was no further duty to be discharged by himin respect of the action and that the dismissal of the action for non-prosecution is justified by the provisions of S. 70 of the Partition Law.
Sri Lanka Law Reports
For the foregoing reasons, I agree with the judgment of my LordThe Chief Justice to allow the appeal, set aside the judgment of theCourt of Appeal and restore the judgment of the District Court, butwithout costs of appeal.
DALTON WIJEYERATNE v. HERMINE WIJEYERATNE