018-SLLR-SLLR-2006-V-3-DHARMARATNE-vs.-DASSENAIKE-AND-OTHERS.pdf
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DHARMARATNEVSDASSENAIKE AND OTHERSCOURT OF APPEAL.
SOMAWANSA., J (P/CA).
WIMALACHANDRA. J.
CALA 304/2004. (LG)
DC COLOMBO 16858/L.
MARCH 17. 2006.
Judicature Act, 2 of 1978 – Amended by Act No.27 of 1999 – trial de novo -Section 48 – Case concluded before a different judge – Could the judgmentbe written by another – Applicability of Section 48 – Civil Procedure Code'Section 184 and Section 185.
The judgment was fixed for 02.09.2003. Before the judgment could bedelivered the trial tudge was .elevated as a judge of the High Court andproceeded abroad on leave. On 12.03.2004 the successor in office asDistrict judge transferred the case to the Additional District judge for thepurpose of delivering the order. When the case was called the 1st and 2nddefendants made an application to Court that the case be heard de novo.The plaintiff objected. The Additional District judge refused the applicationfor a trial de novo and fixed the case for judgment.
HELD:
In view of the provisions of section 48 of the Judicature Act – asamended a party to an action has no right to demand a trial denovo but where an application is made for a trial de novo there isa discretion vested in the judge to decide whether a trial de novoshould be ordered or not.
The 1st defendant – respondent has set up a claim on the basis ofprescriptive title and the 2nd defendant- petitioner claimed on a
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title deed coming from the 1st defendent. The claim of prescriptiondepends to very great extent upon oral testimony which in turnmakes the impression created by the witness an important factorin determining the question of fact.
The‘District judge has erred in law in not considering that the case
for the defendants mainly depend on evidence and not documents,
. and the District judge should have given consideration to this"-aspect of the matter when he was apprised of these facts.
Per Andrew Somawansa. J, (P/CA):
“ Discretion given to a judge must be exercised according to the rules ofreason and justice, not according to private opinion, according to law andnot humour, its exercise must be uninfluenced by irrelevant considerationmust not be arbitrary, vague and fanciful but legal and regular, and it mustbe exercised within the limit to which an honest man competent todischarge his office ought to confine himself’.
APPLICATION for leave to appeal from an order of the District judge ofColombo., with leave being granted.
Cases referred to :
Mohota vs Sarana – 62 CLW 37
Saravanamuttu vs Saravanamuttu – 61 NLR 1
Kulathunga vs Samarasinghe 1990 – 1 Sri LR 244
Edwin vs De Silva – 62 NLR 44
Sharp vs. Wakefield 1891 AC 173 at 179
Wijewardena vs Lenora – 60 NLR 457 at 463
Osenton and Co. vs. Johnson 1941 2 All ER 245 at 250
Parakrama Agalawatte with M. de Gunatilake for defendant – petitioner.Gamini Marapana PC with Kushan de Alwis for plaintiffs – respondents.
Cur adv. vult.
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March 17, 2006.
ANDREW SOMAWANSA, J. (P/CA).This'is an application seeking leave to appeal but the prayer doesnot specify from which order leave is sought, thereafter to hear theappeal and make order that the instant case be heard de novo. The2nd defendant- petitioner also supported and obtained interim reliefstaying proceedings in the District Court operation of which has beenextended from time to time.
As per minute dated 21.09.2004 leave to appeal has been grantedon the following question :
Has the learned Additional District judge correctly exercisedhis discretion in terms of section 48 of the Judicature Act whenhe refused the application for a trial de novo ?.
The relevant facts are, at the conclusion of the trial the learnedDistrict judge fixed the date of pronouncement of judgment for
However before the judgment could be delivered the learnedDistrict judge who heard the case was elevated as a judge of the HighCourt and proceeded abroad on leave. On 12.03.2004 the successorin office as District judge of Colombo transferred the case to thelearned Aditional District judge of Colombo sitting in Court No.2 for thepurpose of delivering judgment on the evidence already recorded. Onthe same day when the case was called in Court No.2 counsel for the1 st and 2nd defendants made an application to Court that the case beheard de novo in as much as the entire trial had been concluded beforethe predecessor in office of the District Judge of Colombo. Counsel forthe plaintiff – respondent objected to the said application on the basisthat rights of a party to move for a trial de novo had been taken awayby the Judicature (Amendment) Act No.27 of 1999. Parties werepermitted to file written submissions and the learned Additional Districtjudge by his order dated 03.07.2004 refused the application for a trial
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de novo and fixed the case for judgment on the evidence alreadyrecorded holding that Court has power to hear the case de novo, ifCourt considers it appropriate but that great prejudice will be causedspecially to the plaintiff- respondent if the trial de novo takes a longtime to conclude. In appears that it is from this order that the 2nddefendant- petitioner is seeking to appeal.
Counsel for the 2nd defendant – petitioner submits that the learnedDistrict Judge erred and/or misdirected himself when he arrived at thefinding that great prejudice will be caused especially to the plaintiffsby the delay involved in the event of a trial de novo. He submits thateven though the action had been filed as far back as 1994, the trialhad commenced only by about 1999, the period in between havingbeen consumed by the various pre-trial stages. The hearing of the saidtrial had concluded prior to 02.09.2003. If a trial de novo were to beheld, no time would be spent on pre-trial stages as those steps havealready been taken and no inordinate delay is likely under normalcircumstances. No greater prejudice if any will be caused to the plaintiffthan to the defendants by the delay involved in trial de novo and thatthe defendants are not in any way responsible for the present delay inconcluding the case.
Counsel also submits that the learned Additional District Judge erredand/or misdirected himself when he arrived at the finding that theauthorities cited on behalf of the 1 st and 2nd defendants have noapplication as they have all been decided prior to the enactment of theJudicature (Amendment) Act No. 27 of 1999 which amended the provisoto Section 48 of the Judicature Act No.02 of 1978. It is submitted thatthe said authorities which laid down as being imperative the requirementthat the judge who saw and heard the witnesses should write thejudgment while the impression created by the witnesses and the finerpoints of the evidence was still fresh in his mind, are judicialinterpretations not of section 48 of the Judicature Act but of sections
A
184 and 185 of the Civil Procedure Code and that they continue to begood law. I would say there is force in this argument.
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It would be useful at this stage to examine section 48 of theJudicature Act No.02 of 1978 as amended by Act No.27 of 1999 whichreads as follows:
"In the case of death, sickness, resignation, removal from office,absence from Sri Lanka, or other disability of any judge before whomany action, prosecution, proceeding or matter, whether on any inquirypreliminary to committal for trial or otherwise, has been instituted or ispending, such action, prosecution, proceeding or matter may becontinued before the successor of such judge who shall have power toact on the evidence already recorded by his predecessor, or partlyrecorded by his predecessor and partly recorded by him or, if he thinksfit, to re-summon the witness and commence the proceedings afresh :
Provided that where any criminal prosecution, proceeding or matter(except on an inquiry preliminary to committal for trial) is continuedbefore the successor of any such judge, the accused may demandthat the witnesses be re-summoned and re-heard."
It could be seen that in view of the provisions contained in section48 of the Judicature Act No.02 of 1978 as amended a party to anaction have no right to demand a trial de novo but where an applicationis made for a trial de novo there is a discretion vested with the judge todecide whether a trial de novo should be ordered or not.
It is contended by counsel for the plaintiffs – respondents that theonly basis upon which the impugned order of the learned District Judgecould be challenged by the 2nd defendant – petitioner is on the basisthat he had not properly exercised the discretion vested in him bysection 48 of the Judicature Act No.02 of 1978 as amended. But ifCourt were to examine the several averments in the petition tenderedby the 2nd defendant – petitioner Court will observe that the 2nddefendant does not challenge the validity of the order on that score atall. This appears to be an incorrect statement for it appears that groundsof appeal urged in paragraph 12(c) and(d) pertain to the question of
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exercise by the learned District judge of the discretion conferred bythe aforesaid section 48 of the Judicature Act No.27 of 1999 asamended. The aforesaid paragraph 12(c) and (d) reads as follows:
" As is reflected in their respective answers "P2" and “P3” thedefence of the 1st and 2nd defendants was based upon a claim ofprescription which, it is submitted, by its very nature depends uponoral testimony which, in turn makes the Impression created bywitnesses an important factor in determining questions of fact. It isrespectfully submitted that the said principle which has hitherto beenapplied by the Appellate Courts of this county will be completelynegated in the event of the learned successor judge who has not seeneven a single witness testifying were to write the judgment in terms ofthe order W
it is submitted with respect that the learned Additional District judgeerred and/or misdirected himself when he arrived at the finding that theauthorities cited on behalf of the 1st and 2nd defendants have noapplication as they had all been decided prior to the enactment of theJudicature (Amendment) Act No.27 of 1999 which amended Section48 of the Judicature Act No. 02 of 1978 It is submitted that the saidauthorities which laid down as being imperative the requirement thatthe judge who saw and heard the witnesses should write the judgmentwhile the impression created by the witnesses and the finer points ofthe evidence was still fresh in his mind are judicial interpretations ofSections 184 and 185 of the Civil Procedure Code and continue to bethe law and are applicable in respect of the present case."
The aforesaid averments would show that the 2nd defendant -petitioner is in fact challenging the validity of the impugned order.
It is to be seen that the 1st defendant – respondent has set up aclaim on the basis of a prescriptive title and whereas the 2nd defendantpetitioner claimed on a title deed coming from the 1st defendant. In
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the circumstances the case of the 2nd defendant- petitioner had tostand or fall on the sucess or otherwise of the 1 st defendant’s defence.The claim of prescription depends to a very great extent upon oraltestimony which in turn make the impression created by the witnessesan important factor in determining questions of fact. Basnayake, C. J.in his decision in Mohota vs. Saranatv upheld the view that where thedecision in a case depends on oral testimony the impression createdby witnesses on the judge are important; again in the case of
/9I
Saravanamuttu vs. Saravanamuttu .
In a case which turns on the impressions created by the oral evidenceof witnesses it is important that the trial judge should write his judgmentwithout undue delay.
Also in the case Kulathunga vs. Samarasinghe(3)
A judgment delivered two years and four months after the tender ofwritten submissions cannot stand. The case depended on the oraltestimonies of witnesses. The impression created by the witnesseson the judge is bound to have faded away after such a long delay; thelearned Judge was bound to have lost the advantage of the impressionscreated by the witnesses whom he saw and heard and his recollectionsof the fine points in the case would have faded from his memory by thetime he comes to write the judgment.
In Edwin vs. de Silva Court held that:
“Even if the judge refreshed his memory of the facts by reading thetypescript of the evidence after such a long interval of time he is boundto have lost the advantage of seeing and hearing the witness givingevidence and the impresion created by them could no longer be vivid inhis mind. A judgment of a judge of first instance based on a merereading of the typescript is not of the same value to this Court as a
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judgment delivered while the recollection of the trial and of the demeanourand attitude of the witnesses and the impression created by them onhim are fresh in his mind. In our view the judgment must be set asideand the case should go back for a retrial”
It is contended by counsel for the plaintiff – respondent that thelearned District judge has taken into consideration the aforesaid casescited and has correctly held that the said cases have been decidedprior to the amendment of the Judicature Act and therefore has norelevance to the instant.action. I am unable to agree with thissubmission for two reasons. The first reason being that the aforesaidcases dealt with not Section 48 of the Judicature Act but with Sections184 and 185 of the Civil Procedure Code and the other being that theprinciple laid down in those cases hold good law even now and Courtshave continued to act and follow the aforesaid decisions. However thesituation would be quite the opposite if the evidence to be consideredby Court consists mainly of documentary evidence in which case theprinciple laid down in the aforesaid cases will have no relevance for the' succeeding judge only need to examine the documentary evidenceplaced before Court. In the instant action, the case for the defendantsmainly depend on evidence and not on documents and the learnedDistrict judge should have given consideration to this aspect of thematter when he was appraised of these facts. I would say the learnedDistrict Judge erred in law in not considering this important factorwhen exercising the discretion given to him in terms of Section 48 ofthe Judicature Act as amended.
While I agree with the view expressed in the case of Sharp vs.Wakefield51 at 179 that discretion given to a judge must be exercisedaccording to the rules of reason and justice, not according to privateopinion ; according to law and not humour. Its exercise mustbe uninfluenced by irrelevant consideration, must not be arbitrarily,vague and fanciful but legal and regular. And it must be exercised
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within the limit to which an honest man competent to discharge hisoffice ought to confine himself.
In the instant action it is very clear that the learned District Judgehas exercised its discretion not according to the rules of reason andjustice but taking into account irrelevant matters such as the greatprejudice that would be caused specially to the plaintiffs – respondentsby the delay involved in the evidence of a trial de novo and the lengthof time the trial in the instant action had taken viz : nearly 10 yearsfrom the date of institution of the action. Further, the learned Districtjudge has come to a conclusion that the aforesaid decisions cited bythe 2nd defendant – petitioner has no application to the instantapplication for a trial de novo. These are the matters that has persuadedthe learned District Judge to exercise his discretion in refusing theapplication of the 2nd defendant-petitioner for a trial de novo.
Counsel for the plaintiffs – respondents has cited two other cases insupport of his contention that this Court should not interfere with theexercise of the discretion vested in the original Court.
(6i
The first case being Wijewardenavs. Lenora at463perBasnayake, J.
“The mode of approach of an Appellate Court to an appeal againstan exercise of discretion is regulated by well established principles.It is not enough that the judges composing the appellate Court considerthat, if they had been in the position of the trial Judge, they would havetaken a different course. It must appear that some error has beenmade in exercising the discretion. It must appear that the judge hasacted illegally,arbitrarily or upon a wrong principle of law or allow.extraneous or irrelevant consideration to guide or affect him, or that hehas mistaken the facts, or not taken into account some material
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consideration. Then only can his determination be reviewed by theappellate Court.”
The case is Osenton and Co. Vs. Johr>ston<7> at 250 wherein theCourt observed :
“The law as to the reversal by a Court of Appeal of an order made bythe judge below in the exercise of his discretion,is well established,and any difficulty which rises is due only to the application of wellsettled principles is an individual case. The appellate tribunal is not atliberty merely to substitute its own exercise of discretion for thediscretion already exercised by the judge. In other words, appellateauthorities ought not to reverse the order merely because they wouldthemselves have exercised the original discretion, had it attached tothem, in a different way. If however, the appellate tribunal reaches theclear conclusion that there has been a wrongful exercise of discretion,in that no weight, or no sufficient weight, has been given to relevantconsiderations such as those urged before us by the appellant thenthe reversal of the order on appeal may be justified”.
I have no bone to pick with the aforesaid observations for they aresound principles of law. However it appears that the learned DistrictJudge in exercising his discretion vested in him in terms of Section 48of the Judicature Act as amended has acted arbitrary upon wrongprinciples of law and has allowed extraneous and irrelevant matters toguide him.
Another matter raised by counsel for the plaintiffs – respondent isthe 2nd defendant – petitioner’s conduct in the District Court. Hesubmits that the 2nd defendant – petitioner who did not object to thelearned District Judge of Colombo before whom no evidence in thesaid action has been led from delivering the judgment is not entitled toobject to the Additional District Judge of Court No.2 delivering judgment
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On the same day when the case was taken up in Court No. 02before the Additional District Judge to fix a date of judgment the 2nddefendant – petitioner has made the applications for a trial de novo atthe appropriate time.
For the foregoing reasons, I would answer the question of lawformulated in the negative and set aside the order of the learned Districtjudge and make order for a trial de novo with directions to the learnedDistrict Judge to hear and conclude the action as expeditiously aspossible. In all the circumstances of the case, I make no order as tocosts.
WIMALACHANDRA, J. — / agree
Trial de novo ordered.
Appeal allowed.
Thereafter journal entry No.96 dated 12.03.2004 reads as follows :
on the same basis. The statement appears to be incorrect for journalNo.95 dated 05.03.2004 which reads as follows: