081-NLR-NLR-V-45-ESMALJEE-et-al.-Appellant-and-MUTTUPALANIAPPA-CHETTIAR-Respondent.pdf
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WUEYEWAKDEiTE J.—Esmaljee and Muttupalaniappa. Chettiar
1944Present: Moseley S.P.J. and Wijeyewardene J.
ESMALJEE et al., Appellants, and MUTTUPALANIAPPACHETTIAR, Respondent.
12—D. C. (Inty.) Colombo, 14,567.
Evidence on commission—Action on contract—Contract governed by restrictionsand regulations made in India re export of goods—Application to examineController of Exports in India.
Wherethe plaintiffs sued thedefendants ona contracttheperformance
of which 'was subject to restrictions and regulations that may be made inIndia governing the export of goods,— •
Held,that the defendant’sapplication to examineinIndia on
commission the Export Trade Controller, Madras, should be allowed.
A PPEAL from an order of the District Judge of Colombo.
H. V. Perera, K.C. (with him T. K. C-urtis and V. K. Kandasamy),for defendants, appellants.
N. Nadarajah, K.C. (with him H. W. Thambiah), for plaintiffs,respondents.
Cur. adv. vult.
May 31, 1944. Wijeyewardene J.—
This is an appeal from an order of the District Judge of Colomborefusing an application by the defendants for the issue of a commissionto examine certain witnesses resident in India.
WUEYEWABDENB J.—Esmaljee and Muttupalaniappa Chettiar
32y
.Theplaintiffsand defendants are twofirms carrying on business ii>
Colombo. These two firms entered into a written contract for the saidand delivery by the defendants to the plaintiffs of 500 bags of IndianKurakkan. Oneof the clauses of thecontractstipulated that the
defendants would not hold themselves “ responsible for any consequencesdue to local or foreign government regulations, restrictions and/orimpositions
Theplaintiffssued the defendants inthis casefor the recovery of
Rs. 6,500 as damages sustained by them by reason of the defendants’failure to supply in or about August, ±942, the goods contracted for.
Thedefendants filed answer pleadingthat thenon-delivery of the
goods was due to the action of the Government of India in prohibiting the■export of Indian Kurakkan during the relevant period.
The defendants moved before trial for a commission to examine inIndia the Export Trade Controller, Customs House, Madras, and oneA. J anikeram Chettiar of Tuticorin with whom the defendants werealleged to have indented for 1,000 bags of Indian RLurakkan in July, 1942.•The defendants supported their application with an affidavit from theManager of their firm which referred, inter alia, to the letter X 1 sent bythe defendants’ Proctor to Janikeram Chettiar on August 23,1943,
and the reply X 2 sent by him on August 31, 1943.
The District Judge refused the application, and the main reasons given(by him are—
“ That there has been dilatoriness on the part of the defendants inpreparing for the defence ” as shown by the attitude of thedefendants with regard to the service of the summons on themand their failure to make an application for the commissionuntil twelve days before the date of trial;
/2) That “ no tender of money was apparently made ” to JanikeramChettiar who was merely informed in X 1 that the defendantswere prepared to pay his expenses; and that the statement inJanikeram Chettiar’s letter X 2 that he was too ill to travel toColombo was not supported by a medical certificate;
That there was no material placed before him to show that theExport Trade Controller had refused to attend;
{4) That the evidence of the Export Trade Controller would not benecessary, as the defendants could prove the relevant facts bythe production of documents under sections 78 (6) and 81. of theEvidence Ordinance.
Before proceeding to examine the reasons given by the learned Judge,it is necessary to make a brief statement of the various steps taken inthe action. The plaint was filed on January 18, 1943. Summons wastaken out only on February 20 and served on the defendant firm onFebruary 26, at 10.30 a.m., requiring the defendants to appear and answeron that day at 10.45 a.m. The summons was accompanied with a copyof the plaint translated into Tamil which was not the language of thedefendants. The defendant firm wrote a letter to the District Judge on thesame day pleading that the time given to them was insufficient for them tomake an appearance in Court and that the copy of the plaint served on
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WUEYEWARDENE J.—Esmaljee and Muttupalaniappa Chettiar
them was not in their language. The Judge made a journal entry" File proper papers and move It is not clear whether this endorsementwas communicated to the defendants.
Without any further inquiry the District Judge fixed the case forex parte trial on April 9, 1943, on the application of the plaintiffs. Onthat day the defendants, appearing through their lawyers, submitted!to Court that the summons had not been served properly on them. TheJudge held an inquiry on May 25, set aside the order for ex parte trial,,and directed the plaintiffs to serve the defendants with a copy of the plaintin English. When this was done the defendants filed answer on June11, and the case was fixed for trial on September 23. On September 12,the defendants applied to Court for the commission and that mattercame up for inquiry on September 17; on that day, the learned Judgethought that it was “ the most practical suggestion to take up the inquiryinto the issue of the commission on September 23 ”, the date of trial andpostponed the inquiry accordingly. On September 23, the Judge, afterhearing argument, refused to issue a commission. The defendants'Counsel informed the Court at this stage that his clients intended ap-pealing against that order, but the Judge thought that the case shouldproceed up to “ the point of closing the plaintiff’s case ” and directedthe parties to suggest issues. After several issues had been suggestedand framed the District Judge postponed the case as the plaintiffs’counsel said he “ would rather have the ease postponed without his casebeing disclosed ”. The resultant effect of these various orders is that,as yet, the trial has not proceeded beyond the initial stage of the framing-of issues.
I think the District Judge should not have allowed himself to be-influenced by the failure of the defendants to file answer till June, 1942,when he was considering the argument that the defendants had beendilatory in preparing the defence. That failure was brought about bythe omission of the plaintiffs to comply with the requirements of theCivil Procedure Code and the objection raised by the defendants to theservice of the summons has been found by the District Judge himselfto be a sound one. The letters X 1 and X 2 show that the defendants^had taken action in August, 1943, for securing the attendance of JanikeramChettiar to give evidence in Court. The delay, therefore, for whichthe defendants are responsible covers a period of about two months—from June to August. The plaintiffs-respondents relied on Steuart v~Gladstone1 in support of the contention that the application shouldbe refused, as the defendants had been guilty of laches in making-it. There is very slight similarity between the relevant facts in thetwo cases. In Steuart v. Gladstone (supra) issue was joined on June 11,1877, and the case was set down for trial on November 13. OnNovember 13, the Judge ordered the trial to be postponed for a monthon the application of the plaintiff. On December 13, the plaintiff gave*notice of a motion for the appointment of a commission to take theevidence of himself and a witness, who were in India, and for the post-ponement of the trial until the return of the writ of commission. At thehearing of the motion on December 17 the defendants offered to agree*
1 (1877) 7 Chancery LUvision 394.
WUE YEW ARDEN E J.—Esmaljee and Muttupalaniajrpa Chettiar
331
to a postponement of the trial till February 15, 1878. The plaintiffsdid not accept that offer, though the Judge suggested more than oncethat it should be accepted. The Judge held that the plaintiff shouldhave preferred his motion shortly after June 11, and said—
" When a plaintiff comes to ask that the hearing of his cause may bepostponed he must show due diligence on his own part in making theapplication …. Feeh'ng as I* do that the defendants havedone everything reasonable and that what the plaintiff is asking for isunreasonable, I must refuse this application with costs.
I do not think that Steuart v. Gladstone {supra) is an authority forrefusing the defendant’s application in this case on the ground of delay.
With regard , to the second reason given by the District Judge thelearned Counsel for the respondents did not attempt to support the viewthat Janikeram Chettiar was unwilling to come to Ceylon because he wasnot satisfied with the mere offer of the defendants promising to pay hisexpenses and that he would have changed his mind if the money wasactually tendered to him. The production of a medical certificate would,no doubt, have helped the Court to form an opinion as to the natureof the illness of Janikeram Chettiar. The defendants, however, areasking for a commission to take his evidence on the ground of his un-willingness to come to Court and have produced his letter X 2 for thatpurpose. In a post-script to that letter Janikeram Chettiar has addedby way of an explanatory note that his illness and the business engage-ments of his Head Clerk prevented him from acceding to the defendants’request to attend Court and give evidence. If Janikeram Chettiar’sillness, is in fact, less serious than he makes it out to be, that would merelyshow that he is giving a false excuse for not agreeing to attend Courtbut will not negative his unwillingness to do so. It should be rememberedin this connection that the defendant cannot compel the attendance of-Janikeram Chettiar who is a resident of India.
The Manager says in his affidavit that " the attendance of the ExportTrade Controller or his representative cannot be procured Thatstatement stands uncontradicted. Moreover, it appears to me highlyprobable that an official of that position entrusted with the administra-tion of defence regulations would have refused to leave his station and■come to Ceylon.
The fourth reason given by the District Judge suggests a way of■avoiding the necessity for a commission. It wall be seen that the evidenceis required with reference to some defence regulations and some ordersmade under those regulations. At this stage of the case it is difficultto state whether any oral evidence wull not have to be led through thetwo witnesses to explain the connection between these orders and thecontract so as to present the case for the defence in an intelligible form tothe Court. Section 81 of the – Evidence Ordinance referred to by theDistrict Judge gives rise only to a presumption in favour of the documentsmentioned therein and it is open to the plaintiff to rebut such presump-tions. The position of the defendants will be an extremely difficult one,if • the defendants rely merely on the presumption and the plaintiffssucceed in placing some evidence tending to rebut the presumption.
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Weerappa Chettiar and Rambukpotha Kumarihamy
T may add that in Marsden v. Habibhoy1 this Court affirmed the orderof the District Judge allowing the issue of a commission to the Superin-tendent of Stamps of Bombay regarding certain entries made in BombayGovernment records.
The plaintiffs filed this action in Colombo in respect of a contractthe performance of which was made subject to regulations and restrictionsthat may be made in India governing the exportation of goods. I thinkthat the defendants’ application should be allowed in these circum-stances and in view of the nature of the evidence that is sought to beobtained on commission.
I would set aside the order of the District Judge and send the case backwith a direction to him to issue a commission at the defendants’ expenseto such Court or person as may appear fit to the District Judge. Thedefendants will bear the costs of the commission, whatever be the resultof the case.
The defendants will be entitled to the costs of appeal and of the relativeproceedings in the District Court.
Moseley S.P.J.—I agree.
Appeal allowed.