FAROSE AHMED vs. MOHAMED AND ANOTHER

010-SLLR-SLLR-2006-V-2-FAROSE-AHMED-vs.-MOHAMED-AND-ANOTHER.pdf


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FAROSE AHMEDVS
MOHAMED AND ANOTHER
COURT OF APPEALIMAM, J.,
SRISKANDARAJAH.J.,
CA 223/2002.
DC MT LAVINIA 820/97/L.
FEBRUARY 14, 2005.
JANUARY 11,2005, JUNE 5, 2006.
Civil Procedure Code, section 51, section 54, section 121(2), section 125(2)-Document not listed – Can it be produced? – Discretion of Court-Publicdocuments-Purpose of section 121(2) – Objective?
HELD:
(1) The trial was fixed for 19.09.2001, the additional list of documents was filedon 14.02.2002 long before the next trial date viz. 30.05.2002. The petitioner'sapplication was to mark a public document and there was no element ofsurprise caused as the document had already been gazetted.
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Farose Ahmed VS. Mohamed and Another (Imam, J.)
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Per Imam J.
The objective of section 121 (2) is to give notice of the witnesses and documentsintended to be called or produced fifteen days defore the date of trial”.
APPLICATION for leave to appeal from an order of the District Court of Mt.Lavinia.
Cases referred to:
Eheliyagoda Gama Alhiralage Karunawathie Menike vs. Bank of Ceylon- CALA 164/99 – DC Balangoda – CAM 11.02.2000..
Girantha vs. Maria – 50 NLR 519
.Casie Chetty vs. Senanayake – 1999 2 Sri LR 11
C. E. de Silva for plaintiff-petitioner.
Malaka Herath for defendant-respondent.
Cur.adv.vult.
May 5,2006.
IMAM, J.The Plaintiff – Petitioner (hereinafter referred to as the Petitioner) filedthis application for leave to appeal against the order of the learned AdditionalDistrict Judge of Mount Lavinia dated 30.05.2002 (X9), and inter alia makeorder permitting the “Petitioner” to mark at the trial of this case theNotification published in the Government Gazette bearing No. 839 dated
(X10), amongst other reliefs sought for.
The facts of this case are briefly as follows : The Plaintiff-“Petitioner”instituted this action in the District Court of Mount Lavinia against theDefendant Respondent (hereinafter referred to as the “Respondent) seekinga Declaration to title to the allotment of land depicted as Lot 4043 A inPlan No. 474 dated 10.02.1999 made by H. Devasurendra LicensedSurveyor, described in the 2nd schedule to the amended plaint dated
the ejectment of the “Respondent" from the said land, andrecovery of damages at Rs.2000 per month from 12.02.1999 until thePetitioner is restored to vacant possession of the aforesaid premises.
The case of the Petitioner as pleaded in the amended plaint (X1) isPara (a) That by Notices published in the Government Gazette dated12.11.1993 and bearing No. 793 (e^l) and by Government Gazette No.839 dated 30.09.1994 (X10), the allotment of land and premises depictedas Lot 4043 in Plan No. 1250 dated 24.06.1994 made by T. S. SiriwardenaLicensed Surveyor bearing Assessment No. 22/3, Mallika Lane,Wellawatta, Colombo 06 vested in the Commissioner of National Housingunder section 17(1) of the Ceiling on Housing Property Law No. 01 of
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1973. The said land and premises is described in the 1 st Schedule to theamended plaint (X1).
That the Commissioner of National Housing by deed of dispositionbearing No. 16573 dated 14.10.1995 sold and conveyed the sad land andpremises described in the 1 st schedule to the amended plaint (xi) toTuan Kitchi Sahideen who by Deed No. 223 dated 31.03.1996 attested bySarojini Sornabale NP gifted the said land and premises described in the1 st schedule to the amended plaint (X1) to his daughter the Petitioner inthis case. It is averred by the Petitioner that the respondent having nomanner of right, title or interest is in wrongful and unlawful occupation of aportion of the land and premises described in the 1st schedule to theamended plaint (X1), denying and disputing the title of the Petitioner.
The Respondent filed amended answer (X2) denying all the avermentscontained in paragraph 2 to 8 of the amended plaint (X1) and pleaded interalia;
That by the Notification published in the Government Gazettebearing No. 793 dated 12.11.1993 that only the house bearingassessment No.22/3 and the land covered by the said house vestedin the Commissioner of National Housing.
That the Commissioner was not entitled to convey to thepredecessor in title of the petitioner more land than what was vestedin the Commissioner by the said Gazette Notification.
That the Respondent is the owner of the remaining land which isnot covered by the house bearing assessment No.22/3 includingthe land situated on the eastern boundary of the respondents land.
The Respondent prayed for;
Dismissal of the action by the Petitioner;
A declaration that the Petitioner is only entitled to the house bearingassessment No.22/3 and the land covered by the said house.
A true copy of the list of Witnesses and Documents filed by the Petitioneris filed marked “X3” and pleaded as part and parcel of the Petition.
The trial commenced on 19.09.2001, and the parties recorded theiradmissions and issues (X4). It was contended by the Respondent that theDocument ‘X10’ was not listed in compliance with sections 51 and 54 ofthe Civil Procedure Code. The crux of the matter was whether the Petitionerhad listed the document “X10” in accordance with section 121 of the CivilProcedure Code or not. Section 121 (2) of the Civil Procedure Code statesthat “Every party to an action shall, not less than 15 days before the date
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fixed for the trial of an action, file or cause to be filed in Court after Noticeto the opposite party—
A list of witnesses to be called by such party at the trial.
A list of the documents relied upon by such party and to be producedat the trial.”
The Respondent averred that (X10) was not listed in conformity withsection 121 of the Civil Procedure Code, and thus should be rejectedwhich objection counsel for the Respondent took up. Qn counsel for bothsides making oral submissions, the learned Additional District judge ofMount Lavinia upheld the objections of the “Respondents” and made orderon 30.05.2002 (X9). rejecting the application to mark (X10).
Leave to Appeal was granted on 23.01.2003 with regard to the questionwhether the trial judge had exercised her discretion properly and the casefixed for argument.
The contention of the Petitioner was that although trial was fixed for
and ‘X10’ was not in the list of documents 15 days prior to
on payment of Rs.5000 as costs, further trial was fixed for
The Petitioner avers that he filed an additional list of witnessess. and documents including *X10’ in the aforesaid list (X6) on 06.02.2002 with
notice to the Respondent which was accepted on 14.02.2002. It is contendedby the Petitioner that he gave further evidence on 30.05.2002, that graveprejudice would be caused to. the Petitioner by not being permitted tomark the Gazette Publication No. 839 (X10) dated 30.09.1994 and that“X10” should therefore be permitted to be marked in evidence.
The Defendant – Respondent avers that there is no merit whatsoever inthe application of the Petitioner, as the discretion to allow a documentwhich is not listed in accordance with section 121 of the Civil ProcedureCode is vested solely with the learned trial judge and that the Petition bedismissed with costs. I
I have examined the appeal of the Petitioner and the objections of theRespondent. As per journal Entry (32(X7), Trial in this case was fixed for
on which date the Plaintiff (Petitioner) and Defendant(Respondent) were present, represented by counsel and issues were raisedby both sides, and further trial was fixed for 01.02.2002. The additional listof witnesses and documents dated 06.02.2002 was filed on 14.02.2002(X7) by the Plaintiff (Petitioner) which was long before the next trial datenamely 30.05.2002. The Plaintiff (Petitioner) sought to mark the Gazette
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Publication 839 dated 30.09.1994 which was included in the aforesaidadditional list of witnesses and documents. The Gazette Publication is apublic document, and it is my view that there was no element of surprisecaused to the Defendant (Respondent). The objective of section 121 (2) ofthe Civil Procedure Code is to give Notice of the witnesses and documentsintended to be produced fifteen days before the date of trial. So that aparty would not be taken unaware. On the trial day prior to the 30.05.2002,namely on 01.02.2002 only the Examination in Chief of the Plaintiff(Petitioner) was led to a point. Especially as ‘X10 ‘ is a Public Documentbearing No. 839 and was Gazetted on 30.09.1994. Hence irreparableprejudice would be caused to the Plaintiff (Petitioner if ‘X10’ is not permittedto be marked in evidence.
Section 175(1) of the Civil Procedure Code states that “No witness shallbe called on behalf of any party unless such witness shall have beenincluded in the List of witnesses previously filed in Court by such party asprovided by section 121.
Provided however that the Court may in its discretion, if specialcircumstances appear to it to render such a course advisable in the interestsof Justice, permit a witness to be examined, although such witness maynot have been included in any such list."
“A document which is required to be included in the list of Documentsfiled in Court by a party as provided by section 121 and which is not soincluded shall not, without the leave of the Court be received in evidence atthe Trial of the action.
Provided that nothing in this sub-section shall apply to documents pro-duced for Cross Examination of the witnesses of the opposite party orhanded over to a witness merely to refresh his memory.”.
In Eheliyagoda Gama Athiralage Karunawathie Menike t/s Bank ofCeylori') it was held that the object of filing a list of witnesses is to preventan element of surprise and thereby causing prejudice to the other party.
In Girantha vs Marid2) it was held that in exercising the discretion of thejudge, the paramount consideration for the judge is the ascertainment ofthe truth and not the desire of a litigant to be placed at an advantage byreason of some technicality.”
In Casie Chetty vs Senanayakd3) it was held by Jayasinghe J that “Inexercising discretion under section 175 of the Civil Procedure Code where
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it is sought to call a witness whose name was not in the list, the paramountconsideration for the judge is the ascertainment of the truth and not thedesire of a litigant to be placed at an advantage by some technicality.”
It is my view that justice would be meted out if the document “X10” ispermitted to be led in evidence as it is a public document, and there couldbe no element of surprise to the Defendant (Respondent), as “X10” hadalready been gazetted.
For the aforesaid reasons I permit the appeal of the “Petitioner” and setaside the order of the Learned Additional District Judge, Mount Laviniadated 30.05.2002 (X9). I further permit the “Petitioner” to mark the Document“X10” which is the Notification published in the Goverment Gazette bearingNo. 839 dated 30.09.1994.
SRISKANDARAJAH, J. -1 agree.Appeal allowed.