GAMINI LAKSHMAN PEIRIS v. NIHAL SRI AMERASEKERA

016-SLLR-SLLR-1999-V-1-GAMINI-LAKSHMAN-PEIRIS-v.-NIHAL-SRI-AMERASEKERA.pdf


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GAMINI LAKSHMAN PEIRIS
v.NIHAL SRI AMERASEKERA
COURT OF APPEALDE SILVA, J.,
WEERASURIYA, J.
A. REV. APPLN. NO. 775/98
C. COLOMBO CASE NO. 19849/MRNOVEMBER 04 & 20, 1998.
Civil Procedure Code – Notice to disclose documents under S. 102 CPC -Objection to discovery under S. 108 CPC – Striking out the answer underS. 109.
The procedure relating to discovery of documents is different from procedure tosecure interrogatories, admit genuineness of document and inspection ofdocuments.
The procedure provided for, an application for interrogatories under section 94.for notice to admit genuineness of documents under section 101 and for inspectionof documents under section 104 is to move court by way of a motion ex pane.However, in terms of section 102 (1) there is no provision for a party to haverecourse to discovery of documents by resorting to an application by way of amotion ex parte.
Therefore, a party is entitled to make his objection to an order for discovery andthe court has a duty to inquire into such objection and make an order. The grantingof an order for discovery is entirely within the discretion of court.
Section 109 CPC undoubtedly contains stringent provisions and is punitive incharacter. It provides for the defence of a defendant to be struck out and placeshim in the same position as if he had not appeared and answered. Further, sucha party is deemed to be guilty of contempt of court.
Where it was difficult to foresee what matters were contemplated by the plaintiff-respondent by way of discovery, in the absence of any ascertainment ofthe specific matter or matters that were in question (under S. 108 CPC) thedefendant would have to speculate on what matters discovery was sought. Thedefendant objected on the ground that the order of court had been made perincuriam and also pleaded privilege. Hence the essential requirement of contumacybefore an order under section 109 could be made was lacking.
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Further the order of court lacked the following basic features it ought to havecontained:
Declaration to be by affidavit.
Declaration of the documents relating to matters in question in theaction.
Cases referred to:
Nandawathie de Silva v. Yasawathiada Silva -58NLR 97.
Waerasuriya v. Croos 22 NLR 87.
R. H. M. Foods Ltd. v. Bovril Ltd. (1982) 1 WLR 661, (1982) 1 All ER673.
Appu Singho v. Jusey Appuhamy 5 Appeal Court Rep. 135.
Amin Jrai v. Hadji Omar & Co., Ltd.- 71NLR115.
Namasivayam Chatty v. Ragsoobhoy- 46NLR12.
APPLICATION in Revision in respect of the order of the District Court of Colombo.
H. L. de Silva PC with Faiz Musthapa PC, Romesh de Silva PC and HarshaAmersekera for defendant-petitioner.
K. Kanag-lswaran PC with Harsha Cabral, M. A. Sumanthiran and NigelBartholomeusz for plaintiff-respondent.
Cur. adv. vult.
January 11, 1999.
WEERASURIYA, J.
The plaintiff-respondent by his plaint dated 21. 07. 97, instituted actionagainst the defendant-petitioner, seeking a judgment in a sum ofRs. 300,000,000 as damages, allegedly for defamation based on astatement made by the defendant-petitioner over suspension of asettlement agreement pertaining to Hilton Project. The defendant-petitioner filed answer denying liability and prayed for dismissal of theaction and the case was fixed for trial on 16. 03. 98. In the meantime,pursuant to an application ex parte by way of a motion by the plaintiff-respondent, court made order to issue notice purportedly in terms of
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section 102 of the Civil Procedure Code, requiring the defendant-petitioner to disclose by affidavit all the documents in files maintainedat the Ministry of Finance, which are or have been in possession orpower of the defendant-petitioner relating to all matters in questionin the action. On 17. 03. 98, defendant-petitioner filed a statementof objections together with an affidavit that the order had been madeper incuriam, and documents referred to are not in his possessionin his personal capacity and that they are privileged. On 07. 05. 98,the plaintiff-respondent made an application in terms of section109 (1) of the Civil Procedure Code, to strike out the defence of thedefendant-petitioner on the basis that he had failed to comply withthe order made under section 102 of the Civil Procedure Code andDistrict judge by his order dated 30.07.98, struck out the answer ofthe defendant-petitioner and fixed the case for ex parte trial. It isfrom the aforesaid order of the District Judge that this application forrevision has been filed.
At the hearing of this application, the case of the defendant-petitioner was presented basically on the following two matters:
that the District Judge had misdirected himself on the scopeand content of section 102 of the Civil Procedure Code; and
that the District Judge had misdirected himself on the purposeand scope of section 109 of the Civil Procedure Code.
The contention of learned President's Counsel for the defendant-petitioner that the District Judge had misdirected himself on the scopeand content of section 102 of the Civil Procedure Code was basedon the following grounds:
that the District Judge failed to consider that the motion ofthe plaintiff-respondent was vague and nebulous; and
that the District Judge made the order of discovery as a matterof course on a motion ex parte. .
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Learned President's Counsel for the plaintiff-respondent submittedthat the answer of the defendant-petitioner was properly struck out,as he had failed to comply with the order under section 102 of theCivil Procedure Code served on him and that the court has nodiscretion in the matter.
Section 102 (1) of the Civil Procedure Code which provides fordiscovery of documents is in the following terms :
"102 (1) – The court may, at any time during the pendencytherein of any action, order any party to the action to declare byaffidavit all the documents which are or have been in his possessionor power relating to any matter in question in the action, and anyparty to the action may, at any time before the hearing, apply tothe court for a like order."
The contention of learned President's Counsel for the plaintiff-respondent is that the discretion to move for an order for discoveryunder the second limb of section 102 (1) is the discretion vested inthe plaintiff-respondent and that court has no discretion in the matter.
In the case of Nandawathie de Silva v. Yasawathie de Silva!''it was held that an order for discovery of documents need not bemade as a matter of course but is discretionary and may be resistedby a claim of privilege although no express provision in this behalfis to be found in section 102 of the Civil Procedure Code.
It was held in Weerasuriya v. CroosP> that the court has a discretionto refuse discovery of documents where it can see that no good isreasonably to be expected from ordering it.
The contention of learned President's Counsel for the plaintiff-respondent that court has no discretion in the matter of discovery ofdocuments was based mainly if not solely on the English practice,
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where discovery of documents between parties to an action withpleadings is automatic without court order upon the close ofpleadings except in running down actions in terms of Rule 1 of Order24 of the Rules of Supreme Court. (The Supreme Court Practice(1995) vol. (1) page 431).
It is significant to note that English practice is for the parties toexchange lists of documents between them after the pleadings areclosed. (Order 24 Rule 2 – The Supreme Court Practice (1995)vol. (1) page 434).
However, Rule 4 (1) of Order 24 (The Supreme Court Practice(1995) vol. (1) page 441) provides that where on an application foran order under rule 2 or 3 it appears to the court that any issueor question in the cause or matter should be determined beforeany discovery of documents is made by the parties, the courtmay order that, that issue or question be determined first.
Further, the English practice of deciding the stage at whichdiscovery may be ordered is reflected in the case of R. H. M. FoodsLtd. v. Bovril Ltd3) where it was held that court has a wide discretionwhen to order discovery in the interest of justice. But, it is generallyinexpedient and unnecessary to do so until the issues have beendefined by the pleadings. (The Supreme Court Practice (1995)vol. (1) page 440).
It is to be observed that rules in English practice in respect ofdiscovery of documents vary in accordance with the manner in whichaction is instituted. Thus, in an action begun by writ, the requirementthat the parties make discovery is obligatory by virtue of the Rulesof the Supreme Court without the necessity for a prior order of thecourt and may thus be regarded as a matter of right on the part ofthe opposite party and moreover such requirement is mutual, that isthe parties must make discovery to each other simultaneously byexchanging lists of documents. The requirement for the mutualdiscovery of documents without order does not apply to actions which
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are begun by originating summons nor to third party proceedings andsome others (Halsbury's Laws of England vol. 13, – 4th edition,pages 9 and 10). Whether discovery is to be made without an orderof the court in an action begun by writ or by order of court, indetermining whether a document should be disclosed by a party, twotests should be applied (1) whether it is relevant and (2) whether itis or was in the possession, custody or power of the party of hisagent (idem page 33).
At page 34, it states as follows:
. . . Relevance must be tested by the pleadings and particularsand when particulars have been served which limit a particular issuethen discovery on that issue is limited to the matter raised in theparticulars. Discovery will not be ordered in respect of an irrelevantallegation in the pleadings, which even if substantiated, could notaffect the result of the action nor in respect of an allegation notmade in the pleadings or particulars nor will discovery be allowedto enable a party to "fish" for witnesses or for a new case thatis to enable him to frame a new case …"
It will be seen therefore, that according to the practice obtainingin England discovery is no longer granted as of right-but as a matterof discretion based on the facts of the particular case underconsideration.
Section 108 of our Civil Procedure Code which makes provisionto reserve questions as to discovery is as follows:
"108 – If the party from whom discovery of any kind orinspection is sought objects to the same or any part thereof, andif the court is satisfied that the right of such discovery or inspectiondepends on the determination of any issue or question in disputein the action, or that for any other reason it is desirable that anysuch issue or question should be determined before deciding uponthe right to the discovery or inspection, the court may order that
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the issue or question be determined first, and reserve the question
as to the discovery or inspection.“
Learned President's Counsel for the plaintiff-respondent sought toargue that only upon compliance by a party of an order under section102 (1) to declare by affidavit, could such party take up objectionto discovery under section 108. This contention of learned President'sCounsel for the plaintiff-respondent is untenable for the reason thatthe section itself makes no restriction in respect of the stage at whichobjection could be raised. To read into this section such a restrictionwhen all other circumstances point to a contrary view would doviolence to the language of the section and to the orderly conductof the pre-trial proceedings.
Chapter XVI of the Civil Procedure Code relates to pre-trialproceedings encompassing provisions for interrogatories, discovery ofdocuments, notice to admit genuineness of documents and inspectionof documents. However, the procedure relating to discovery is differentfrom procedure to secure interrogatories, admit genuineness ofdocuments and inspection of documents.
The procedure provided for an application for interrogatories undersection 94, for notice to admit genuineness of documents under section101, and for inspection of documents under section 104 is to movecourt by way of a motion ex parte. However, in terms of section102 (1) there is no provision for a party to have recourse to discoveryof documents by resorting to an application by way of a motionex parte.
Therefore, it is manifestly clear that a party is entitled to makehis objection to an order for discovery, and the court has a duty toinquire into such objection and make an order. The granting of anorder for discovery is entirely within the discretion of court.
Learned President's Counsel for defendant-petitioner submittedthat District Judge had misdirected himself on the purpose and scopeof section 109 of the Civil Procedure Code.
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Section 109 of the Civil Procedure Code undoubtedly containstringent provisions and it is punitive in character. It provides for thedefence of a defendant to be struck out and to place himself in thesame position as if he had not appeared and answered and also suchparty is deemed to be guilty of the offence of contempt of court.
It was held in Appu Singho v. Jusey Appuhamj/4) that powerconferred by section 109 should be exercised only in cases wherethere has been obstinacy or contumacy in the conduct of the partyin default. In Amin Jrai v. Hadji Omar & Co., Ltd.{5) it was held thatpenalty under section 109 of the Civil Procedure Code, can only beimposed on a party who is guilty of wilful or contumacious refusal.
In Namasivayam Chetty v. Ragsoobho^ it was laid down that orderunder section 109 of the Civil Procedure Code is discretionary.
Therefore, it would be apparent that this provision could beresorted to where non-compliance is not a case of failure to complywith an order for discovery per se but has aggravating features whichmakes it a contumacious or obstinate refusal to obey such order.
In the instant case, the defendant-petitioner adduced reasons forhis inability to comply with the order for discovery made by court,the plaintiff-respondent's case was founded allegedly on a defamatorynature of a statement of the defendant-petitioner. Therefore, the relevantissues must relate to matters in so far as publication of the statementcomplained of, defamatory nature of the statement, that it refers tothe plaintiff or was understood to refer to the plaintiff, the animusinjuriandi, damages and defences pleaded. The paragraphs andsub-paragraphs in the plaint aggregate over one hundred and cover10 pages. Further, plaintiff-respondent claimed in his plaint thatdiscussions and negotiations pertaining to the Hilton Hotel settlementwere essentially handled by him and were achieved by his sole andsustained efforts over a period of six years. In the circumstances, itwas an arduous task for one to foresee what were the matters, thatwere contemplated by the plaintiff-respondent by way of discovery.
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It is justifiable for one to assume that in the absence of anyascertainment of any specific matter or matters in question, it wasleft to the defendant-petitioner to speculate on what matters discoveryis sought.
This situation seemed to have confused the District Judge too, inmaking an order purportedly in terms of section 102 (1) wherein hehad directed notice on the registered Attorney-at-law for the defendant-petitioner to produce documents relevant to the case of the plaintiff-respondent and documents which the defendant-petitioner rely on forhis defence. However, the order issued by court under the hand ofthe Registrar, directed the defendant-petitioner to declare by affidavitwithin 7 days' of service of the notice, all the documents in filesmaintained by and kept at the Ministry of Finance under thesupervision, control or authority as the Deputy Minister of Financewhich are in his possession or power relating to all matters in questionin the action.
It must be noted that the order made by the District Judgepurportedly under section 102 (1) of the Civil Procedure Code lackedthe following basic features it ought to contain namely –
to declare by affidavit; and
to declare documents relating to matters in question in theaction.
Learned counsel for the plaintiff-respondent sought to explain thisvariance between the order made by the District Judge and the noticeissued on the defendant-petitioner as having caused by a mere error,either in use, stenography or transcription which was however not anexplanation relating to the inadequacy of the order of discovery lackingin essential prerequisites referred to above.
The District Judge having realised the obvious inadequacy of theorder for discovery had also attempted to explain that he made orderon 09. 03. 98 to declare the documents. However, in this explanation
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too, there does not seem to have any material for his lapse, to directthe defendant-petitioner to declare by affidavit all documents relatingto matters in question in the action.
Learned President's Counsel for the defendant-petitioner contendedthat a condition precedent to the making of an order under section109 is the existence of a valid order of discovery under section 102(1). Learned President's Counsel for the plaintiff-respondent, however,contended that this instance was not a case of invocation of wrongprovision of law nor a case of assumption of jurisdiction under a wrongprovision of law, nor the exercise of a non-existent power, all of whichmay affect jurisdiction. The District Judge purportedly acted- undersection 102, with no specific reference to that in the order proper,though there is prior mention of it, as being the application of counsel.But if the order which entail far-reaching consequences for non-compliance lacked the essential and necessary prerequisites it couldbe challenged as having been made without proper inquiry.
The other question which would arise in this context would bewhether or not a party could be held as having failed to complywith such order with contumacy or wilful obstinacy, on whom noticeis served, objects on the ground that the order had been madeper incuriam. Having regard to all the circumstances, it would appearthat such an inference is not justifiable.
For the foregoing reasons, it seems to me that the District Judgewas manifestly in error when he made order to strike out the answerof the defendant-petitioner and to have the trial ex parte. This orderhas occasioned a miscarriage of justice which demands interventionby this court. In the circumstances, I set aside the order of the DistrictJudge dated 30. 07. 98. This application is allowed with costs.
DE SILVA, J. – I agree.
Application allowed.