131-NLR-NLR-V-50-GIRANTHA-et-al.-Appellants-and-MARIA-et-al.-Respondents.pdf
Girantha v. Maria
519
1948Present: Basnayake and Gratiaen JJ.GIRANTHA et al., Appellants, and MARIA el al.,Respondents
S.G. 15—D. C. Kurunegala, 2,927
Civil Procedure Code—Interlocutory appeals—When rejected—List of witnessesfiled after original trial date—Discretion of Judge—How it should beexercised—Section 175.
An interlocutory appeal should be rejected as premature only incases where the matter could more expediently be dealt with in a finalappeal.
In exercising his discretion under section 175 of the Civil ProcedureCode where it is sought to call a witness whose name was not in the listfiled before the trial, the paramount consideration for the Judge is theascertainment of the truth and not the desire of a litigant to be placedat an advantage by reason of some technicality.
PPEAL from a judgment of the District Judge, Kurunegala.
E. A. P. Wijeyeralne, for the defendants appellants.
Seneviratne, for the plaintiffs respondents.
Cur. adv. wit.
{1929) 6 Times of Ceylon L. B. 122.
520
GB.A-TTA353ST J.—Qirantba v. M.aria
July 9, 1948. Gkatiaen J.—
The plaintiffs instituted this action against the defendants for declara-tion of title to a land called Bakmigaha Kumbure. The trial commencedon June 24, 1947, on various issues, one of which raised the questionof the prescriptive rights of the parties. While the 1st plaintiff wasgiving evidence she was cross-examined with regard to a petition (markedDl) which she had submitted in 1940 to the Magistrate’s Court of Dande-gamuwa complaining that the defendants were forcibly resisting herclaim to enter the land in dispute. It is common ground that this petitionhad been forwarded to Police Inspector Sivasambo for investigation,and that at the official inquiry held by that officer the 1st plaintiff hadmade a statement to him in connection with the dispute. The proctorfor the defendants, who had been briefed "with a certified copy of theInspector’s report to Court following the inquiry, suggested to the 1stplaintiff that she had on that occasion told the Inspector “ that she hadnot been in possession of this land for the last ten years The 1stplaintiff denied having made any such statement to Inspector Sivasambo.There can be no doubt that such an admission, if made in 1940, at anofficial investigation held by a public officer, would have a very importantbearing on the issue of prescription raised at the present trial. In view ofthe plaintiff’s denial, however, the certified copy of this report could not beconsidered at the trial unless Inspector Sivasambo was called as a witness.
The case for the plaintiffs was concluded on June 24, 1947, and the trialwas put off for further hearing on September 11, 1947. It was notactually heard till November 14, 1947, as the presiding Judge was ill inSeptember. In the meantime, on July 4, the proctor for the defendantshad filed an additional list of witnesses, with notice to and withoutobjection from the plaintiffs’ proctor, citing Inspector Sivasambo togive evidence and to produce his official report dated May 26, 1940, inwhich he is stated to have referred to the 1st plaintiff’s alleged admissionthat she had not had possession of the land in dispute for 10 years.Inspector Sivasambo was duly summoned, and the defendants’ proctormoved to call him as his first witness on the next trial date, November 14,1947. The plaintiffs’ proctor objected on the ground that the Inspector’sname did not appear on the defendants’ list of witnesses before theoriginal trial date, June 24, 1947, as required by section 175 of the CivilProcedure Code, and the learned Judge made order refusing to allowSivasambo to be called. The learned Judge in his order rightly heldthat Sivasambo’s evidence and his official report which the defendantssought to produce had “ a direct bearing on the vital issue regardingprescriptive possession ” but stated that to permit the Inspector to becalled at that stage would be " putting the plaintiffs at a disadvantage ”.It is against this order that the defendants have appealed. On thepetition of appeal being filed, the learned District Judge, in the exerciseof his discretion, stayed further proceedings in the trial pending thedecision of this Court on the interlocutory appeal. In view of the orderwhich we propose to make, a continuation of the trial might well haveproved abortive. I do not, of course, express the view that a trial Judgeshould always stay proceedings when an interlocutory appeal is filedagainst his refusal to allow witnesses to be called at the trial.
GRATIAEN J.—Oirantha v. Maria
521
A preliminary objection was raised on behalf of the plaintiffs that theappeal was wrongly constituted and should not be entertained on theground that an interlocutory appeal does not lie against an incidentalorder of this nature. Counsel argued that the defendants should haveproceeded with the trial notwithstanding the order appealed from,and raised the question thereafter, if necessary, in the form of a finalappeal to this Court. Counsel referred us to certain observations ofKeuneraan J. and Poyser J. in Balasubramaniam v. Valliappa Chetty1in support of his contention.
Under section 73 of the Courts Ordinance an appeal lies against any“ judgment, decree, or order ” pronounced by a District Court, and anorder made by the trial Judge refusing, under seetion 175 of the CivilProcedure Code, to allow a witness to be examined on behalf of a partyto the proceedings is, in my opinion, an appealable order to the sameextent as an order refusing to frame an issue suggested by one partyand objected to by the other was held to be appealable in Pieris v.Perera2 and Podi Appuhamy v. Mudiyanse3. The order appealed fromis clearly a “ formal expression of a decision ” of the learned Judge andtherefore an “ order ” as defined in section 5 of the Civil Procedure Code.
The correct view appears to be that although this Court undoubtedlyhas jurisdiction to entertain interlocutory appeals of this nature, theattitude of the Corut in disposing of such appeals must necessarilydepend on the circumstances of each case. The main consideration is tosecure finality in the proceedings without undue delay or unnecessaryexpense. On the one hand, therefore, this Court would always “ discourageappeals against incidental decisions when an appeal may effectively hetaken against the order disposing of the matter under consideration at afinal appeal ” (per Bertram C.J. in Fernando v. Fernando*). I do notthink that either Keuneman J. or Poyser J. in Balasubramaniam v.Valliappa Chetty (supra) intended to lay down any principle of widerapplication than this.
Cases may well arise, however, where the point involved in an incidentalorder goes to the root of the matter, and it is both convenient and in theinterests of both parties that the correctness of that order should betested at the ear best possible stage in an interlocutory appeal. Indeed,as Sampayo J. pointed out in Arumugam v. Thamhiah B, an early decisionof the appellate tribunal on the point in dispute might well obviatethe necessity of a second trial:In such cases this Court would not
refuse to entertain an interlocutory appeal against an incidental butfar-reaching order of the trial Judge. Where, however, the mattercould more expediently be dealt with in a final appeal, an interlocutoryappeal would be rejected as premature. It seems to me that the chiefsafeguard against any attempt on the part of a litigant to abuse his rightto file an interlocutory appeal against an incidental order is that aninterlocutory appeal does not ipso facto stay proceedings in the Courtbelow unless an application for that purpose is allowed by the trial Judge(Arunasalam v. Somasunderam. 6). Trial Judges in dealing with suchapplications would no doubt be guided by the principles of expediencywhich have been laid downin the decisions to which I have referred.
1 (1938) 39.N. L. R. 553.* (1920) 8 C. W. R. 43.
* (1906) 10 N. L. R. 41.s (1912) 15 N. L. R. 253.
» (1907) 2 A.. C. R. 159.* (1918) 20 N. L. R. 321.
622
GR.ATTAEUST J.—Qirantha v. Maria
In the present case the learned Judge decided to stay the proceedingsin order that the correctness of the order appealed from might be testedin appeal. It would therefore be manifestly futile for this Court ongrounds of expediency to refuse now to entertain the appeal as premature.The preliminary objection raised on behalf of the respondent musttherefore be overruled.
It remains to be considered whether the learned Judge was justified inrefusing to allow Inspector Sivasambo to be called as a witness for thedefence. The proviso to section 175 of the Civil Procedure Codeauthorises the Court to permit a witness to be called although his namedoes not appear on the list of witnesses filed before the commencementof the trial if such a course is “ advisable in the interests of justice Thepurpose of the requirement of section 175 that each party should knowbefore the trial the names of the witnesses whom the other side intendsto call is to prevent surprise. Subject to the element of surprise beingavoided, it is clearly in the interests of justice that the Court, in adjudicatingon the rights of parties, should hear the testimony of every witness whocan give material evidence on the matters in dispute. In this caseInspector Sivasambo is admittedly a person whose evidence, if acceptedby the trial Judge, would be of the greatest importance in deciding theissue of prescription. The nature of the testimony which the defendantsanticipate he would give was expressly put to the 1st plaintiff when shegave evidence. The element of surprise does not arise because theplaintiffs had several months’ notice of the defendants’ decision to callhim on the adjourned date of hearing. In these circumstances it seemsto me that the objection raised by the plaintiffs to Inspector Sivasambobeing called as a witness was highly technical and without merit. Itwas “ in the interests of justice ” that this material witness should havebeen examined. The learned Judge refused the application becausethe plaintiffs “ would be placed at a disadvantage ” if Inspector Siva-sambo’s evidence were allowed to be called. This is no doubt correct ina sense, but the paramount consideration is the ascertainment of thetruth and not the readily understandable desire of a litigant to be placedat a tactical “ advantage ” by reason of some technicality. In myopinion the learned Judge has not properly exercised the discretionvested in him by section 175, and this Court is entitled to reverse hisdecision.
I would set aside the order appealed from, and make order that in theinterests of justice the defendants should be permitted to call InspectorSivasambo as a witness. Before the defendants’ case is opened, theplaintiffs may, if they so desire, call any further witnesses with reasonablenotice to the other side and may also recall any witness who has alreadybeen examined. The defendants are entitled to the costs of this appealand the costs of November 14, 1947, in the Court below. It is desirablethat the same trial Judge should continue to hear the case from thestage at which it was interrupted.
Basnayake J.—I agree to the order proposed by my brother.
Order set aside.