HATTON NATIONAL BANK LIMITEDv.
WARAWITAGE AND OTHERS
COURT OF APPEALWIJEYARATNE, J. ANDWEERASEKERA, J.
A. 404/83 (F)
C. COLOMBO CASE NO. 84576/M2 NOVEMBER, 1992.
Civil Procedure – Can officer of a corporate legal person be called as a witnessunder section 175 (2) of the Civil Procedure Code whe/e his name is not on thelist of witnesses ?
The proviso to section 172(2) of the Civil Procedure Code which lays downthat aparty to an action may be called as a witness without his name being included inthe list cannot be availed of when a party is a legal person (i.e., a limited liability. company) to call any of its officers without his name or at least his designationbeing included in the list of witnesses.
APPEAL from judgment of the District Court of Colombo.
K. N. Choksy PC. with Lakshman de Alwis for plaintiff-appellant.
Defendants-respondents absent and unrepresented.
2nd November, 1992.
The plaintiff-appellant, Hatton National Bank Limited filed thisaction on 2.12.83 to recover a sum of Rs. 36,563/75 and interest dueon a loan granted to the 1st defendant-respondent, in respect ofwhich the 2nd and 3rd defendants-respondents had signed asguarantors.
On 14.9.82 judgment was entered of consent against the 1stdefendant-respondent, who was granted time to pay the amount dueby monthly instalments of Rs. 2,000/- each.
When the case was taken up for trial on 1.3.83 issues were framedand thereafter learned counsel for the plaintiff-appellant moved to callBerty Alagakone, an officer of the Bank, as a witness for the plaintiff-appellant. Thereupon learned counsel for the 2nd and 3rddefendants-respondents objected to the calling of this witness as hisname was not in the list of witnesses filed by the plaintiff-appellant asrequired by section 121(2)(a) of the Civil Procedure Code.
At this stage learned counsel for the plaintiff-appellant had takenup the position that as the plaintiff-appellant was a limited liabilitycompany it is not necessary to list this witness as he had come togive evidence on behalf of the plaintiff-appellant, and relied on thesecond proviso to section 173(1) of the Civil Procedure Code whichlays down that a party to an action may be called as a witnesswithout his name having been included in the list.
Learned counsel for the 2nd and 3rd defendants-respondentssubmitted that this witness could not be recognised as an agent ofthe plaintiff Bank because he had no authority to sign a proxy onbehalf of the bank; also that a witness to represent a bank should bea Director or some one of similar standing who has signed a proxy forthe plaintiff; also that he was not a “recognised agent" in law.
Learned counsel for the plaintiff-appellant contended that aDirector of the bank may not be able to give evidence about the factsof this case,' but this witness was conversant with the facts of thiscase and therefore moved to call him as a witness.
The learned Additional District Judge by his order made soonafterwards noted that the proxy for the plaintiff had been signed by aDirector and the Secretary. He also noted that the second proviso tosection 175(1) only enables a party to an action being called withouthis name being in the list, but not this witness, and upheld theobjection.
Thereafter learned counsel for the plaintiff-appellant had moved forpermission of court to call this witness in the interests of justice in theexercise of the discretion of court under the first proviso to section175(1).
The learned Additional District Judge noted that there had beenthree trial dates earlier and held that there were no specialcircumstances and refused the application.
Thereupon learned counsel for the plaintiff-appellant had statedthat since the court had refused the application of the plaintiff-appellant to call this witness, he was unable to proceed further withthis case. (It would appear that no other witness had been listed on sbehalf of the plaintiff). Then counsel for the 2nd and 3rd defendants-respondents had moved that the action against the 2nd and 3rddefendants be dismissed with costs, and accordingly the learnedAdditional District Judge dismissed the action against them withcosts.
From this judgment the plaintiff-appellant has filed this appeal.
The purpose of section 175(1) of the Civil Procedure Coderegarding the listing of witnesses is to apprise the other parties of thewitnesses who will testify so that they will be prepared to meet theirevidence and to cross-examine them accordingly.
The second proviso to section 175(1) applies where the party tothe action is a natural person (i.e., a human being). In this case theplaintiff was Hatton National Bank Limited, which is a corporate bodyand a legal person so that the plaintiff cannot be called as a witnessbut will have to give evidence through a natural person (i.e., a humanbeing). It may be a Director, the Manager, the Accountant or the ,Secretary of the Bank. Therefore it was necessary for the plaintiff tohave listed one or more witnesses,' preferably by name anddesignation, or failing that by designation alone (such as Director,Manager, Accountant or Secretary). Therefore the learned AdditionalDistrict Judge has rightly held that the name of this witness had notbeen included in the list and refused the application to call him.
However I am of the view that this is a fit case where the learnedDistrict Judge should have exercised his discretion in favour of the,plaintiff, in the interests of justice, and permitted this witness to giveevidence. Any hardship caused to the 2nd and 3rd defendants couldhave been alleviated by an appropriate order for costs and an
adjournment, if the 2nd and 3rd defendants-respondents were notready to meet his evidence.
Therefore I set aside that part of the order of the learned AdditionalDistrict Judge dated 1.3.83, where he refused permission to call thiswitness. I also set aside the order dismissing the plaintiff’s action withcosts and send this case back for trial according to law.
It will be open to parties to file fresh lists of witnesses anddocuments, with notice, at least 15 days before the next date ofhearing.
Mr. Choksy informs court that as the 3rd defendant-respondenthad died pending this appeal, the plaintiff-appellant has informedcourt by motion dated 6.10.92 that the plaintiff-appellant is notproceeding against the 3rd defendant-respondent.
Therefore the case will proceed only against the 2nd defendant-respondent. There will be no costs in appeal.
WEERASEKERA, J. – / agree.Appeal allowed as stated in order.
HATTON NATIONAL BANK LIMITED v. WARAWITAGE AND OTHERS