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Wendt, Acting A.-G., with Morgan, for appellant, submittedthat the District Judge had wrongly taken the evidence of theForest Banger. Both parties had closed their cases, and the Courthad reserved its judgment on the material they had placedbefore it {Fernando v. Jolianes Appu, 1 8. C. R. 262). Section134 apparently contemplated the case of a person whose valueas a witness was unknown to the parties before the trial, butbecame apparent during the course of the trial. The words “ notnamed as a witness by a party to the action ” were suggestive. Itthey knew of his value but deliberately abstained from calling him,the Court should not. But, even if admissible, his evidence wasimproperly taken without notice to either party. [Bonsek, C.J.—You do not complain of want of notice in your petition of appeal,but only of the fact that his evidence was taken.] The plaintiffshave sued in too high a class, and should therefore make good todefendant the unnecessary costs to which he was thereby put.That was the direction given by this Court in Gunetehera v. Sena-ratne decided on 14th February, 1900 (D. C., Matara, 2,206).
Sampayo, for respondent.—The provisions of section 134 of theCode justify the examination of the Forest Officer by the DistrictJudge, and there is no reason for limiting their operation in theway suggested by the appellants. As to costs, it is submitted thatthe matter of class is discretionary with the judge, and where,as in this case, no sum is tendered to the party or paid into Court,the order as to costs, though in a higher class than the amountawarded, should not be disturbed.
28th June, 1900. Bonsek, C.J.—
In this case the District Court awarded to the plaintiff damagesamounting to Ks. 997.50, in an action which he brought againstthe defendants based upon the conduct of the defendants ingetting an injunction against him and seizing certain timberbelonging to the plaintiff, whereby the plaintiff was preventedfrom selling the timber and had to bear certain expenses forwarehousing it.
The plaintiff claims Bs. 4,368.20, being damages sustained byhim for the detention of the timber and its deterioration in valueby reason of such detention.
The defendant appeals on several grounds, most of which wereabandoned by his counsel in the argument; but one objectionwas pressed and that was this, that there was no evidence of thedepreciation in value of this timber except the evidence of theforest ranger, and that that forest ranger had not been called bythe plaintiff or the defendant, but that he had been called as a
June 20.
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1900. witness mere motu by the District Judge himself. It was con-JuneSO. tended that the District Judge had no right to inform himself inBosses, C.J. this way, and that that evidence ought to be disregarded entirelywith the result that the plaintiff’s claim for damages would bedismissed as not having been proved. It seems to me that theDistrict Judge was quite right in acting as he did in gettingevidence to inform himself on this pont—the evidence of agentleman who has no bias on either side and who was wellacquainted with the matter—and in my opinion not only was theDistrict Judge’s procedure in accordance with common sense,but it was justified by our Code. Section 134 clearly authorizesthe District Judge to act in this way.
Then it was urged that the plaintiff by claiming a much largersum than the District Judge held that he was entitled to, put thedefendant to unnecessary expense. A claim between Bs. 1,000and Bs. 5,000 falls under class V. of the schedule to the StampOrdinance. It was necessary, therefore, for the defendant toaffix stamps of the value of that class to all his proceedings. Totake one instance, he had to affix a stamp of Bs. 7.50 for his answer,whereas if the action had been brought in class IV., in which classthe District Judge’s judgment finds it ought to have been brought,the stamp would have been Bs. 5 only.
The District Judge ordered that the costs payable by thedefendant should be paid in class IV. That is quite right so faras it goes; but he has not made any allowance to the defendantfor the unnecessary costs which he has' been, put to by beingobliged to use higher stamps. We have in several cases decidedthat it is right as a general rule that, when a plaintiff brings hisaction in a class higher than that in which the result shows heought to have brought it, and puts the defendant to unnecessaryexpense, that unnecessary expense should be set off against costspayable by the defendant to the plaintiff.
In the present case I see no reason why that rule should notbe followed. The decree will be amended by allowing thedefendant to set off any unnecessary costs which he has been putto by the exaggerated claim.
As regards the taxation of the proctors’ and advocates’ costs,that will of course fall within the class corresponding to the classof the Stamp Ordinance; that is to say, it will be under class m.to the schedule of the Civil Procedure Code.
Monchbiff, J.—I am of the same opinion.