075-NLR-NLR-V-57-K.-MELIS-et-al-Appellants-and-K.-ADONISA-et-al-Respondents.pdf
Present: Basnayake, A.C.J., and PuIIe, J.K.MELIS ei al., Appellants, and K. ADONISA el at., RespondentsS. C. S2—D. C. (Inti/.) Gampaha, 1S44/L
J is ties—Delated application to add certain issues—Award of costs—Civil ProcedureCode, s. 140.
Tho Court is not entitled to penalise a party in costs for suggesting belatedlyan issue which arises on the pleadings.
./^LPPEAL from an order of the District Court, Gajnpaha.
IF. Jayeuardene, Q.C., with F. IF. Obeyesekere, for tho 1 (a) to 1 (/)Defendant-Appellants and the 2nd Defendant-Appellant.
A. L. Jayasnriya, with S. J/. H. de Silva, for tho Plaintiff-Respondents.July 7, 1955. BaS.vav.ake, A.C.J.—
This is an interlocutory appeal from an order dated tho 7th October1952 ordering the defendants 1 (a) to 1 (/) to pay the plaintiffs as costs ofthe day 10 guineas. The order complained of was made in thesecircumstances. Mr. Obeyesekere, Counsel for the defendants I.(a) to I (/),suggested five additional issues, tho original issues having been framedearlier. Mr. Perera for the plaintiffs objected to two of the issues, marked9 and 10, as they did not arise on the answer. After argument of Counsel,the learned Judge allowed the issues to which objection was taken andCounsel for tho plaintiffs asked for costs. The learned District Judgegranted the application for costs, and ordered the defendants 1 (a) to 1(f)to pay the plaintiffs 10 guineas.
We do not think that this is a case in which costs should have beenordered as the learned trial Judge accepted the issues which were objectedto on the footing that they arose on the pleadings, for he did not orderthe answer of the defendants be amended. Under section 146 of theCivil Procedure Code, if the parties are not agreed as to the questions offact or of law to be decided, it is the duty of the Judge “ upon the allega-tions made in the plaint, or in answer to interrogatories delivered in theaction, or upon the contents of documents produced by either party, andafter such examination of tho parties as may appear necessary, (to)ascertain upon what material propositions of fact or of law the partiesare at variance ” and to proceed to record the issues on which the rightdecision of the case appears to the Court to depend. It would appearfrom the provisions of the Code cited above that the entire duty ofascertaining upon what material proposition of fact or of law the partiesare at variance is placed on the judge. He should not therefore penalisea party for suggesting an issue, belatedly though it be, which arises onthe pleadings.
We think that the defendants have been wrongly penalised in costs.
We set aside the order. The appellants are entitled to .their costs ofthis appeal.
Ppixe, J.—I agreo.
Order set aside.