English as ‘ L. A. de Silva’ (and in Sinhalese as

inconsistent with the evidence of Lakshman de Silva that (so far as heknows) the ex-Chairman only signed in English. But I have in thisconnection pointed out in Court that, although I myself sign Orders underthe Courts Ordinance only in English, my signature is printed in Sinhalain Gazette notifications of my orders.
The trial Judge was also probably influenced by the fact that in theGazette notices of the Town Council published in Sinhala the Chairman’s
This circumstance is apparently
name is printed as
H. N. G. FERNANDO, C.J.—Edrick de Silva v. Chandradasa de Silva 183
At another stage of the judgment, there occurs a criticism that thewitness would not have called the Chairman “ L. A. Uncle ” if as thewitness had himself said the Chairman’s name was Edrick. Here againthere is a simple explanation to be found in the Gazette notice. If theChairman insisted on signing himself ‘ L. A. ’ although his name is some-times spelt with an “ E ”, there is nothing suspicious in the evidence ofthe witness that he called the Chairman “ L. A. Uncle ”.
The learned Judge unfortunately failed to realise that these veryGazette notifications of the Town Council corroborate Lakshman deSilva’s evidence that the Chairman had used an alias ; although his nameEdrick is spelt with an “ E ”, he signs (according to the witness) as‘ Adrich The Gazette notices which have the printed signatures ‘L. A.de Silva’ show that the Chairman did use an ‘A’ and not an £E’ in signinghis name.
The last of the substantial matters referred to in the judgment whichrelates directly to the credibility of Lakshman de Silva is contained inthis passage from the judgment :— (p. 443).
“ Thus, during an ostensibly gentle but devastatingly effective pieceof skilful cross-examination by Mr. Shinya, this witness was compelledto admit that he was not personally aware whether the person who wasseated in Court and referred to as the petitioner was in fact thepetitioner.”
The only evidence to which this passage is referable is evidence at page2068, and Counsel for the respondent in appeal has not suggested that itrefers to anything else. The following is the relevant evidence :—
“ Q. How long after that did you go and have discussions orconsultations regarding this petition with the ex-Chairman ?
A. I believe about 1 week or 10 days of the petition being filed thepetitioner and I came to Colombo to discuss matters with thepetitioner’s Proctor.
Q. The reason for you to say that gentleman—the ex-Chairman—-is the petitioner is because he told you so. As a result of whathe told you ?
A. Yes.”
It is quite correct that in these answers the witness did say that heknew that the ex-Chairman is the petitioner because the ex-Chairman hadtold him so. But I can see here no admission under compulsion, butmerely a truthful answer to a leading question. Indeed I quite fail tounderstand what respondent’s Counsel thought he could gain from thisquestion. The witness had never claimed in his earlier evidence that hisinformation as to the identity of the petitioner was based otherwise than
184 H. N. G. FERNANDO, C.J.—Edrick de Silva v. Chandradasa de Silvu
on the ex-Chairman’s own statement and conduct ; so that there wasnothing in this particular answer which contradicted or modified anyprevious evidence, and nothing to justify the Judge’s impression that thewitness contradicted himself or admitted anything under compulsion.
The witness had earlier stated that he was not interested in filing anelection petition because he was not in a happy mood after his defeat.Then he came to know that the ex-Chairman was interested in filing apetition. He was told by the ex-Chairman that he had filed one, and hethen associated himself by going with the petitioner to see the Proetor.The questions which were put related to a period shortly after the electionand the ansAver truly states how first the witness became aware as to whohad filed the petition. In fact I cannot see how else the witness couldhave become aware of the matter. At that stage the most reliablesource from which to obtain information about the filing of the petitionwas from the petitioner himself. It is quite unreasonable to expect thatLaUshman de Silva should have tried to verify the truth of what theex-Chairman told him by going to Colombo and inspecting (if theRegistrar would permit him) the original petition ol appeal in the SupremeCourt. Plaintiffs in civil actions are identified numerous times everyday by witnesses who have not watched them signing proxies.
Examination of the evidence of Lakshman de Silva, and of the treat-ment of that evidence in the judgment, shows that on all or nearly all ofthe matters which influenced his rejection of the evidence, the Judgeeither misconceived the effect of the evidence and of suggestions in cross-examination, or acted upon inferences which were not rationally possible.On this ground, and on the grounds of misdirection stated earlier in thisjudgment, we allowed this appeal and directed that the hearing of thepetition must continue before the Election Judge.
I do not propose to examine much of the remaining part of the judg-ment, in which the learned Election Judge refers to matters unconnectedwith the evidence given by Lakshman de Silva. But one of the mattersdiscussed in the judgment, namely, the absence of the petitioner fromCourt on the last day of hearing, arose from a misconception of what hadtaken place in Court. According to the record (p. 2083 of the brief)Mr. M. L. de Silva, Junior Counsel for the petitioner, is recorded as havingmade the following statement before the Court adjourned on 17thSeptember 19CG :—
“ I am sorry, My Lord, that the petitioner is not here. He is veryseriously ill and is in the hospital. I close the case for the petitioner.”
On the next day of hearing (19th September 190G), Counsel for therespondent, in asking for corrections moved for the following correction
“ Finally on the last page Mr. Mahinda da Silva said : ‘ I am sorry,My Lord, that the petitioner is not here. His son is seriously ill andis in the hospital ’. ”
Sediris Singho v. Wijeainght
Despite this correction which was made by Counsel for the respondent,the learned Election Judge in his judgment states in caustic terms thatthe petitioner “ happened to fall seriously ill and was said to be in
hospital” “ The alleged serious illness of the person seated
behind Counselis open to the gravest suspicion.” “ Did
this illness result from being an eye witness on the previous day to the
inextricable position in which Lakshman de Silva found himself”
“ Did he suddenly take ill in the thought that, if he came to Court thatday, the Judge might of his own motion call him into the witness box. .. . ”
These comments were made adversely to the petitioner, and it is mostunfortunate that they were based upon a complete misconception as tothe stated reason for the absence of the petitioner from court. Thatabsence was a factor which influenced the decision of the learned Judge,because it is referred to among the reasons for the decision.
I have shown that the learned Judge wrongly disbelieved certainwitnesses, particularly Lakshman de Silva. But I have no doubt thatsuch former disbelief will not influence the mind of the learned Judge inhis consideration of the further matters which will now arise for decision.
Tambla.it, J.—I agree.
Siva Supramantam, J.—I agree.
Appeal allowed►