036-NLR-NLR-V-70-M.-M.-MUTTUWAPPA-and-others-Appellants-and-THE-EASTERN-SHIPPING-CORPORATION-LT.pdf
T. S. FERNANDO, J.—Muttuwappa v. The Eastern Shipping Corporation Ltd. 155
Present:T. S. Fernando, J., and Alles, J.M.M. MUTTUWAPPA and others, Appellants, and THE EASTERNSHIPPING CORPORATION LTD., Respondent
S. G. 147 (Inty.) of 1964r—D. C. Colombo, 51911IM
Civil Procedure Code—Section 423—Commission to examine a witness outside Ceylon—Scope of Court's discretionary power to refuse it.
Where the evidence of a witness residing outside Ceylon is admittedly vitalfor the decision of an action, section 423 of the Civil Procedure Code does notgive any discretionary power to the Court to refuse the issue of a commissionon the ground of the absence of a reason for the witness’s inability to come toCeylon.
A.PPEAL from an order of the District Court, Colombo.
Ranganathan, Q.C., with K. Thevarajah, for the plaintiffs-appellants.
J.W. Subasinghe, for the defendant-respondent.
Cur. adv. vult.
September 15, 1965. T. S. Fernando, J.—
This is an appeal from an order refusing an application for the issue bythe District Court of Colombo of a commission for the evidence of awitness for the plaintiffs to be recorded in Australia.
The action has been instituted by the plaintiffs, the consignees of ashipment of 200 cases of apples shipped in a vessel owned by the defendantfor carriage from Fremantle to Colombo. The plaintiffs allege that, inbreach of the agreement between them and the defendant, the vessel,instead of sailing direct from Fremantle to Colombo, was diverted by itsmaster to the port of Trincomalee resulting in a delay which rendered theapples unfit for human consumption and which caused the plaintiffs tosuffer loss in a sum of Rs. 10,973 53 which they sought in this action tprecover from the defendant.
156 T. S. FERNANDO, J.—Muttuwappa v. The Eastern Shipping Corporation Ltd.
At the stage of framing the issues to be tried in the action, the trialjudge accepted an issue in the following form :—
Issue 2 (6)—Did the defendant represent to the said shippers and/or
plaintiffs that the said ship would sail direct from Fremantle to Colombo
for discharge of the said apples ?
The trial was then refixed for the 19th August, 1963. On the 28thJune, 1963, the plaintiffs moved that a commission be issued for therecording in Australia of the evidence of one W. G. Adamson whom theyalleged was the person who made all the shipping arrangements inAustralia in connection with the shipment. They attached to theirmotion a copy of their letter to Adamson in which they had informedhim his evidence was important and vital and inquired from him whathis fees would be for coming over to Ceylon for the taking of his evidenceat the trial. Adamson replied to this letter to say that it will not bepossible for him to travel to Ceylon, but that he would be prepared toattend in Perth, Australia, if arrangements could be made for hisevidence to be recorded there.
Before the learned District Judge and before us counsel for both sidesadmitted that Adamson’s evidence was vital for the decision of this action.It should not be overlooked that there is no procedure available forcompelling Adamson to come to Ceylon to testify in a civil action.Section 423 of the Civil Procedure Code vests a discretion in a court to issue,on application thereto, a commission for the examination of a personresident outside Ceylon when the court is satisfied that his evidence isnecessary. The learned District Judge declined to issue the commissionsubstantially on the ground that no reason has been given for the inabilityof the witness to come to Ceylon. It is correct to say that Adamson’sreason for his inability to come to Ceylon is not expressly disclosed in thecorrespondence between him and the plaintiffs. Even if that reasoncannot be so inferred (and I am far from saying that it cannot be), it isplain that the witness is not willing to come and there is no law to beinvoked which can compel him to come here. I am in agreement withthe argument of counsel for the appellants that, where section 423 vestsa discretion in the court to issue a commission even where the evidence ofa witness merely is necessary, it is impossible to sustain the contention thatthat discretion should be exercised so as to refuse the issue of a com-mission where it is conceded that the evidence is not merely necessary,but indeed vital. It must also be mentioned that the present case is notone where it is plain that it is essential for the witness to be cross-examined before the trial judge. The party needing the evidence ofthe witness, of course, takes the risk of the weight that might otherwiseattach to the evidence being affected by the absence of the witness inthe proceedings taken in the presence of the trial judge.
In my opinion it is necessary for the purposes of justice being donebetween the parties to secure the evidence admitted in this case to bevital. The refusal to issue the commission appears to have been
SRI SKANDA RAJAH, 3.—Mack v. Mack
157
exercised on. a wrong principle, viz. on the ground of the absence of areason for the witness’s inability to come to Ceylon, and is thereforere viewable by this Court.
I would set aside the order appealed from and remit the case back tothe District Court with a direction that a commission do issue at theexpense of the plaintiffs to such a court or person as the trial judge maydeem fit for the evidence of the witness concerned to be taken. Theplaintiffs will be entitled to the costs of this appeal and of the argumenton the point in the District Court.
Alles, J.—I agree.
Order set aside.