MohamedAli v People’s Bank
(Udalagama, J. P/ CA)
MOHAMED ALIvPEOPLE’S BANKCOURT OF APPEALUDALAGAMA, J. (P / CA)
CALA 342/2003JANUARY 23, 2004FEBRUARY 17, 2004
Civil Procedure Code – Sections 121 (2) and 175 (1) (2) – Document notspecific – Not adequately described – Discretion of Court – to meet ends andinterests of justice.
When the plaintiff-respondent People’s Bank moved to mark a documentissued by the plaintiff-respondent Bank, the defendant objected to the markingof same on the basis that the document in the list of documents was notspecific and was listed under a general description.
The District Court disallowed the objection.
Held (1) The District Court has the discretion in terms of Section 175 (2) toadmit or to reject documents.
The discretion of the trial Judge is exercised purely to meet theends of justice.
The refusal to receive the documents in question in evidencewould in all probability prevent the trial Judge coming to a just andequitable determination, (The list had described the documents tobe produced as those exchanged between the plaintiff and thedefendant).
APPLICATION for leave to appeal from an order of the District Court ofColombo.
Lakshman de Silva for appellant.
S. Dharmawardana SC for respondent.
Sri Lanka Law Reports
 3 Sri L.R
March 4, 2004
UDALAGAMA, J. (P / CA)The plaintiff'Bank in D.C. Colombo case No. 12836/MR filed 01action against the 1-3 defendants claiming jointly and/or severallya sum of Rs. 1,250,000/- with interest.
The case when taken up for trial on 24.01.2003, learnedCounsel for the plaintiff moved to mark a document dated 07.07.88purportedly issued by the plaintiff-Bank. The learned Counsel forthe defendant objected to the marking of same on the basis that thedocument produced under item 39 of the list of witnesses anddocuments previously filed was not specific and was listed under ageneral description to read as “all documents exchanged betweenthe plaintiff and the 1,2 and 3 defendants”.10
Admittedly the relevant provision of the law applicable to theproduction of documents in the trial court is section 175 of the CivilProcedure Code.
Provisions of section 175(1) which refers to a list of witnessesfiled in terms of section 121 of the Civil Procedure Code contains aproviso which enables a court in the exercise of its discretion inspecial circumstances where the interest of justice demands topermit a witness not listed to be examined and section 175 (2)refers to documents not included in the list in terms of section 121referred to above and received in evidence with leave of court. The 20proviso to section 175(2) however refers to the non applicability ofthe provisions in section 175(2) aforesaid when such documentsare produced in cross-examination or used to refresh the memoryof a witness.
In the instant application undoubtedly the impugned documenthad been listed although as stated by learned Counsel for thepetitioner was not adequately described.
It is also observed that the list had described the documents tobe produced as those exchanged between the plaintiff and thedefendants.30
That the District Court has the discretion in terms of section175(2) referred to above to admit or to reject documents is alsoundisputed.
MohamedAli v People's Bank
(Udalagama, J. P/ CA)
The discretion of the trial judge in my view is exercised purely tomeet the ends of justice. As specifically referred to by the learnedDistrict Judge in his impugned order at page (4) refusal to receivethe documents in question in evidence would in all probabilityprevent the trial judge coming to a just and equitable determinationwhich finding in my view is rational and reason enough to receivethe impugned documents and the discretion exercised by the 40learned District Judge to receive the documents in evidence, is afinding this court would not interfere with as the order was wellwithin the exercise of the discretion granted to a trial judge by law.
In fact the learned District Judge had been careful to permit thereceipt in evidence of only 4 documents specified in this order.Admittedly even these 4 documents were ones that had beenexchanged between the parties to the action, clearly eliminating theelement of surprise.
Besides I would hold that in the circumstances of the instantaction based on an outstanding claim between the Bank and the 1- 503 defendants the learned District Judge correctly exercised hisdiscretion to receive the documents objected to in the interests ofjustice and to ascertain the truth considering also that fact that theauthenticity of the documents was not specifically challenged.
For the aforesid reasons this application to vacate the order ofthe learned district judge dated 05.09.2000 is refused anddismissed with costs fixed at Rs. 5000/-.
S.l. IMAM, J. – I agree.
MOHAMED ALI v. PEOPLES BANK