NIHAL SRI AMERASEKERA v. GAMINI LAKSHMAN PEIRIS

029-SLLR-SLLR-2001-V-1-NIHAL-SRI-AMERASEKERA-v.-GAMINI-LAKSHMAN-PEIRIS.pdf


NIHAL SRI AMERASEKERA
v.GAMINI LAKSHMAN PEIRIS
COURT OF APPEALJAYASINGHE, J. ANDUDALAGAMA, J.
CALA NO. 255/2000DC COLOMBO NO. 21519/MR19th JANUARY. 2001
Civil Procedure Code – Sections100, 102 and 108 of the Civil ProcedureCode ■ Interrogatories – Discovery of documents – Preliminary objection -Non disclosure of a cause of action and prescription.
The District Court held that the preliminary issues could betaken up before making an order on interrogatories and discovery ofdocuments.
On leave been sought –
Held :
Section 108 of the Civil Procedure Code provides a District Judgeample discretion to control proceedings.
Per Udalagama, J.
“Trial Judges should not be fettered by technicalities"
The District Judge was clearly empowered by section 108 todetermine any issue or question prior to deciding upon the right todiscovery or inspection, if court is satisfied that such discovery orinspection depends on the determination of any issue or question.
LEAVE TO APPEAL from the Order of the District Court of Colombo.
K. Kanag – Iswaran. P.C., with Dr. Harsha Cabral and M.A. Sumanthiranfor plaintiff – petitioner.
418
Sri Lanka Law Reports
(20011 1 Sri UR.
Romeshde Silva. P.C.. with Harsha AmerasekeraandSugaih Caldera forlsl defendant.
E.D. Wickremanayake with Kushan de Alwis for 2"d defendant-respondent.
Cur. adv. vult.
February 8, 2001.
UDALAGAMA, J.This is an application by the plaintiff-petitioner to set asidethe order of the learned District Judge dated 25. 08. 2000 onthe question whether the District Judge should in the firstinstance consider the application of the plaintiff-petitionerrelating to interrogatories and the discovery of documents orwhether -the learned District Judge should consider the lsldefendant-respondent's preliminary issues. The preliminaryissues of the lsl defendant-respondent were filed by way ofmotion and referred to the non-disclosure of a cause of actionand that the action appeared to be prescribed. The Is'defendant-respondent’s contention was that the said twopreliminary issues warranted a dismissal of the action andthat the matter deserved consideration prior to the order onthe question of interrogatories and discovery of documents.
The learned District Judge after considering the writtensubmissions tendered by the parties on this question came toa finding that there was no provision in the Civil ProcedureCode to the effect that an application for interrogatories anddiscovery of documents need be taken up in the first instancebefore considering the other preliminary issues. Acting inaccordance with the provisions of section 108 of the CivilProcedure Code he made order on 25.08.2000 that a decisionon the preliminary issue prior to making an order oninterrogatories and discovery of documents deemed more“suitable.”
CA
Nihal Sri Amerasekera v. Gamini Lakshman Petris
(Udalagama. J.)
419
The plaintiff-petitioner appeals therefrom,
Learned Counsel for the plaintiff-petitioner, inter alia,contended before this court that as the matters of the plaintiff-petitioner’s application made under sections 100 and 102of the Civil Procedure Code had on 15. 06. 99 been fixedfor inquiry, that the learned District Judge now hadno jurisdiction to set aside that order for inquiry evenunder the provisions of sections 108 and 146 of the CivilProcedure Code.
I am unable to agree with the learned Counsel for theplaintiff-petitioner on the above submission as this contentionis clearly untenable.
Section 108 of the Civil Procedure Code provides a DistrictJudge ample discretion to control proceedings. Tried Judgesshould not be fettered by technicalities. In this instance thelearned District Judge is clearly empowered by the saidprovisions in section 108 aforesaid to determine any issue orquestion prior to deciding upon the right to discovery orinspection if Court is satisfied that such discovery or inspectiondepends on the determination of any issue or question. Inthose circumstance it could not be said that the District Judgeis bereft of discretion to come to a finding that by decidingpreliminary issues, in the first instance, that a determinationon discovery and/or inspection may sometimes be evenredundant. In the circumstances I see no reason to interferewith the finding of the learned District Judge dated25. 08. 2000 to decide the preliminary issues submitted bythe 1st defendant-respondent before considering theapplication of the plaintiff-petitioner for interrogatories anddiscovery of documents.
420
Sri Lanka Law Reports
12001] 1 Sri UR.
This application of the plaintiff-petitioner is dismissed withtaxed costs.
JAYASENGHE, J. – I agree.
Application dismissed.