007-NLR-NLR-V-12-PERERA-v.-AVISHAMY-et-al.pdf
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1908.
September24.
Present: Mr. Justice Wood Renton and Mr. Justice Wendt.PERERA v. AVISHAMY et al.
D. C., Kalutara, 3,621.
Documents, proof and identification of—“ Documents put in ”—Irregu-larity—Civil Procedure Code, ss. 111—114.
In putting documents in evidence in a case the provisions ofsections 111-114 of the Civil Procedure Code ought to be observed.It is irregular simply to say “ Documents put in.”
PPEAL from a
judgment of the District Judge of Kalutara.
Bawa, for the defendants, appellants.H.J.C. Pereira, for the plaintiff, respondent.
September 24, 1908. Wood Renton J.—
* , * * * *
The irregular manner in which the proceedings were conductedin the Court below renders it difficult to do justice to the partiesin this case. In defiance of the express provisions of the CivilProcedure Code (sections 111-114) as to the mode in which docu-mentary evidence is to be proved or admitted and identified, theJudge merely makes the following journal entry at the close of therespondent’s case :—“ Documents put in,” without a woto toindicate what documents are referred to. In spite of the expresscondemnation of the practice by this Court in S. C. No. 292, D. C.,Kalutara, No. 2J9111—a condemnation endorsed by Middleton J.in 96, C. R., Colombo, 3,3042—the learned Judge, after bothsides had closed their respective cases, proceeded to give theappellants’ proctor an opportunity of explaining the deed of transfer(P 5) dated February 13, 1903, of William’s share by JohnWickramaratne to the sixth defendant-appellant, and, if necessary,of examining the vendee. He further called for his own informationfor one deed recited in P 1, and permitted the respondent’s proctorto file an additional list of documents, containing the deeds P 6,P 9, P 10, to which he refers in the judgment. So far as I caDmake out from the record, both P 5 and the assessment receiptsP 9 and P 7 were put in en bloc at the close of the respondent’scase. Speaking for myself, I desire to say that proceedings of thisdescription are worse than irregular. They are positively unjust
1 fi[. G. Min., June 4» 1907.2 S. G. Min., September 17, 1907.
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to both sides. They directly tend to encourage appeals from the 1908.learned Judge’s decisions, and make the task of the Appeal Court, September 24.in endeavouring to arrive at a sound conclusion, needlessly laborious.wood
In the present case, however, I am, with some hesitation, of Renton J.opinion that the appeal should be dismissed. If the evidence onwhich the learned District Judge relied, and which I have alreadysummarized, may fairly be taken account of, it is undoubtedlysufficient to support his decision. I think that the appellants werenot taken unaware by, and that they must be held to haveacquiesced in the admission even of the evidence which was legallyexceptionable. The respondent in his evidence – (Record P 25)distinctly called their attention to the fact that efforts had beenmade to get the assessment receipts. His witnesses, John WilliamPerera (Record P 38) and Hendrick Perera (Record P 39), allegedin terms that receipts had been given to Panis. The fifth defendant-appellant traversed this allegation stating (Record, pages 53, 55)that Thelenis paid the rates, and that she herself held all theassessment receipts, none of which, however, she produced. Noobjection appears to have been taken by the respondent’s proctoreither to the admission of these receipts or to the sufficiency oftheir identification with the land and with Panis. The additionallist of documents filed by the respondent’s proctor after the closeof the case was duly notified to, and bears the signature of, theproctor for the appellants, who himself took advantage of there-opening of the proceedings by the learned District Judge to filethe plaint in the partition case D. C., Kalutara, No. 3,519 (whichMr. Bawa made a faint attempt, on the argument of the appeal,to induce us to regard as laying the foundation for a plea of resjudicata against the respondent), and' apparently addressed theCourt again before judgment was delivered.
On the grounds I have indicated, I would dismiss the appeal withcosts.
A-ppeal dismissed.