015-SLLR-SLLR-2007-V-1-PERERA-v.-CALDERA-AND-OTHERS.pdf
CA
Perera v Caldera and others
165
170
PERERA
v
CALDERA AND OTHERS
COURT OF APPEALEKANAYAKE, J.
GOONERATNE, J.
CA 1096/96 (F)
DC HOMAGAMA 235/PAUGUST 27, 2007
Civil Procedure Code – S114 (3) – S154 (3) – S187 – Documents markedbecome part of the record – Should Court call for documents? Answering ofissues – Bare answers – adequate ?
Held:
The absence of answering the points of contest in a judgment -would amount to a clear breach of S187.
The points of determination and the decision thereon needs to beembodied in the judgment which would refer to the reasons for suchdecision.
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Sri Lanka Law Reports
[2007] 1 Sri L.R
There is a duty on Court to take the documents tendered andmarked at the trial to the custody and kee0 them filed of record -documents marked in evidence become part of the record.
Per Anil Gooneratne, J.
There seems to be a serious lapse in this case where a judgment has beenpronounced without documents being considered by the original Court, and itwould be no excuse for a trial Court Judge to observe on the judgment that thedefendant had not tendered the marked documents to Court. The DistrictJudge should call for those documents”.
APPEAL from the judgment of the District Court of Homagama.
Case referred to:-
Podiralahamy v Ran Banda – 1993 – 2 Sri LR 20.
Dona Lucihamyv Ciciliyanahamy – 59 NLR 214
Wamakula v Ramani Jayawardane – 1990 1 Sri LR 207
November 27, 2007ANIL GOONERATNE, J.
This appeal arises in a partition case from the Judgment of 01District Judge, Homagama dated 4.10.1996. In the Judgment it isstated that parties proceeded to trial on 7 points of contest. Plaintiffhad produced plan marked ‘x’ and two deeds marked P1 & P2. Inthe Judgment the learned District Judge states that the documentsproduced in evidence by the defendants had not been tendered toCourt. In the petition of Appeal it is also averred inter alia that thelearned trial Court Judge had not given due consideration to theevidence led by the defendants and the Judgment had beendelivered in the absence of the document of the defendants. It is 10
the position of the appellant that the Judge had failed to call for thedefendant-appellant’s documents.
On a perusal of the Judgment I find that the learned TrialCourt Judge had not considered the points of contest. In theabsence of answering the points of contest in a judgment wouldamount to a clear breach of section 187 of the Civil ProcedureCode.
In paragraph 7C of the Petition of Appeal it is averred thatcourt made order for lis pendens on 21.7.1988 and 9. 3.1989 but
there is no compliance with the court order.
20
CA
Perera v Caldera and others (Anil Gooneratne. J.)
167
There seems to be a serious lapse in this case where ajudgment had been pronounced without documents beingconsidered by the Original Court and it would be no excuse for atrial Court Judge to observe in the Judgment that the defendanthad not tendered the marked documents to Court. The DistrictJudge should call for those documents. In Podiralahamy v Ran
BandaW It was held that –
"There is a duty on Court to take the documents tendered andmarked at the trial to its custody and keep them filed of record.Documents marked in evidence become part* of the record," 30and
Atpg. 21 – The provision of section 154 (3) reads as follows:-
“The document or writing or being admitted in evidence theCourt, after marking it with a distinguishing mark or letter by whichit should when necessary be ever after referred to throughout thetrial.”.. .
The explanation to the subsection reads as follows:*
“ Whether the document is admitted or not it should be markedas soon as any witness makes a statement with regard to it and ifnot earlier marked on the account, it must at least be marked when 40the Court decides upon admitting if.
In the instant case the defendant-appellant’s documents D1 toD10 were not only marked but also led in evidence without anyobjection from the opposing party. Those documents have beenadmitted; therefore the Court in terms of the provisions of section114(3) should have kept them in its custody. If was for conveniencethe Court had allowed the Attorney-at-Law to the defendant-appellant to retain the documents during the trial, there was a dutycast on the learned District Judge to call for the documents.
The learned Counsel or the appellant cited an unreported soauthority CA/SC No. 63/76(F) D.C. Kurunegala No. 357/LCAminutes of 25.10.1984, where Justice Atukorala observed: “we areof the view that documents once marked in evidence become partof the record and should remain the custody of Court."
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Sri Lanka Law Reports
[2007] 1 Sri L.R
The Judgment gives no indication to the points of contest
raised at the trial. Even the bare answers to points of contest
although not permissible and not suggested or answered by the
original court would make this a bare judgment without the required
requisites in term of section 187 of the Civil Procedure Code. The
Appellate Court should be in a position to glance through the 6o
answers given to the points of contest before examining the
reasons for same, and should not be called upon to re-write the
judgment of the Original Court to fill in the gaps by suggesting that
no prejudice would be caused to the parties notwithstanding the
bare answers to issues. In the instant case not even the bare
answers are incorporated in the judgment of the Original Court.
Section 187 of the Code reads thus….
"The judgment shall contain a concise statement of the case,the points for determination, the decision thereon, and the reasonsfor such decision; and the opinions of the assessors (if any) shall 70be prefixed to the judgment and signed by such assessorsrespectively."
The points for determination and the decision thereon needsto be embodied in the Judgment, which should refer to the reasonsfor such decision. I am inclined to follow the decision on requisitesof Judgment reported in Lucyhamy’s CaseM and Warnakula vRamani Jayawardene@).
The Court is not inclined to deviate from the usual and normalpractice of answering the issues or points of contest.
In the circumstances there is no need to examine the merits of sothis case in the absence of mandatory requirements which have notbe complied with by the Original Court. Therefore I set aside theJudgment of the learned District Judge and send the case the backfor trial de novo. Subject to this direction this appeal is allowed withcost.
EKANAYAKE, J. – I agree.
Appeal allowed.
Trial de novo ordered.