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Present: Sir Joseph T. Hutchinson, Chief Justice, Mr. JusticeWendt, and Mr. Justice Wood Renton.
P1ER1S t>. PERERA.D. <7., Colombo, 21,970.
Order refusing to frame an issue—Appeal—Courts Ordinance (No. 1 of1889)—Civil Procedure Code, ss. 5 and 146.
Held, by Hutohinbon C.J. and Wood Rbmton J. (Wendt J.dubitante), that in a District Court case an appeal lies from anorder refusing to frame an issue suggested by one side and objectedto by the other, such order being “ a formal expression of adecision '* of the Judge within the meaning of section 5 of theCivil Code.
Wood Renton J.—The framing of issues under section 146 ofthe Civil Code involves a judicial decision.
PPEAL from an order of the Acting District Judge of Colombo(J. R. Weinman, Esq.).
The plaintiff sued the defendant for libel. The defendant deniedthat he made use of the precise words set out in the plaint, andwhile admitting that some of the statements were true in substanceand in fact, he denied that they bore the interpretation put on themby the plaintiff, or that he made' them falsely and maliciouslyagainst the plaintiff. The parties not being agreed on the issues, aday was fixed for the consideration of the issues suggested by bothparties. Among the issues suggested by the plaintiff was thefollowing: " Were the statements made by the defendant or any ofthem true in substance and in fact ? ” The defendant objected tothis issue, and proposed the following instead: “ Were the state-ments made o£ and concerning, the plaintiff by the defendant falseand malicious, and has the plaintiff thereby been injured in hisfeelings and in his good name and reputation, and* prejudiced inrespect of his present position as a Member of the Municipal Councilwho is seeking re-election at the forthcoming election to be held inDecember, 1905 ?
Tho Acting District Judge (J. R. Weinman, Esq.) adopted theissue proposed by the plaintiff, and rejected the one suggested by thedefendant.
The defendant appealed.
It Vas objected on behalf of the. plaintiff, respondent, that noappeal lay from the order of the District Judge.
( « )November 7.
Batva* in support of the objection.—The order is not a final one,and is not appealable. There is nothiug in the order from which anappeal could be taken. It has been held that an order fixing a casefor trial is not appealable, Le Mesurier v. Le Mesurier (1). Undersection 146 of the Civil Code the duty is cast on the Court offraming issues, and the order of the Judge could only be questionedat the final appeal. Otherwise a litigant can obstruct the Courtand impede the progress of a case by filing an appeal from an orderframing or refusing to frame a particular issue.
Walter Pereira, K.G.t S.-O. (with him Akbar), for the defendant,appellant.—Every order of a District Court is appealable undersection 75 of the Courts Ordinance (No. 1 of. 1889). Refusal toframe a particular issue is an “ order ” within the meaning of section5 of the Civil Procedure Code. It was held by Bonser C.J. in D. C.,Chilaw, 24,176 (2), that an order rejecting security tendered forpurposes of appeal was appealable. The framing of issues is a veryimportant step in a case, as the whole course of a trial depends onthe issues to be decided. Fixing a case for trial is a purely minis-terial act, while the framing of issues is a judicial act, and involvesthe exercise of judicial discretion.
7th November, 1906. Hutchinson C.J.—
The first matter for our decision in this case is the preliminarypoint taken by the respondent's counsel, whether or not an.'appeallies from an order of the District Judge framing certain issues tobe decided at the trial.
The action before us is one for-libel and defamation of character;the defendant denied that he made use of the precise words set outin the plaint, and while admittingthat some of thestatements are
true in substance andin fact,hedeniesthat theybear the inter-
pretation put on them’by the plaintiff, or that he made them falselyand maliciously against the plaintiff. The parties did not agree asto what the issues were, and each submitted the issues which heproposed to the Judge; there was a special day fixed for considera-tion of the issues, and the Judge then considered them. I knowthat it is not always easy to decide offhand in a libel or blander' action on whom theburdenofprooflies. TheJudge had to
consider the questionand tomake uphis mind,and he, if we
express ouVselves in ordinary language, " decided in the plaintiff'sfavour. "
(1) (1891) 2 C. L. R. 21.(2) S. C. Min., July 25, 1895.
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Under the* Courts Ordinance an appeal lies against every judg- 1906.ment, decree, or order, and if you take the definition of an order November 7.which is given in section 5 of the Civil Procedure Code, that is, “ a Hutchinsonformal expression of a decision ” of the Judge, this is an “ order ”and therefore an appeal lies against it.
It is said that, if appeals are allowed against decisions of thiskind, the powers of appeal will be abused. I think that this parti-cular case is one in which an appeal might not unreasonably bebrought. If abuse does arise in the way suggested, this Court will,doubtless be able to stop it and to protect itself. '
The preliminary objection therefore fails, and the appeal can beset down for argument on the merits.-
I entertained some little doubt at’ the commencement of theargument as to whether the District Judge’s expression of opinionamounted to an order; my doubt, however, is riot sufficientlydecided to make me dissent from what I understand is the view ofthe majority of this Court.
I agree that the preliminary objection should be overruled andthe appeal heard.
Wood Renton J.—
I entire!v concur in what has fallen from the Chief Justice. It
appears to me that the framing of issues under section 146 of theCivil Procedure Code involves a judicial decision, and frequentlythe decision involved—for example, where ifr is one on the questionof the burden of proof—goes to the very root of the case.
Preliminary objection overruled.
PIERIS v. PERERA