008-SLLR-SLLR-2005-V-3-PREMASIRI-AND-OTHERS-vs.-KUMARASINGHE.pdf
CA
Premasiri and Others vs Kumarasinghe (Wimalachandra J.)
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PREMASIRI AND OTHERSVSKUMARASINGHECOURT OF APPEALSOMAWANSA. J. (P/CA) ANDWIMALACHANDRA, J.
CALA 28/2004.
DC BANDARAWELA 829/L.
JUNE 29, 2005.
Civil Procedure Code, section 121 — Name of witness in the list – Is a partyentitled to object to a witness being called on the basis that the witness wouldgive irrelevant and inadmissible evidence ?
HELD:
• 1. A witness can be called to give evidence if his name has been includedin the list.
A party cannot object to such a witness being called, merely on theground that the witness will give irrelevant and inadmissible evidence.
The court cannot even with the consent of parties depart from theprovisions of law, as to how evidence shall be given by a witness.
Per Wimalachandra, J.
“A party can only object to a witness giving inadmissible and or/irrelevantevidence ; it is for the Judge to decide whether evidence is inadmissibleor irrelevant”
APPLICATION for leave to appeal from an order of the District Court ofBandarawela.
Hemasiri Withanachchi for defendant-petitioner.
Sunil F. A. Cooray for plaintiff – respondent.
Cur.,adv.vult.
August 24, 2005.
L. K. WIMALACHANDRA. J.This is an application for leave to appeal from the order of the DistrictJudge of Bandarawela dated 12.01.2004. By that order the learned District
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Sri Lanka Law Reports
(2005) 3 Sri L ft
Judge allowed the plaintiff’s application to call Hitihamy MudiyanselagePremadasa, an engineer of the Road Development Authority as a witness.
‘The defendant-petitioners (the defendants) objected to the calling ofthis witness on the ground that his evidence would be irrelevant andinadmissible. The question that arises for determination is whether a partyis entitled to object to a witness being called on the basis that the saidwitness would give irrelevant and inadmissible evidence. Admittedly thesaid witness was included in the list of witnesses in terms of section 121of the Civil Procedure Code. A witness can be called to give evidence if hisname has been included in such list. A party cannot object to such awitness being called, merely on the ground that the witness will giveirrelevant and inadmissible evidence. The Court cannot, even with theconsent of parties depart from the provisions of law, as to how evidenceshould be given by a witness. A party can only object to a witness givinginadmissible and/or irrelevant evidence. It is for the Judge to decide whetherthat evidence is inadmissible or irrelevant.
The relevant Dortion of the imDuaned order marked “Y2” reads as follows :
It follows that the order made by the learned Judge was correct inallowing the plaintiff to call that witness as his name had been included inthe list of witnesses filed in Court in terms of section 121 of the CivilProcedure Code. However, at the time of making this application theexamination and re-examination of that witness had been concluded. Ifthe evidence given by the witness is inadmissible, that matter can betaken up in the main appeal.
For these reasons, we are of the view that this is not a fit case to grantleave to appeal. Accordingly, the application for leave to appeal is dismissedwith costs fixed at Rs. 10,000.
SOMAWANSA, J.—I agree.
Application dismissed.