Sri Lanka Law Reports
 3 Sri LR.
PURE BEVERAGES LTD.,
COURT OF APPEAL.
U. DEZ. GUNAWARDENA, J„
C A NO. 675/97
D.C. COLOMBO 16384/MR
Civil Procedure Code Section 147 – Issues of Law and Fact – In whatcircumstances should the court try Issues of Law first?
The plaintiff-respondent filed action on 24.5.1995 praying for judgment in a sumof Rs. 300,000/- being damages that he had suffered on account of illnesscaused to him by the trauma that he suffered in consequence of the consumptionof the contents of a Coco-Cola Bottle that allegedly contained parts of adecomposed worm. As stated in the plaint the consumption was on 12.6.84 -however one of the issues (3) raised by the plaintiff without objection was thatconsumption was on 12.6,94.
The District Court rejected the application of the defendant-petitioner to try issue(9) – is the alleged cause of action ex facie prescribed – first.
As to whether the incident or the facts constituting the cause of action aroseon 12.6.1984 or 12.6.1994 is a proposition of fact upon which the parties are atvariance on (he issues that have been settled and accepted by Court.
If an issue of law arises in relation to a fact or factual position in regard to whichparties are at variance that issue cannot and ought not to be tried first as apreliminary issue of law.
The plaintiff respondent by rasing issue (3) on the footing that the relevantdate was 12.6.1994 and not 12.6.1984 (date set out in the plaint) must clearly betaken to have abandoned the date given in the plaint and the defendant-petitionernot objecting to such a departure or abandonment must be deemed to haveclearly acquiesced on the plaintiff raising the issue giving a new date.
If there was no such acquiescence the defendant-petitioner ought to havesignified or made Ns objections known.
Silence on the part of the defendant-petitioner when there was a duty to objectmust be taken to mean not only that the defendant-petitioner did in fact consentto the issue being rased on the basis of 12.6.94 but also the defendant did soconsent because no prejudice was occasioned to him thereby.
Pure Beverages Ltd, v. Shartil Fernando (U. de Z. Gunawardena, 1)203
Par Gunawardena, J.
‘It also needs to be stressed that in a trial of an action the question as to howor in what manner the issues have to be dealt with or tried is primarily matter bestleft to the discretion of the trial Judge, and a Court exercising appellate orrevisionary powers ought to be slow to interfere with that discretion exceptperhaps, in a case where it is patent or obvious that the discretion has beenexercised by the trial Judge not according to reason but according to caprice.’
APPLICATION in Revision from the Order of the District Court of Colombo.
Cases referred to:
Porotis v. Sawara- 1913 2 Bal. Notes 15.
Soysa v. Van Langenberg- 1913 4 Bal Notes 6
In the matter of the Estate and effects of Don Cornells Warnasuriya.-2NLR 144
Attorney-General v. Smith-8 NLR 229.
Bank of Ceylon v. Chelliah Pillai – 64 NLR 25.
Dharmadasa v. Gunawardena-2 CLW 385.
Silva v. Obeysekera – 24 NLR 97.
Dharmadasa v. Gunawardena – 12 Times of Ceylon Law Reports 5.
S. A. Parathalingam P.C. with Kuwera de Zoysa for the petitioner.
Srinath Perera P.C. with P. B. Herath. Damayanthi Fernando and Prasanna deSoysa for plaintiff-respondent.
Cur. adv. vult.
U. DE Z. GUNAWARDENA, J.
This is an application in revision in respect of an order dated13.08.1997 whereby the learned Additional District Judge hadrefused an application made by the defendant-petitioner in terms ofsection 147 of the Civil Procedure Code that issue No. 9 which was inthe following terms be tried first. Is the alleged cause of action ofthe plaintiff ex facie prescribed?
When issues both of law and fact arise in an action, section 147 ofthe Civil Procedure Code enables or empowers the court to try theissues of law first, if the court is of opinion that the whole case maybe disposed of on the issues of law only.
Sri Lanka Law Reports
11997} 3 Sri L.R.
The learned Additional District Judge had by the aforesaid orderdecided that all the issues in the case would be tried together. Thebackground facts relevant to this application are as follows: Theplaintiff-respondent filed this action on 24.05.1995 praying forjudgment in a sum of Rs. 300,000/- being the damages that he hadsuffered on account of the illness caused to him by the trauma thathe suffered in consequence of the consumption of the contents of acoca-cola (Soft-drink) bottle that allegedly contained parts of adecomposed worm.
It is be observed that if the date of the accrual of the cause ofaction which was the consumption of the contents of the said coca-cola bottle was 12.06.1984, as stated in the plaint, the action wouldfor certain be time-barred and the defendant in his answer had, infact, pleaded so. But strange as it may seem, one of the issues whichwas numbered 03, raised by the plaintiff at the trial (and that toowithout objection) was as follows: (03) Did the plaintiff on or about12.06.1994 open a sealed coca-cola bottle of the capacity of 01 litreand consume a part of the contents (soft drink) thereof which issuewas clearly framed on the basis that the consumption of the contentsof the bottle (in which a decomposed parts of a worm were allegedlyfound) occurred on 12.06.1994 in which case no question ofprescription can possibly arise – the action having being instituted on24.05.1995. But stranger still was the fact that the defendant-petitioner’s counsel had not raised any objection to the above issueNo. 3 raised by the plaintiff being rested on the factual position thatthe contents of the bottle in question was consumed in 12.6.1994which was 10 years later than the year referred to or stated in theplaint.
In the circumstances of this case it would be injudicious to directthe learned Additional District Judge to try the above issue No: 9(raising the question of prescription) first, or as a preliminary issue forin the generality of cases an issue can be tried in limine, that is, as apreliminary issue, only if that issue is an issue of law and the factualposition, from which that issue of law emanates is common-ground. Ifan issue of law arises in relation to a fact or factual position in regardto which parties are at variance that issue cannot and ought not to betried first, as a preliminary issue of law. In this case as to whether the
Pure Beverages Ltd., v. Shanil Fernando (U. de Z. Gunawardena, J.)205
incident or the facts constituting the cause of action arose on12.06.84 or a decade later is a proposition of fact upon which theparties are at variance, be it noted, on the issues that have beensettled and accepted by the learned trial Judge. In this state ofthings, the Court, as a preliminary to deciding whether or not theaction is prescribed, has to reach a finding in regard to a questioninvolving the fact or concerned with the fact viz. whether theconsumption of the coca-cola bottle allegedly containing parts of aworm took place on 12.6.1994 as is the position adopted in issueNo. 3 raised by the plaintiff or whether that occurrence was on12.06.1984 which was obviously the date relied upon by thedefendant-petitioner in the issue No: 9 raised by him, although thedate is not mentioned specifically as he ought to have done. Themanner in which the issue No: 9 had been formulated is far fromsatisfactory for it is vague and as pointed out above, too, reads thus:Is the alleged cause of action of the plaintiff prescribed ex-facie?
The question is ex-facie what? It would have conduced to clarity ifit had been said ex-facie the plaint without leaving anything tosurmise. There is no gainsaying that this case had been confusedthrough clumsy handling at the incipient stage. For instance, in theplaint at paragraphs 10-12 the damages that the plaintiff-respondentsuffered had been stated as Rs. 300,000/- whereas in the prayer theamount claimed by way of damages had been stated asRs. 3,000,000/-. Such mistakes cannot be airily and flippantlyexplained away as typist's mistakes as had been done in this case,for the Attorney-at-law who filed the plaint and those responsible fordrafting it ought to have corrected such mistakes before the plaintwas filed in court. Everyone has suffered, in consequence, one wayor the other, except those who ought to be held responsible for suchlapses or careless slips.
When as in this case, as explained above, there is an issue of factto be decided before the issue of law can be dealt with all the issuesin the case should be tried together as had been held in followingcases reported in Poroiis v. Sawara01 and Soysa v. VanLangenberg™. it has been so held obviously because it would bemanifestly inconvenient to try that issue that is, the issue of law,separately and thus to proceed with the case piece by piece at atime.
Sri Lenka Law Reports
11997} 3 Sri LR.
It goes without saying that the ultimate decision in a case dependson the answers to the issues given by the court and it is well knownas had been held in several decided cases that the case must betried upon issues upon which the right decision appears to the courtto depend and in this case, on the issues raised and what is moreaccepted by the court, as at present, the parties, as pointed outabove, disagree sharply and acutely with respect to the said relevantdates. THE PLAINTIFF-RESPONDENT BY RAISING ISSUE NO. 3 ONTHE FOOTING THAT THE RELEVANT DATE WAS 12.06.1994 ANDNOT 12.06.1984 (WHICH LATTER DATE WAS THE DATE SET OUT INTHE PLAINT) MUST CLEARLY BE TAKEN TO HAVE ABANDONEDTHE DATE GIVEN IN THE PLAINT AND THE DEFENDANT-PETITIONER IN ADVISEDLY NOT OBJECTING TO SUCH ADEPARTURE OR ABANDONMENT MUST BE DEEMED TO HAVECLEARLY ACQUIESCED IN THE PLAINTIFF RAISING THE ISSUEGIVING A NEW DATE of Course, the formal practice supported byauthority is to amend the plaint thereafter, that is, after the issue isframed so as to make the pleadings square with the issues. But inthis instance, such a course or formality is rendered needless or evenotiose since the issue setting out a new date had been raised withthe acquiescence and knowledge of the defendant-petitioner. If therewas no such acquiescence the defendant-petitioner ought to havesignified or made his objection known. Silence on the part of thedefendant-petitioner when there was a duty to object if, in fact, thedefendant-petitioner was prejudiced as a result of a new date beingadopted in the issue, must be taken to mean not only that thedefendant-petitioner did, in fact, consent to the issue being raised onthe basis of 12.6.1994 but also that the defendant did so consentbecause no prejudice was occasioned to him thereby. Furthermore,the issues were raised in court in the presence of the defendant andhis pleaders who would have undoubtedly taken notice of the newdate of the incident relevant to the cause of action pleaded in theplaint.
There is a somewhat different view-point from which this questioncan be considered. In the matter of the Estate and effects of DonComelis Warnasuriya° it has been decided that it was competent tocourt to determine issues in a matter even when the proceedings
Pure Beverages Ltd., v. Shanil Fernando (U. de 2. Gunawardena, J.)207
were irregular when there is acquiescence on the part of parties.Even if the raising of an issue setting out a date different from thatstated in the plaint, without amending the plaint to make it squarewith the position outlined in the issue, were to be treated as anirregularity yet it was competent to the court to consider the issueinasmuch as the court had accepted all the issues without objection.Against that background all the issues, that had been raised at theoutset of the trial, including issue No:3 setting out a new datedifferent from that stated in plaint, must be treated as issues agreedupon by the parties who necessarily must be deemed to have invitedthe court to consider them. As explained above, upon issue No: 3 onthe one hand, which has been raised on the factual position that theconsumption of coca-cola took place on 12.06.1994, and issue No: 9on the other, which has been raised on the basis of the original dateset out in the plaint i.e. 12.06.1984, there is a clear dispute arising onthe facts, as between the two parties, upon which the court has toadjudicate as a condition precedent to answering the legal question(issue) whether or not the plaintiff's cause of action is prescribed.That being so, it is a great convenience or an advantage to try all theissues together.
it is to be observed that the framing of issues is not restricted bythe pleadings as was held in the following cases: Attorney-General v.Smith1*' and by the Privy Council in Bank of Ceylon v. Chelliah Pillai™,Dharmadasa v. Gunawardena™, Silva v. Obeysekeram, Dharmadasav. Gunawardena™. And subject, of course, to the over-riding andbasic principle that just as much as pleadings cannot be amendedconverting an action of one character into an action of another ofinconsistent character so also the issues cannot be raised setting upa case changing the essence or the substance of the case originallyset up in the plaint or the answer as the case may be or enlarging thescope of the action or the claim originally made by the party in hispleadings.
Virtually, the sole object of pleadings is to avoid prejudice throughcatching the party's adversary unprepared, so to say. But in this casein hand it cannot be supposed that the plaintiff-respondent in raisingan issue on the basis that the incident, relevant to the cause of
Sri Lanka Law Reports
 3 Sri L.R.
action, occurred on 12.06.1994 had caused any prejudice to thedefendant-petitioner by taking him (the defendant) by surprise:
for, had the defendant been so affected he (the defendant-petitioner) ought to have, as stated above, objected to the said issueNo. 3. But he had not done so. The fact that the defendant-petitionerrefrained from objecting to, issue No. 3 being raised in the manner inwhich it has been raised i.e. by stating a date different from thatstated in the plaint inferential^ proves that the defendant-petitionerwas not, in fact, prejudiced through being surprised by change offront in regard to the date of consumption of the contents of thebottle;
also, any prejudice that could have possibly arisen had beencleared away by the fact that after the said issues were raised theadduction of evidence had not commenced forthwith and there hadbeen an interval of nearly 10 months between the date i.e. 3.10.1996on which the issues were settled and accepted by the Court and thenext trial date i.e. 13.8.1997 on which latter date the evidence hadcommenced. And it was on the latter date that the counsel for thedefendant-petitioner had moved court to try issue No.: 9 first as apreliminary issue. In other words, the defendant-petitioner has hadmore than sufficient time to meet the new date outlined in issue No. 3that is, that the consumption of the contents of the coca-cola bottleoccurred on 12.6.1994 and not on 12.6.1984 as was originally statedin the plaint.
In this regard an overwhelmingly significant fact calls for remark. Itis this: the fact that the insertion of the new date i.e. 12.6.94 in theissue No. 3 in place of that stated in the plaint i.e. 12.6.1984 affectsneither the scope nor the character of the case or the cause ofaction enunciated in the plaint which continues to remain the samethe cause of action being the alleged finding or presence of the partsof a worm in a beverage bottle (coca-cola) – a part of the contents ofwhich the plaintiff-respondent claims to have consumed.
It is to be observed that the phraseology of section 147 of the CivilProcedure code itself vests a discretion in the trial court for thesection states that issues of law shall be tried first when “the Court isof opinion" that the case may be disposed of on issue of law only and
CA Pure Beverages Ltd., v. Shanll Fernando (U. de Z. Gunawardena, J.)209
postpone the settlement of issues of fact “if it thinks fit". Clearly, thematter is left very much in the discretion of the trial judge.
As a final note, it also needs to be stressed that in a trial of anaction, the question as to how or in what manner the issues have tobe dealt with or tried is primarily a matter best left to the discretion ofthe trial judge. And a court exercising appellate or revisionary powersought to be slow to interfere with that discretion except, perhaps, in acase where it is patent or obvious that the discretion has beenexercised by the trial Judge not according to reason but according tocaprice. If one were to take a view of this matter shorn of alltechnicalities, it would be clear that the defendant-petitioner isseeking knowingly to exploit what, in fact, is a typographical slip, forhis own ends, that is, to set up a plea of prescription. The defendant-petitioner, perhaps, would do well to remember that the law becauseof the necessary imperfections of its methods confers many rightsand allows many liberties which a just and honourable man will notclaim or exercise for all that is lawful is not honourable.
For the aforesaid reasons we do hereby refuse the application inrevision and affirm the order of the learned Additional District Judgedated 13.08.1997.
YAPA, J. -1 agree.
PURE BEVERAGES LTD., v. SHANIL FERNANDO