Ratnayake and Another v. Karunawathie
RATNAYAKE AND ANOTHER
COURT OF APPEAL
H. A. G. DE SILVA. AND ABEYWARDENA. J.
A. 307/77 F
C. COLOMBO CASE NO. 1/955/MJULY 07. 1983.
Delict — Negligence — Prescription — Affidavit evidence of witness incontested trial — Sections 151. 166. 167. 179 and 180 of the Civil ProcedureCode.
In a running-down case, the accident and negligence and that the plaintiff wasinjured were admitted. The only question was damages. The plaintiff called thedoctor and thereafter informed Court that only the plaintiff's evidence remainedto be led and this would be done by means of an affidavit. Counsel for thedefendant had no objection but requested that he be given an opportunity tocross-examine the plaintiff. The judge allowed this and gave a date forproduction of the affidavit. The affidavit was filed and the plaintiff wascross-examined.
Section 151 of the Civil Procedure Code enacts that after starting his case theparty shall produce his evidence, calling his witness and by questions elicitingfrom each the relevant and material facts to which such witness can speak of hisown observation. Under section 167 the evidence of the witness must be givenorally, as prescribed, in open Court in the presence and under the personaldirection and superintendence of the judge. Under section 166 the Court mayfor grave cause, to be recorded by it at the time, permit a departure from thecourse of trial prescribed in sections 146 to 165.
Under section 1 79 the Court may at any time for sufficient reasons order thatany particular fact or facts may be proved by affidavit instead of viva vocetestimony. Under the proviso to this section when either party, bona fide desiresthe production of a witness before the court for examination viva voce and suchwitness can be so produced an order shall not be made authorising theevidence of such witness to be given otherwise than viva voce. Section 180enacts that if the order has been made for proof of facts by affidavit, the Courtmay nevertheless at the instance of either party, order the attendance of thedeclarant or deponent at the hearing of the action for viva voce examination, ifhe is in Ceylon and can be produced.
Sri Lanka Law Reports
 2 Sri L. R.
Thus where after an order for the affidavit to be admitted has been made thenecessity arises at a later stage for cross-examination of the declarant and anapplication is made in that behalf by the opposing party, the Court isempowered to permit such cross-examination even where it has initially madean order permitting the affidavit to be led under section 179.
It is not in every instance that a Court is permitted to depart from theprovisions contained in sections 151 and 167. It must be for sufficient reasonsto be recorded. There must be grave cause and this must be recorded.
The fact that the other side consents does not relieve the court from the dutyof satisfying itself that there is sufficient reason for it to so depart from theprocedure laid down.
The affidavit of the plaintiff must be ruled out despite the other side notobjecting to it.
Cases referred to:
Vinayak Pandurangrao v. ShoshadasacharyaAIR 1945 Bombay 60
Mohamed Faus and another v. Satha Umma and Another 58 CLW 46N. S. A. Goonetilleke for defendants-appellants.
Ranjith Abeysuriya for plaintiff-respondent.
Cur. adv. vult
September 09. 1983H. A. G. DE SILVA, J.
The plaintiff instituted, this action against the defendantsclaiming from them jointly and severally a sum of Rs. 51,500/-comprising of Rs. 50,000/- as general damages and specialdamages by way of loss of income, medical expenses and otherconsequential damages, in a sum of Rs. 1.500/-. The learnedDistrict Judge awarded a sum of Rs. 65,000/- to the plaintiff asdamages. It is from this order that the defendants have appealed.
The plaintiff in her plaint averred that on or about 31st October1 974 at about 1 1.30 a.m. at Maligawatte whilst she was walkingon the left hand side of the road when one faces Maradana.
Ratnayake and Another v. Karunawathie (H. A G. de Silva, J.j
Motor lorry No. 24 Sri 96 driven by the 2nd defendant knockedher down causing her severe injuries and pain of body and mind.She further averred that she was knocked down by the saidmotor lorry due to the negligence of the 2nd defendant. Shestated that she was 21 years of age at that time.
By reason of the said accident caused by the negligence of the2nd defendant, the plaintiff averred that she had sustained graveinjuries including head injuries. She had been renderedunconscious and had to be hospitalised and treated forconcussional brain injury and injury to the ear. and scalplaceration on the right side of the head. In consequence of thesaid injuries, she stated that she had suffered and continued tosuffer pain of mind, body discomfort, loss of general health andamenities, of life. Consequently she had to give up her trainingresulting in loss of career and earning capacity.
She also averred that the 1 st defendant was the owner of thesaid motor lorry and the 2nd defendant its driver, who was anemployee or agent of the 1 st defendant and drove the said motorlorry in the course of and within the scope of his employmentunder the 1st defendant, within the limits of his authority underthe 1st defendant or with the express or implied permission ofthe 1 st defendant.
She further averred that the 2nd defendant was charged in theMagistrate's Court of Narahenpitiya in case No. 1 9856/B and on22.8.75 he pleaded guilty and was convicted on his own plea.
The defendants in their answer admitted the fact of theaccident and that it was due to the negligence of the 2nddefendant. The main defence taken up by them was that theplaintiff's action was prescribed in law.
At the trial the following admissions were recorded:—
That lorry No. 24 Sri 96 is owned by the 1 st defendant.
That at the time the accident occurred it was drivennegligently by the 2nd defendant.
Sri Lanka Law Reports
11983] 2 Sri L R.
That as a result of the accident injuries were caused tothe plaintiff.
That at the time of the accident the 2nd defendant was inthe employment of the 1 st defendant.
The case went to trial on one issue viz: as a result of theadmitted facts to what sum is the plaintiff entitled in damages?
The plaintiff called Dr. Sarathchandra Abeysuriya. the NeuroSurgeon of the General Hospital. Colombo, to speak to theinjuries she had been treated for at the General Hospital.Colombo, and the fact that she was suffering from Neuralgia as aresult of the injuries caused to her. Thereafter the Counsel for theplaintiff informed Court that the only other evidence that wouldbe led on behalf of the plaintiff would be her evidence and thather evidence would be led by means of an affidavit. Counsel forthe defendants had no objection to this course of action but herequested that he be given an opportunity to cross-examine her.The learned trial Judge allowed this and gave a date for theproduction of the affidavit. An affidavit dated 13th May 1977appears to have been filed on that day and on 15th August1 977, the plaintiff was cross-examined by the defence Counsel.
At the hearing of this appeal, learned Counsel for thedefendants-appellants submitted that:—
there was no provision to act on affidavit evidence in acontested case and that consent given to the leading ofaffidavit evidence does not bind the defendant and hencethat the evidence contained in the affidavit must go out ofthe case in its entirety,'
the learned trial Judge's order does not state the basis ofcomputation of the damages awarded, and
though special damages have been asked for in the plaint,there was no evidence of special damages. The capacity
Rainayake and Another v. Karunawathie (H. A G. de Silva. J.)
to earn Rs. 500/- per month as stated in para 10 of theplaintiffs affidavit was not a statement of fact but ofbelief.
Learned Counsel for the plaintiff-respondent in reply submittedthat:—
the evidence of Dr. Abeysuriya disclosed that the plaintiffhad been hospitalised for one week and that she hadattended the out-patient's clinic for 1 'A years. Theevidence of the Doctor and of the plaintiff as regards theinjuries and consequential disabilities were the same.
The defendants had not cross-examined the plaintiff onpara 10 of her affidavit, i.e. as regards her earningcapacity and therefore those facts as stated by her mustbe regarded as admitted. Section 58 of the EvidenceOrdinance was a complete answer to the submission thatthere was no evidence as regards the earning capacity ofthe plaintiff.
It was not permissible for the appellants to now canvassthe facts in the affidavit which were not the subject-matter of cross-examination.
The damages awarded were reasonable.
Learned Counsel for the appellants submitted that at a trialevidence has to be led by a party in conformity with Section 1 51of the Civil Procedure Code.
Section 1 51 enacts that " after stating his case in person, orby his Proctor or Counsel, the same party shall produce hisevidence, calling his witnesses and by questions, eliciting fromeach of them the relevant and material facts to which suchwitness can speak of his own observation."
Sri Lanka Law Reports
11983] 2 Sri L. R.
Section 167 states that" the Court may for grave cause to berecorded by it at the time, permit a departure from the course oftrial prescribed in the foregoing rules ", i.e. rules contained insections 146-165.
Section 167 enacts that " the evidence of the witnesses shallbe given orally, as above prescribed, in open Court in thepresenae and under the personal direction and superintendenceof the Judge."
Mr. Abeysuriya for the respondent contended that theadmission of the evidence of the plaintiff contained in heraffidavit was warranted by the provisions of Section 179. ThisSection states that " the Court may, at any time, for sufficientreasons, order that any particular fact or facts may be proved byaffidavit . . . instead of by the testimony of witnesses given vivavoce before it, or that the affidavit, … of any witness may beread at the hearing of the action on such conditions as the Courtshall think reasonable—
Provided that when it appears to the Court that either partybona fide desires the production of a witness before the Courtfor cross-examination viva voce, and that such witness can be soproduced, an order shall not be made authorising the evidenceof such witness to be given otherwise than viva voce."
Section 1 80 enacts that " in the event of an order having beenmade for the proof of facts by affidavit, . . . the Court may,nevertheless, at the instance of either party order the attendanceof the declarant or deponent at the hearing of the action for vivavoce examination, if he is in Ceylon and can be produced."
Mr. Gunatilaka for the appellants contends that affidavits whichare admitted under Section 179 can never be the subject ofcross-examination and that the stage contemplated in Section180 is subsequent to the Section 1 79 stage.
I think there is much in what Mr. Gunatilaka states. If at thestage that an affidavit is sought to be produced under Section 179,
Ratnayake and Another v. Karunawathie (H. A. G. de Silva. J.)
the opposing party desires that the witness be tendered forcross-examination, as has happened in this case, the very termsof the proviso to that Section precludes the Court frompermitting the affidavit to be read in evidence. When one readsSection 180 with Section 179 and its proviso, the situationcontemplated in Section 180 is where after an order for theaffidavit to be admitted has been made, the necessity arises at alater stage for cross-examination of the declarant and anapplication is made in that behalf by the opposing party, theCourt is empowered to permit such cross-examination evenwhere it has initially made an order permitting the affidavit to beled under Section 1 79. To give a different interpretation, that isto say, that if a request for cross-examination is made at the timepermission is sought for affidavit evidence to be led. the Courtcould permit the admission of the affidavit under Section 179and at the same time permit cross-examination under Section180 would in my opinion be contradictory to the terms of theproviso to Section 1 79.
A further matter that appears to me to be relevant is that, it isnot in every instance that a Court is permitted to depart fromprovisions such as contained in Sections 1 51 and 1 67 but only" for sufficient reasons ", i.e. there must be a reason which theCourt considers sufficient to depart from the normal procedure.Section 166 states that " the Court may for grave cause, to berecorded by it at the time, permit a departure from the course oftrial prescribed in the foregoing rule", i.e. Sections 146 and165. In this case no reason at all appears to have been given orrecorded for the affidavit of the plaintiff to be led instead of herviva voce evidence. The fact that the other side consents to sucha procedure does not obviate the Court from satisfying itself thatthere is sufficient reason for it to so depart from the procedurelaid down in the preceding Sections of that Chapter.
In the case of Vinayak Pandurangrao v. Shoshadasacharya (1) —it was held that " under the provisions of 0.19. R.l. no doubt it isopen to the Court to allow a fact to be proved by affidavit, butwhere either party bona fide desires the production of the
Sri Lanka Law Reports
2 Sri L. R.
witness for cross-examination and such witness can beproduced, it is not open to the Judge to allow the matter to beproved by affidavit It may be mentioned that 0.19 R.l. of theIndian Civil Procedure Code is analogous to Section 1 79 of ourCivil Procedure Code.
In Mohamed Fa us and another v. Satha Umma and another (2)it was held inter alia that inadmissible evidence does not becomelegal evidence by the mere fact that it passed into the record ofthe proceedings unnoticed by the Judge or without objectionbeing taken by the opposite side.
A fortiori, the admission of inadmissible evidence even with theconsent of the opposing party would not make it legal evidence.
I am therefore of the view, that a consideration of the relevantSections of the Civil Procedure Code indicates that theadmission of the evidence of the plaintiff contained in heraffidavit is not warranted by law and the entire affidavit must beruled out. This connotes that all facts stated therein which havenot been admitted by the defendants disappear from the casewhich would mean that all the evidence of her injuries, earningcapacity and the grounds for her claim for damages, other thanthose elicited from her in cross-examination and those spoken toby Dr. Abeysuriya would not be available. In effect the factsaverred in paragraphs 6 to 12 of the affidavit would disappearand with them, the basis for a proper computation of the imagesprayed for by the plaintiff can no longer stand. I therefore setaside the order of the learned District Judge and send the caseback for a re-trial, subject to the admissions already recorded, onthe issue of the quantum of damages to which the plaintiff wouldbe entitled. The defendants-appellants will be entitled to thecosts of this appeal.
ABEYWARDENA, J. — I agree.
Case sent back for re-trial.
RATNAYAKE AND ANOTHER v. KARUNAWATHIE