005-NLR-NLR-V-39-RUTHIRA-REDDIAR-v.-SUBBA-REDDIAR.pdf
14Rutftira Reddiar v. 5ubba Reddiar.
1937Present: Moseley J. and Fernando A.J.
RUTHIRA REDDIAR v. SUBBA REDDIAR.
263—D. C. Colombo, 258.’
Bias—Advocate acting as Judge—Subsequent appearance as Counsel—Ko
Ajnpropri ety—W aiver.
An advocate as acting District Judge made an order in this actiongiving -the defendants leave to appear and defend. Subsequently heappeared as Counsel for the defendant. At a later stage of the action theadvocate realizing that he had made an order in the case brought it tothe notice of the Court. The Court directed the advocate to proceed ascounsel.
Held, that there was no possibility of bias at the time that the advocateacted as judge as he had not then been retained as counsel and that therehad been no transgression of the rule that justice should manifestly beseen to be done.
Dyson v. Kanagammah (31 N. L. R. 473) referred to ; King v. SussexJustices (I#. R. 1924, 1 K. B. 256) distinguished.
APPEAL. from a judgment of the District Judge of Colombo.
Rajapakse (with him Jayawardene), for plaintiff, appellant.
C. Nagalingam, for defendant, respondent.
Cur. adv. vult.
MOSELEY J.—Ruthira Reddiar v. Subba Reddiar.
13
February 1, 1937. Moseley J.—
This is a suit by the plaintiff on a promissory note given him by the twodefendants. The defendants raised a number of defences impugningthe validity of the note. On most of the issues raised at the trial thelearned Judge found in favour of the plaintiff, but he held on issues 10and 11 that the plaintiff was a money lender and had not kept books asrequired by the Money Lending Ordinance and therefore dismissed hisaction.
Two grounds of appeal have been urged before us. The first is that theadvocate for the defence, Mr. S. C. Swan, had previously acted as DistrictJudge and in his capacity as such had made an interlocutory order in thisvery action giving the defendants leave to defend.
It is not suggested that at the time of making the order Mr. Swan hadany interest in the action and it was only after the hearing had been inprogress for some time that he appeared in the absence of anotheradvocate, and it was he who, realizing at a later stage that he had madethe order referred to, informed the Court accordingly.
The learned Judge requested Mr. Swan to proceed and any oppositionthere may have been on the part of the plaintiff was withdrawn.
The point, I think it may safely be said, was waived and that mayaccount for the reluctance felt by Counsel for the appellant in bringingthe matter to our notice.
Mr. Rajapakse relied upon an unreported judgment of Dalton J. inS. C. No. 63, C. R. Colombo, No. 40,396the facts of which in all materialpoints are on all fours with those now before us. Dalton J. viewed thematter as a very grave irregularity which must vitiate the proceedings.He referred to what he described as a similar kind of case which camebefore A Divisional Court in England, viz., the King v. Sussex Justices’.In that case the Justices while considering their decision were attendedby the Justices’ clerk who happened to be a member of a firm of Solicitorswho were acting against the accused in a civil action for damages arisingout of the same circumstances. It was asserted that the Justices, inconvicting the accused, arrived at their decision without consulting theclerk who, in fact, scrupulously refrained from referring to the case.Hewart L.C.J., in the course of his judgment, said : —
“ The question, therefore, is not whether in this case the deputy clerkmade any observation or offered any criticism which he might notproperly have made or offered ; the question is whether he was sorelated to the case in its civil aspect, as to be unfit to act as clerk to theJustices in the criminal matter. The answer to that question dependsnot upon what actually was done but upon what might appear to bedone. Nothing is to be done which creates even a suspicion that therehas been an improper interference with the course of justice.”
The conviction was quashed. It will be observed that in that case theclerk, at the time when he was in a position to influence the justices, wasalready an interested party. In the case before us the position is entirely 1
1 S.’C. Minulee, February 17, 1930.
L. R. (7924) 1 K- B. 2S6,
16
Edmund v. Kandana Police.
different. At the time when Mr. Swan sat as District Judge he had nointerest whatever in either of the parties to the suit, and it is difficult toconceive that it could occur to any one that an impropriety had been ormight have been committed.
The crux of the matter is surely the possibility of bias on the part of theJudge when the case came before him. Here that possibility did notexist.
We have also been referred to the case of Dyson v. Kanagammah*. Inthat case Jayewardene A.J. cited with apparent approval the judgmentof Dalton J., but the learned Acting Judge was evidently under somemisconception as to the facts as he described the case as one “ where anadvocate who appeared for one of the parties sat as Judge later andmade certain orders ”. Had that been the case there could hardly be agraver irregularity.
As, however, the facts are on an entirely different footing, I do not thinkthere has been a transgression of the rule, if I may so term it, that justiceshould manifestly be seen to be done.
In my view, therefore, there is no substance in that ground of appeal.
I would add that in the case of The King v. Sussex Justices’, HewartL.C.J. indicated that, had there been a waiver he would have affirmed theconviction. In this case, therefore, even if I had not come to the con-clusion which I have, it would appear that any impropriety has beencured by waiver.
The second ground of appeal is that the Judge was wrong in holding thatthe plaintiff was a money lender. Counsel for the appellant contendedthat the number of loans granted was small and that the borrowersbelonged to a restricted class. It does not seem to me that either of thesecircumstances is necessarily relevant, nor does the fact that the appellantwas a dairyman negative the possibility of his also being a money lender.
In my opinion, there is evidence upon which the learned Judge couldfind that the appellant was in fact a money lender.
I would, therefore, dismiss the appeal with costs.
Fernando A.J.—I agree.
Appeal dismissed.