CANNON J.—Sadiriaa v. Abeyesinghe.
1946Present:Cannon and Canefeeratne JJ.
SADIRISA, Appellant, and ABEYESINGHE, Respondent.
351—D. C. Colombo, 2,075.
Evidence—Discovery of new evidence after hearing of case—Re-opening ofcase.
Where the plaintiff denied possession of certain doouments which thedefendant (appellant) alleged were relevant to his case and, after thehearing of the case, new evidence was discovered which indicated thatthe documents were in fact in the possession of the plaintiff—
Held, that, as the failure,to produce the new evidence earlier was notdue to the defendant’s negligence or default, the case should be re-openedso that the trial Judge might consider the new evidence and decide on itseffect and, if necessary, vary his order.
PPEAL from a judgment of the District Court of Colombo.
G. E. Chitty (with him M. D. H. Jayewardene), for the 2nd defendant,appellant.
B. Wikramanayake, for the plaintiff, respondent.
March 8, 1946. Cannon J.—
It was alleged by the 2nd defendant, who is the appellant, that twoplans, Nos. 169 and 170, referred to his case, but he said that he couldnot produce them because they were in the possession of the plaintiff,to whom they were handed some years ago when there was an amicablearrangement between the parties. The plaintiff denied possession ofthese plans. One Mr. Wijegoonowardana, who is a son-in-law of theplaintiff’s vendor, admitted at one stage of his evidence that the planswere in the plaintiff’s possession, but later said he was not certain aboutit. The clerk of one Mr. Jayasekere, a proctor, who was not representingeither of the parties, was called on this point by the appellant, but the
Karlhige&u Kur-ukkal v. Sarma.
District Judge was not satisfied with his evidence. In his judgmentthe District Judge remarks :—“ P. D. H. Wijegoonewardana, whosemother-in-law is the plaintiff’s predecessor-in-title, said in examination-in-chief that there were plans attached to the deeds and that when thedeed in plaintiff’s favour was executed, those plans were handed tohim. He later corrected himself and stated that he could not saywhether there were any old plans. Having considered the mattercarefully, I have come to the conclusion that his first answer was a bonafide mistake Affidavits are filed in this appeal by the proctor for the2nd defendant and Mr. Jayasekere, from which it appears that, sincethe hearing of this case, Mr. Jayasekere has discovered in his receipthooks an entry, signed by Mr. Wijegoonewardana above mentionedacknowledging receipt of the relevant plans from Mr. Jayasekere’soffice before action was brought, and we are asked to direct the DistrictJudge to re-open the case. Mr. Wikramanayake objects to this coursebecause the action was first brought as long ago as 1941, and he submitsthat the entry in the proctor’s office should have been discovered beforethe hearing. It is to be noted that Mr. Jayasekere was not the proctorof either of the contending parties, and the 2nd defendant did in factcall as a witness a clerk from his office. We do not think that anynegligence or default can be attributed to the appellant. Therefore thecase should be re-opened, and the order of the Court is that theDistrict Judge be asked to consider this new evidence and decideon its effect and, if necessary, vary his order.
The judgment is pro forma set aside for this purpose. Costs will becosts in the cause.
As so much time has elapsed since the case was instituted, we wouldrequest the District Judge to decide the matter at the earliest opportunity.
Ganekeratne J.—I agree.
Judgment pro forma set aside.