Sri Lanka Law Reports
 2 Sri L R
SAHUL HAMEED ABDUL MUNAF
v.MOHAMED LEBBE MOHAMED YUSUF AUAS AHAMEDMOHAMED YUSUF
SUPREME COURTG. P. S. DE SILVA, CJ.,
WADUGODAPITIYA, J. ANDBANDARANAYAKE, J.
S.C. APPEAL NO. 168/97CA (LA) NO. 291/96D.C. KANDY NO. 11820/PNOVEMBER 19 AND 20, 1998
Civil Procedure Code – Failure to file list of witnesses in time – Section 121 (2)and the first proviso and section 175 (1) of the Code.
Where the District Court upheld an objection taken by the plaintiff to the defendantcalling a material witness on the ground that the defendant had failed to filehis list of witnesses 15 days before the date fixed for trial as required by section121 (2) of the Civil Procedure Code –
The first proviso to section 175 (1) of the Civil Procedure Code vests the discretionin the trial judge to permit the witness to be called "if special circumstances appearto it to render such a course advisable in the interests of justice'. There wasa total lack of ‘special circumstances' postulated in the proviso to section 175(1) of the Civil Procedure Code. The trial judge was right in refusing to exercisehas discretion in favour of the defendant.
Cases refered to:
Girantha v. Maria 50 NLR 519 distinguished.
Kandiah v. Wiswanathan (1991) 1 SLR, 269 at 278.
APPEAL from the judgment of the Court of Appeal.
Faiz Musthapha, PC with Amarasiri Panditharatne and Ms. Faiza Musthapha-Markar for the defendant-appellant.
Shibly Aziz, PC with A. L M. Mohamad, Farook Thahir and Nazli Buhari for theplaintiff-respondent
Cur. adv. vult.
SC Sahul Hameed Abdul Munaf v. Mohamad Lebbe Mohamad Uysuf alias
Ahamed Mohamad Yusuf (G. P. S. Da Silva. CJ.)77
November 26, 1998.
P. S. DE SILVA, CJ.
This is a partition action. The plaintiff sought to partition the land andpremises bearing No. 45, King Street, Kandy. In his plaint he averredthat he and the defendant were co-owners, each entitled to a half-share of the corpus. The defendant, however, in his statement of claim,pleaded prescriptive title to the entirety of the corpus.
The trial commenced on 17.1.96. Admissions and points of contestwere recorded. After the evidence of the plaintiff was led, the casefor the plaintiff was closed, reading in evidence P1 to P6. On theapplication of the defendant, the case was postponed for 16. 02. 96,the reason being that the defendant had failed to bring to court certaindocuments. At this point it is relevant to note that the case had beenfixed for trial on three occasions prior to 17. 1. 96. The trial couldnot be resumed on 16. 2. 96 owing to the illness of the defendant.The trial was ultimately resumed on 27. 8. 96 when the defendantcalled his first witness, Manoon. After the evidence of Manoon wasconcluded further trial was postponed for 5th November, 1996, onceagain on the application of the defendant.
When the trial was resumed on 5th November, 1996, the defendantmoved to call witness Siddeek but the plaintiff objected to this witnessbeing called on the ground that the defendant's list of witnesses hadnot been filed at least 15 days before the date fixed for trial, (section121 (2) of the Civil Procedure Code). The objection taken before theDistrict Court was on the basis that the defendant's list of witnesseswas filed only on 10. 1. 96, the trial having commenced on17. 1. 96. The submission before the District Court was that thedefendant's list of witnesses was filed only 7 days before the dateof trial and this was clearly contrary to the provisions of section121 (2) of the Civil Procedure Code. This objection was upheld inthe District Court. The defendant's application to the Court of Appealfor "leave to appeal" against the order of the District Court wasrefused. Hence the present appeal by the defendant to this court.
Sri Lanka Law Reports
 2 Sri LR
The principal submission of Mr. Musthapha for the defendantappellant was that the trial judge has failed to address his mind tothe first proviso to section 175 (1) of the Civil Procedure Code.Section 175 (1) reads thus:
"175 (1) – No witness shall be called on behalf of any partyunless such witness shall have been included in the list of witnessespreviously filed in court by such party, as provided by section 121.
Provided, however, that the court may in its discretion, if specialcircumstances appear to it to render such a course advisable inthe interests of justice, permit a witness to be examined, althoughsuch witness may not have been included in such list aforesaid;
Provided also that any party to an action may be called as awitness without his name having been included in any such list."
Relying on the judgment of Gratiaen J. in Girantha v. Maria,mMr. Musthapha strongly urged before us that the sole object of filinga list of witnesses is to avoid "the element of surprise" and that thecourt should have permitted witness Siddeek to be called in theinterests of justice. It was counsel's submission before us that Siddeekwas a very material witness to establish the defendant'splea of prescriptive possession. It was also pointed out to us thatit was almost eleven months after the plaintiff had notice of thedefendant's list of witnesses, that the application was made to callwitness Siddeek.
The first proviso to section 175 (1) vests the discretion in the trialjudge to permit the witness to be called "if special circumstancesappear to it to render such a course advisable in the interests ofjustice". As submitted by Mr. Shibly Aziz for the plaintiff-respondent,the finding of the trial judge was that the counsel for the defendantwas unable to give any "acceptable" or "reasonable" explanation forthe admitted delay in filing the list of witnesses. Upon a scrutiny ofthe proceedings of 5th November, 1996, it is manifest that this finding
SC Sahul Hameed Abdul Munaf v. Mohamed Lebbe Mohamad Uysuf alias
Ahamed Mohamed Yusuf (G. P. S. Da Silva, CJ.)79
of the trial judge is correct. What is more, there was no indicationwhatever of the nature, content, and relevance of the evidence soughtto be led through witness Siddeek. This is a very significant fact whichclearly distinguishes the present case from Girantha v. Maria (supra).Literally there was nothing on record to show that Siddeek's evidencewas vital to the case for the defendant. There was a total lack ofmaterial to suggest any "special circumstances" postulated in theproviso to section 175 (1) of the Civil Procedure Code. I accordinglyhold that in the facts and circumstances of this case the trial judgewas plainly right in refusing to exercise his discretion in favour ofthe defendant.
For these reasons the appeal fails and is dismissed with costsfixed at Rs. 1,000.
Before I part with this judgment I would commend the observationsmade by Wijeyaratne J. in Kandiah v. Wiswanathart® : “It happensfrequently in District Court trials that material witnesses and documentshave not been listed as required by law. The failure to do so entailsconsiderable hardship, delay and expense to parties and contributesto laws delays. It should be stressed that a special responsibility iscast on attorneys-at-law, who should endeavour to obtain fullinstructions, from parties in time to enable them to list all materialwitnesses and documents as required by law".
WADUGODAPITIYA, J. – I agree.BANDAR AN AYAKE, J. – I agree.