Salih v. Hemawathie
HEMAWATHIECOURT OF APPEALAMARATUNGA, J., ANDBALAPTABENDI, J.
CALA 403/2005 (LG).
DC COLOMBO 9234 / AE.
Civil Procedure Code, sections 30, 121 (2) and 175 (2) – Amendment Act, No.20 of 1977 – Listing of documents – Time period-Additional list – A,cceptance-Applicablity of section 175(2) – Factors to be considered.
The petitioner sought to list the documents in question in the second additionallist filed just fourteen days before the third date fixed for trial. This was objectedto by the defendant and the trial judge upheld the objection.
Section 121 (2) requires the parties to file their list of witnesses anddocuments not less than fifteen days before the date fixed for trial.
According to my view this section requires the parties to file their list ofwitnesses and documents before the first date fixed for trial and if weare to interpret the words date fixed for trial to mean the date on whichthe trial is first taken up, we have to read into the section words whichare not there and this is something we are not prepared (o do.Accordingly I hold that the document sought to be produced was notproperly listed.
Even if a document is not properly listed under section 175(2) suchdocument can be produced with leave of court; however the sectiondoes not specify in what circumstances a court should grant leave toproduce an unlisted document.
In the instant case the court has refused leave to produce thedocument on the ground that the plaintiff has not given a sufficientreason for her failure to list the document earlier.
Sri Lanka Law Reports
 2 Sri L.R
APPLICATION for leave to appeal from an order of the District Court ofColombo, with leave being granted.
Cases referred to:
Kandiahv Visvanathan- 1991 1 SRI L. R. 269.
S. Mithrakrishnan with U. D. Mowjooth for appellant.
W. Dayaratne, for respondent.
Cur. adv. vult
November 11, 2002.
GAMINI AMARATUNGA, JThiscourt having considered the plaintiff-petitioner’s application 01for leave to appeal has granted leave to appeal on 27/3/2002. Afterleave was granted both parties agreed to file written submissionsand moved this court to decide the appeal after considering thewritten submissions.
This appeal is against an order made by the learned AdditionalDistrict Judge disallowing the plaintiff-appellant to mark a documentin evidence. The appellant has filed this case to eject the defendantwho is her tenant on the basis that she has sublet the premises inquestion. On the day fixed for trial i.e. 8/6/2001 it was postponed 10for 22/8/2001. On that date it was postponed for 23/10/2001 On8/10/2001,2nd additional list of witnesses and documents was filedon behalf of the plaintiff-appellant. On 23/10/2001 the trial wastaken up and the plaintiff commenced to give her evidence. In thecourse of her evidence she sought to mark an extract – a certifiedcopy – of the Trade License Register kept at the Colombo MunicipalCouncil. This document marked and produced as X1 with theappellant’s leave to appeal application shows that at the premisesrelevant to the action two other persons have registered abusiness. Thus this document is a vital item of evidence to 20substantiate the plaintiff-appellant's claim that the defendant hassublet the premises.
Salih v. Herhawathie(Amaratunaa. J.)
The learned counsel for the defendant objected to theproduction of the document on the basis that since the documenthas not been listed in accordance with the provisions ofsection121(2) of the Civil Procedure Code, it is an unlisteddocument in the eyes of the. law and for that reason it cannot beproduced.
There is no dispute that the list.by which the plaintiff sought to
list the document in question is the 2nd additional list filed just 14days before the third date fixed for trial. On two days fixed for trial,the trial was not taken up. According to section 121 (2) of the CivilProcedure Code ‘Every party to an action shall, not less than fifteendays before the- date fixed for trial’ file a list of documents reliedupon by such party and to be produced at the trial. According to myview this section requires the parties to file their list of witnessesand documents before the first date fixed for trial and if we are tointerpret the words date fixed for trial to mean the date on which thetrial is first taken up, we have to read into the section words whichare not there and this is something we are not prepared to do.Accordingly I hold that the document sought to be produced wasnot properly listed.
Even if a document is not properly listed, under section 175 (2)of the Civil Procedure Code such document can be produced withleave of court. What are the considerations applicable to thegranting of leave to produce a document not listed ? The CivilProcedure Code of 1898 did not contain a provision similar tosection 175(2) of the present Civil Procedure Code and section175(2) had been introduced by section 30 of Act, No. 20 of 1977.Before this new subsection was introduced, section 175 merelycatered for the calling of a witness not listed in the list of witnesseswhen the court is of opinion that if special circumstances appear toit to render such a course advisable in the interests of justice. Whenthe amending Act introduced section 175(2) it provided for theproduction of a document with the leave of court. The new sectiondoes not specify in what circumstances a court should grant leaveto produce an unlisted document. In Kandiah v Visvanathan(1)Wijeratna, J. commenting on this said that considerations similar tothose applicable in allowing an unlisted witness to be called arerelevant in considering whether leave should be granted to produce
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 2 Sri L.R
an unlisted document. Having examined previous authorityWijeratna, J. set out those considerations as follows:
Where it is in the interests of justice to do so.
Where it is necessary for the ascertainment of truth.
Where there is no doubt about the authenticity of thedocument.
Where sufficient reasons are adduced for the failure to list adocument.
In this instant case the learned Judge has refused leave toproduce the document on the ground that the plaintiff has not given 70a sufficient reason for her failure to list the document earlier.According to the plaintiff’s own evidence she has made inquiries atColombo-Municipal Council about the person who was carrying ona business at the relevant premises only in June 2001. There is noevidence that upto that time she has made any effort to find out thisevidence which is very relevant and vital to her case. It is to benoted that this action has been instituted in September 2000. thefirst trial date was 8/6/2001. Even upto that date she has not madeany endeavour to secure this vital evidence. She has obtained thecertified copy only on 8/10/2001, i.e even after the 2nd trial date. It 80is stated in the petition that the plaintiff became aware of theexistence of this document only after 21/8/2001. If she had madeinquiries at the Colombo Municipal Council when she firstdiscovered that the defendant had sublet the premises she couldhave discovered the existence of this document. According to herevidence she first learnt about subletting in November 1999. But Inote that the plaint has been filed in September 1999. In view ofthis her evidence that she first learnt about subletting in November1999 cannot be true. In these circumstances I am of the view thatthe plaintiff has failed to give a satisfactory explanation for her 90'failure to list this document earlier. Accordingly the learned trialJudge’s decision not to grant leave to produce the document inquestion is correct.
Although this document is not admitted, it is still open to theplaintiff to prove the fact of subletting on other evidence. Thedocument in question is only one item of evidence relating to
Rathnayaka v. Sarath, Dovisional Secretary. Thihagoda
CA •and Others (Wiieratne. J)=95
subletting. Therefore I affirm the order of the learned District Judgeand dismiss this appeal with costs fixed at Rs. 5000/-
BALAPATABENDI, J. -1 agree.
SALIH v. HEMAWATHIE