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SAMARAWEEEA v. JAYAWARDANA.
D. C., Matara, 8,133.
Action for divorce—Vagueness of allegation of misconduct—Judgment of District
Judge founded on evidence heard by another District Judge—Irregularity
—Courts Ordinance, s. 89.
An allegation of misconduct, in an action for divorce, ought tospecify the date and place of the act complained of.
Though The Courts Ordinance, section 89, provides that in the case ofa removal of a judge, while the suit is pending, another judge may takeup the case and act on the evidence already recorded, yet such a courseshould not be followed except where such evidence is of a merely formalcharacter.
In a case where the decision depends altogether upon the credit to begiven to the plaintiff and his witnesses, it is not proper for a judge whohas not heard the plaintiff and his witnesses to decide on their veracityand trustworthiness, when he has the means in his power of judgingfor himself by calling and examining them.
HIS was an action for a divorce on the ground of adultery of
the first defendant (plaintiff's wife) with the seconddefendant. No specific act of adultery was charged, but the fol-lowing averment was made in the plaint:—“ Since the last few“ months the fifth defendant has been living in adultery with the“ second defendant, and she also threatens and abuses the plaintiff,“ and has often attempted to strike and injure him.” The firstdefendant pleaded that the plaint was insufficient and vague, in thatit did not state the date when, or place where, the alleged acts ofmisconduct were committed. She denied the general charge ofadultery alleged against her, and averred that plaintiff himselfwas living in adultery with a certain woman.
The case came on for hearing before Mr. G. Woodhouse, who,after recording evidence for the plaintiff, did not call upon thedefendants for the defence, as he thought that the evidenceadduced was too vague and indefinite to prove adultery. Hedismissed the plaintiff’s action.
On appeal, the Supreme Court was of opinion that the plaintiffhad made out a •primd facie case, and that the District Judgeought to have called on the defendants to lead evidence. TheirLordships sent the case back for further trial, with certain direc-tions as to the proof of marriage between the plaintiff and firstdefendant.
The further trial came on -before Mr. W. E. Thorpe, who.having heard two witnesses for the plaintiff and the first and
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second defendants, delivered judgment dismissing plaintiff’saction with costs.
Sampayo, for appellant.
Bawa, for respondent.
This is an action for a divorce, and I think there has been amiscarriage of justice. The plaintiff alleged the misconductcomplained of in this way:—“ That since the last few months the“ first defendant, who is the wife, has been living in adultery with“ the second defendant, and who also threatens and abuses the“ plaintiff and has often attempted to strike him.” That is theallegation of misconduct. The defendant took the reasonableobjection that this allegation was too vague. It seems to me thatthe District Judge ought to have given effect to that objection,and to have called upon the plaintiff to specify the particulars asto dates, &c., of the acts of misconduct on which he relied. Thiswas not done, and at the trial certain issues were framed. Thefirst issue is the only one which refers to the alleged adultery,and it is in these terms:—“ Whether the first defendant is livingin adultery with second defendant.” That certainly is a very■extraordinary issue, because it makes the right to a divorce1depend on the question whether the wife and the co-respondentwere living in adultery on the day of trial. However, the partieswent to trial on that issue, and after hearing the plaintiff and hiswitnesses the District Judge dismissed the action. The plaintiffappealed to this Court; and this Court being of opinion that aprima facie case had been made out, sent the case back to theDistrict Court to proceed with the trial. It is quite clear thatthe attention of this Court was not called to the issues; for ifit had been, I am sure the case would not have simply been sentback in the way it was.
When the case got back to the District Court another DistrictJudge was sitting. He, instead of hearing the plaintiff and hiswitnesses over again so that he might be able to form an opinionas to their veracity, took up the case where it had been left byhis predecessor and heard the defence, and then dismissed theaction. Now, in taking up the case and acting on the evidencealready recorded, the District Judge was within the powersconferred upon him by section 89 of The Courts Ordinance, whichexpressly provides that this course may be taken in the caseof the removal of a judge while the suit is pending; but thatought never to be done except in the case of merely formal
laOO. 'June 18.
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evidence. In a case such as this, where thei decision dependsaltogether upon the credit to be given to the plaintifi and hiswitnesses, it is preposterous for a judge who has not heard theplaintifi and his witnesses to decide on their veracity and trust-'worthiness, when he has the means in his power of judging forhimself by calling and examining them.
In my opinion the proceedings should be quashed. Theplaintiff should be required to deliver to the defendants a state-ment! of particulars within a fortnight of the record being receivedby the District Court. If he does not do this, the action will bedismissed. If he does do it, the trial should be had on the issuesraised .by these particulars. In a case like this I am of opinionthat the judge should avail himself of the assistance of assessors,'as provided by section 72 of The Courts Ordinance. The costs ofappeal will abide the result of the action.
I am of the same opinion. I cannot understand how theDistrict Judge could do justice in this case without hearing allthe witnesses, or how a proper decision could be come to uponthe issues which were framed.