049-NLR-NLR-V-50-SAMMY-SINGHO-Appellant-and-HENRY-SILVA-Respondent.pdf
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NAGAXJNGrAM J.—Sammy Singho v. Henry Silva
1948Present: Nagalingam J.SAMMY SINGHO, Appellant, and HENRY SILVA, RespondentS. C. 141—G. R. Balapitiya, 24,580
Postponement—Absence of material rvitness—Summons served—Court shouldallow postponement.
Where a material witness on whom summons has been served is absent,the Court should allow a postponement.
Appeal from a judgment of the Commissioner of Requests,Balapitiya.
A. C. Nadarajah, for plaintiff, appellant.
P. J. Kurukulasuriya, with Naina Marikar, for defendants,respondents.
October 5, 1948. Nagalingam J.—
After framing the issues in this case, the Counsel appearing for theplaintiff applied for a postponement on the ground, inter alia, that one ofthe material witnesses, namely, the headman, to prove prescriptivepossession, was absent. The Counsel for the defendants objected to that.Thereupon the learned Commissioner disallowed the application for post-ponement. It is not easy to see the basis for the refusal. It is true thatthe defendants did not deny possession, but the plaintiff was out to proveprescriptive possession. He could not do that without calling evidence.If, according to the plaintiff, the headman was a material witness to proveprescriptive possession, the learned Commissioner should have allowedthe postponement as the headman had been duly summoned. Therewere also other grounds raised for the postponement. I do not thinkit necessary to consider them in view of the conclusion I have reachedon the first ground. I would, therefore, set aside the judgment of thelearned Commissioner dismissing the plaintiff’s action, and send thecase back for trial on the issues framed. The plaintiff was entirely toblame for the situation in which he found himself. He will bear thecosts of trial in the Court below. He will be entitled to the costs ofappeal.
Appeal allowed.