044-SLLR-SLLR-1998-1-SHEILA-SENEVIRATNE-v.-SHEREEN-DHARMARATNE.pdf
CA
Sheila Seneviralne v. Shereen Dharmaratne
383
SHEILA SENEVIRATNEv.
SHEREEN DHARMARATNE(Case No. 2)
COURT OF APPEALWIGNESWARAN, J.,
WEERASURIYA, J.
CALA NO. 231/97DC MT. LAVINIA 2051/MFEBRUARY 2. 1998.
Civil Procedure Code S. 104, 104(2), 109, 109 (2) – Consequence of not complyingwith the provisions — wilful and contumacious conduct.
The District Court refused the request made by the plaintiff-petitioner unders. 109 of the Civil Procedue Code to have the defence of the defendant-respondentstruck out. It was urged that provisions of s. 109 CPC were strict and haveto be duly complied with and that the conduct of the defendant-respondentamounted to wilful and contumacious conduct.
Held:
The words ‘shall and be liable* in s. 109 CPC appear to reserve discretionto Court. If the legislature intended such strict compliance the section wouldhave read 'he shall if a plaintiff have his action dismissed or if a defendanthave his defence struck out etc.,'
Per Wigneswaran, J.
'Where there are two possibilities one incriminating a person while the othergives a reasonable explanation for the same conduct of such person theadvantage of the doubt arising due to uncertainty in culpability must be givento such person and the reasonably explanatory interpretation should bepreferred to the incriminating interpretation.'
Failure to allow inspection of certain documents by the plaintiff-petitionerdid not amount to wilful and contumacious conduct on the part of thedefendant-respondent.
APPLICATION for Leave to Appeal from an order of the District Court of Colombo.Cases referred to:
Namasivayam Chetty v. Ragsoobhoy – 46 NLR 12.
Karuppan Chetty v. Narayan Chetty – 2 CLR 173.
Amin Jrai and others v. Hadji Omar – 71 NLR 115.
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Sri Lanka Law Reports
(1998) 1 Sri LR.
M. Appu Singho v. Don Jussey Appuhamy – 4 Leader Law Reports 815 Appeal Court Reports 135.
Hyder Ali v. Rajadurai and others 1987 – 1 Sri LR 138.
Nandawathie de Silva v. Yasawathie de Silva – 58 NLR 97.
Ms. Maureen Seneviratne P.C. with V. K. Choksy for plaintiff-petitioner.
R. E. Thambiratnam with Herman J. C. Perera for defendant-respondent.
Cur. adv. vult.
February 09, 1998WIGNESWARAN, J.
The matter in issue in this leave to appeal application is whether theorder made by the Additional District Judge, Mt. Lavinia, dated10.11.1997 refusing the request made by the plaintiff under section109 of the Civil Procedure Code to have the defence of the defendantstruck out, was proper.
Ms. Maureen Seneviratne, President's Counsel, argued that theprovisions of section 109 of the Civil Procedure Code were strict andtherefore have to be duly complied with. She said that the conductof the defendant in this cas^ arfiounted to wilful and contumaciousconduct. She said that there were three stages with regard toinspection of documents. Firstly, under section 104 a party obtainsan order of Court for notice to issue on the adverse party to producedocuments for inspection. Secondly, if such party served with noticeunder section 104 omits to arrange for inspection, then under section106 the first party could apply to Court for an order of inspection.Lastly, if despite an order of inspection the adverse party fails tocomply with such order, the adverse party, if he is the defendant, wouldhave his defence struck out and be placed in the same position asif he had not appeared and answered.
She pointed out that the first two stages had passed in the instantcase and since the defendant did not comply with the court's order,steps under the third stage were taken. She argued that the courtwas duty bound to strike off the defence. She also referred to theprovisions under section 109 (2) which gave her client the right totake steps for contempt of Court. She distinguished the cases reported
CA Sheila Seneviratne v. Shereen Dharmaratne (Wigneswaran, J.)385
in Namasivayam Chetty v. Ragsoobhoy(1,t Karuppan Chetty v. NarayanChetty® and Amin Jrai and others v. Hadji Omai® referred to by theAdditional District Judge, Mt. Lavinia and said the facts of the instantcase were different. She alleged that the answer scripts of the plaintiffwith regard to the first examination conducted were deliberately keptaway from being perused by the plaintiff since if produced forinspection they would have exposed the defendant.
This was a case where the plaintiff alleged that the defendant,who ran an Institute for Training Montessori methods of Teaching,held an examination and made out that the plaintiff was entitled toa Diploma in Montessori methods of Teaching but handed over a blankcertificate at the awarding ceremony and thereafter failed to give adiploma certificate saying that the plaintiff had failed her practicalexamination. The defendant alleged that the issue of Diploma Cer-tificate at the Awarding Ceremony was a sham exercise undertakenfor the benefit of the plaintiff who had failed her examination and othersof similar predicament but that a second examination was held at whichtoo the plaintiff had failed. The answer scripts relating to plaintiffsabove-said two examinations are the documents in issue.
Mr. Thambiratnam on behalf of the defendant-respondent arguedthat discretion with regard to matters of this nature have always beenreposited in the Court and that there was no question of strictcompliance with regard to the provisions of section 109 of the CivilProcedure Code.
He stated that the perception of the defendant in this case wasthat the documents claimed by the plaintiff were not liable to beinspected by the plaintiff since they related only to the defendant'sown title or defence in terms of section 104 (2) of the Civil ProcedureCode. But when the Court thought otherwise and ordered inspectionthe defendant was prepared to allow inspection and did in fact allowinspection of most of the documents claimed but found the answerscripts of the first examination misplaced, with the registered attorneyand the defendant believing the documents to be in each other'scustody. He pointed out that nearly 17 years had passed betweenthe preparation of the answer in the case and the order for inspection.He said a genuine misplacement of a document should not be madeuse of to strike off the defence of the defendant. He also pointedout that to the extent of the non-availability of the document in questionthe case of the defendant has been weakened.
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Sri Lanka Law Reports
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He finally submitted that in terms of the decision in M. Appu Singhov. G. Don Jussey Appuham/** order under section 109 can only bejustified where there has been obstinacy or contumacy on the partof the person in default. In this case he said his client had allowedinspection of all documents except the ones which had been lost.Therefore, he said there was no obstinacy nor contumacy on the partof his client. He also referred to the Supreme Court decision in HyderAli v. Rajadurai and others® which held that an order made by DistrictCourt refusing to dismiss an action for failure to produce a document(sections 104 & 109 of the Civil Procedure Code) was not an ordermade in error. Drawing inspiration from Nandawathie de Silva v.Yasawathi de Silva® Mr. Thambiratnam said the Court in the presentcase had not given its reasons for disregarding the affidavit of theAttorney-at-Law wherein he stated that the relevant documents appliedfor, only supported the plaintiffs case.
Ms. Maureen Seneviratne in reply pointed out that the timing ofthe defence had to be considered. Even though the perception of thedefendant was that the plaintiff was not entitled to inspect the documentsin question the court thought otherwise and made order under section106 for inspection. It was only after such an order was made thatthe defendant took up the position that the document was misplaced.This ruse was adopted by the defendant only to avoid showing theplaintiff's answer scripts at the first examination, fearing exposure.Such a deliberate conduct on the part of the defendant if condonedwould give rise to parties slipping away from their obligations underan order made by Court in terms of section 106 of the Civil ProcedureCode.
She further pointed out that even as late as on 1.9.97 when theregistered Attorney-at-Law for the defendant filed his affidavit, hereferred to the plaintiffs answer scripts at paragraphs 3 (f) & 3 (g).At that stage he could have said that the documents were lost. Insteadonly after the order dated 8.10.97 made under section 109 of theCivil Procedure Code did the defendant come out with the excuseof the documents being lost. That is, when the fraud of the defendantwas about to be exposed she had adopted this ruse as a defence.The position of the defendant in her affidavit dated 27.10.97 that shefailed to trace the answer scripts was not consistent with the earlierconduct of the defendant and her registered Attorney-at-Law. Ms.Seneviratne further pointed out that this stratagem has been adopted
CA Sheila Seneviratne v. Shereen Dharmaratne (Wigneswaran, J.)387
in order to harass the plaintiff during her cross-examination and toavoid the defendant having to be embarrassed.
She finally quoted Black's Law Dictionary which defined "wilful" as"without legal justification" and/or ‘indifference to the naturalconsequences". Quoting Oxford Dictionary she defined "contumacious"as "obstinately resisting authority" and/or "wilfully being disobedientto the order of Court".
All these submissions would now be examined.
Section 109 of the Civil Procedure Code states as follows :
Y1) If any party fails to comply with any order under this chapterto answer interrogatories, or for discovery, production, or inspection,which has been duly served, he shall if a plaintiff, be liable to havehis action dismissed for want of prosecution, and if a defendant, tohave his defence, if any, struck out, and to be placed in the sameposition as if he had not appeared and answered.
And the party interrogating or seeking discovery, production, orinspection may apply to the court for an order to this effect, and thecourt may make such order accordingly.
Any party failing to comply with any order under this chapterto answer interrogatories or for discovery, production, or inspectionwhich has been served personally upon him, shall also be deemedguilty of the offence of contempt of court."
The words "shall" and "be liable" in the above-said section appearto reserve discretion in Court. It does not appear mandatory that thecourt should per force dismiss the plaintiffs action or strike a defend-ant's defence as soon as there is non-compliance with an order ofCourt under section 106. If the Legislature intended such strict com-pliance the section would have read, "he shall if a plaintiff have hisaction dismissed" or "if a defendant have his defence, if any, struckout, etc." The fact that the phrase "be liable" has been inserted showsthat Court has been vested with discretion in such matters.
Justice Keuneman in "Namasivayam Chetty v. Ragsoobhoy (supra)said "I may add that the District Judge appears to have been under
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Sri Lanka Law Reports
(1998) 1 Sri LR.
the impression that he had no discretion to grant any indulgence, ina case under section 109 when objection was taken to such indulgenceby the other side. This is certainly not the law. I would direct theattention of the Judge to Karuppen Chetty v. Narayan Chetty (supra)and Appu Singho v. Jusey Appuhamy (supra).
Thus it would be incorrect to argue that strict conformity with thepenal provisions of section 109 of the Civil Procedure code wasintended when an order made under section 106 was not compliedwith. In any event in this case there was part-compliance.
The next question that arises is whether the facts of this case show"wilful" and/or "contumacious" conduct on the part of the defendant.
The documents for which inspection was sought were:
Application produced to the defendant on 5.10.1979 by theplaintiff.
The answer scripts of the plaintiff produced in November1979 . . . (1st attempt).
Answer scripts . . . (2nd attempt).
Letter dated 22.10.79 sent to Padmini Wijewickrema.
(Vide P10 dated 29.9.97).
The documents which were permitted inspection by the registeredAttorney-at-Law for the defendant and of which photocopies werehanded over to the registered Attorney-at-Law for the plaintiff were:
Application tendered on 5.10.79 [(i) above]
Letter dated 22.10.79 [(iv) above]
Answer scripts (2nd attempt) [part of (iii) above]
Copy of letter sent to L. M. Wijesekea on 6.2.80(additional)
Copy of letter sent to L. M. Wijesekera on 28.4.80(additional)
CA Sheila Seneviratne v. Shereen Dharmaratne (Wigneswaran, J.)389
First attempt answer scripts and balance 2nd attempt answerscripts were not made available.
Ms. Maureen Seneviratne, tried to persuade us to come to theconclusion that there was something sinister in the defendant notmaking available the answer scripts. Since the defendant had earliermade out that the answer scripts need not be made available to theplaintiff, when Court had granted an order for inspection under section106, despite the defendant taking cover under section 104 (2), to avoidshowing the answer scripts, Ms. Seneviratne said, a ruse had beenresorted to by the defendant. Yet Mr. Thambiratnam pointed out thatthe defendant and her registered Attomey-at-Law could at worst befound fault with for negligence but not for wilful and/or contumaciousconduct.
Where there are two possibilities, one incriminating a person whilethe other gives a reasonable explanation for the same conduct ofsuch person, the advantage of the doubt arising due to uncertaintyin culpability must be given to such person and the reasonablyexplanatory interpretation should be preferred to the incriminatinginterpretation. The purpose of benefit of the doubt being given to anaccused in a criminal case is based on this principle.
When Ms. Seneviratne states that the registered Attorney-at-Lawfor the defendant in his affidavit prepared as late as 1.9.97, referredto the answer scripts at paragraphs 3 (f) & 3 (g), it must be notedthat the enumeration of the list in paragraphs 3 (a) to 3 (h) was onlyin relation to what had taken place on 23.10.1996. In any event todepose in his affidavit that he refused to produce documents' 3 (a)to 3 (/j), the registered Attorney-at-Law may not have found itnecessary to actually check whether the answer scripts were availableor not. He may have in the alternative taken it for granted that thedocuments were with the defendant and since the defendant was awayin England he may have prepared the affidavit without actually checkingwhether the answer scripts were with her.
The registered Attomey-at-Law and his client would no doubt havebeen aware that non-compliance with the order made under section106 of the Civil Procedure Code would debar them from producingthe said documents at the trial. In fact the learned Additional District
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(1998) 1 Sri LR.
Judge had referred to it in her order thus:8s®*a36o
a>®3 <3z§0SO ficasi eeJSsjca SgO siQ SoocdscJ ^ <g^8oBt
SS®0 q8Bc3isi s^ra. d <fgO 0® edSaxs eeafS® ®o 0{®-^S8t5o8c30^©Sotsf Gai SO SO eawtojia."
Clearly the learned Additional District Judge was of the view thatthe documents not shown to the plaintiff would not be allowed byCourt to be led in evidence by the defendant.
She was also of the view that even if the documents were to beproduced later, probably on the basis that the lost documents hadthen been retrieved, the production of the document would notprejudice the plaintiff. But this may have only been an obiterobservation. This Court is of opinion that the said document cannothereafter be produced by the defendant in this case even if retrieved.
As for the fear that the plaintiff would be cross-examinedunreasonably without her having recourse to the contents of theanswer scripts in advance, it must be noted that since the answersgiven by her in cross-examination cannot be contradicted through theanswer scripts, the fears expressed seem baseless. The plaintiff inthis case probably has to experience a lot less of the travails whichall plaintiffs have to undergo in Court in our adversarial system. Wehave no doubt that our original Court judges would under no circum-stances allow witnesses to be intimidated in Court.
We are therefore of opinion that there is no need for us to interferewith the reasonable order made by the Additional District Judge, MountLavinia, dated 10.11.1997 and therefore refuse to grant leave toappeal. We reiterate that the answer scripts not made available tothe plaintiff for examination under section 106 of the Civil ProcedureCode would not be allowed to be produced at the trial by thedefendant. We are not satisfied that the failure to allow inspectionof certain documents by the plaintiff amounted to wilful andcontumacious conduct on the part of the defendant.
Parties shall bear their own costs.
WEERASURIYA, J. – I agree.
Application dismissed.
Note by Editor.
The Supreme Court in SC SPLA No. 28/98 refused Special Leave on 31/3/1998.