013-NLR-NLR-V-18-SILVA-v.-KATTANDIYA.pdf
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Present: Pereira J.
mi
SILVA v. EATTANDIYA.230—G. B. Pasijala 3,095.
Evidence — Inability of plaintiff to understand English — Refusal ofwitness to give evidence in his own language—Court mag pastdecree against him—Civil Procedure Code, s. 240.
The refusalby a plaintiff to give evidence in aCourt of justice
except inalanguage in which the Courthavingheard him has
ruled heisnot sufficiently well versed toexpresshimself correctly
and intelligently is tantamount to refusal to give evidence at all,and in a case to which section 140 of the Civil Procedure Codeapplies, the Court . may, when the refusal is persisted in, pass adecree against him.
In thecase of the examination of aparty toa case under
section 146 or section 800 a of the Civil Procedure Code, he shouldbe sworn as a witness.
8t. 7. Jayewardene, for plaintiff, appellant.J. 8. Jayewardene, for respondent.
Out. adv. vult.
August 8, 1914. Pbrbtba J.—
In this case on- the day of trial the Commissioner made orderas follows: “ The plaintiff will give evidence before the issues areframed to enable the Court to frame issues and then the plaintiffwas sworn, and he gave evidence in English. In the course of the
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1914
Pebbzba J.
Silva r.Katinndiffft
evidence it appeared to the Commissioner that the plaintiff wasnot able either to understand questions put to him in-English, norwas he able" to express his ideas intelligently in that language; andthe Commissioner thereupon required the plaintiff to give evidencein Sinhalese, that being his own native tongue. The plaintiffrefused to do so, and the Commissioner thereupon dismissed hisclaim with costs. I presume that the. Commissioner acted undersection 140 of the Civil Procedure Code. Now, there can be nodoubt that the refusal by a person to give evidence in a court ofjustice except in a language in which the Court has ruled, afterhearing the person refusing, that he is not sufficiently well versedto express himself correctly and intelligently, is tantamount torefusal to give evidence at all, and in a case to which section 140applied an order like that made by the Commissioner would beappropriate. The question is whether that section applied to thepresent case. At the argument of the appeal I was very stronglyof opinion that neither section 809 Avnor section 146 of the CivilProcedure Code contemplated the examination of parties on oath.The provisions in these two sections for examination of parties werein ail probability repetitions in substance respectively of section 18of the repealed Ordinance No. 9 of 1859 and section 1, paragraph 8(see page 68), of the old Eules and Orders; and those provisions ofthe law were not certainly supposed to require that the examinationof parties provided for should be on oath. I find, however, tiiatcomparatively recent legislation has altered the situation. Undersection 6 of Ordinance No. 9 of 1895 all " witnesses ” are requiredto make oaths, and the word 44 witnesses ” has been defined in the-Ordinance to mean, inter alia, " all persons who may be lawfullyexamined or give or required to give evidence by or before anyCourt. M That being so, the order of the Commissioner appears tome to be right.
The appellant’s counsel, after communication with his proctor,undertakes that his client will now, in obedience to the Commis-sioner's ruling, give evidence in his native language, and, as anindulgence, craves that his client be allowed an opportunity to doso. I see no objection to this application being allowed, and Iremit the case to the Court below to enable the appellant to act interms of his counsel’s undertaking.^
If the appellant submit to the Court’s ruling and give evidencein Sinhalese, the order appealed from will be deemed to be vacated,and the case will be proceeded with. Otherwise, the order appealedfrom will' be deemed .to be hereby affirmed.
In either case the respondent will have his costs of appeal. Thecosts in the Court below will abide the event.
Sent back.