Siriwardhana v Dissanayake and Others
DISSANAYAKE AND OTHERSCOURT OF APPEAL
AMARATUNGA, J. AND
D.C. ANURADHAPURA 14389/RE.
AUGUST 8, 2004
Civil Procedure Code, sections 121(2) and 175(1) – Document not listed –
Applicability of section 175( 1) – Whose burden to satisfy court of the existence
of special circumstances?
In terms of section 121(2) a party is required to file a list ofwitnesses and documents fifteen days before the date fixed fortrial.
The proviso to section 175(1) empowers court to use it’sdiscretion in special circumstances in the interest of justice topermit a document to be produced which is not listed.
In the case of a document not listed in terms of section 121 (2)the burden is on the party failing to list that document to satisfycourt of the existence of special circumstances to permit adocument not listed to be produced.
APPLICATION for leave to appeal from an order of the District Court of
Cases referred to:
Girantha v Maria – 50 NLR 519
Abdul Munafv Mohamed Yusuf 1997 1 – Sri LR 373 at 378
Asilin Nona v Wilbert Silva 1997 1 – Sri LR 176C. Ratnayake for defendant-petitioner.
C.E.de Silva for substituted plaintiff-respondent.
Sri Lanka Law Reports
 3 Sri LR
October 22, 2004.
WIMALACHANDRA, J.The defendant-petitioner filed this application for leave to 01appeal against the order dated 17.02.2004 made by the learnedDistrict Judge Anuradhapura, refusing to permit a document tobe produced, as the particular document was not listed in terms ofsection 121(2) of the Civil Procedure Code.
The facts relevant to this application are, briefly, as follows:
The plaintiff instituted the action bearing No. 14389/RE in theDistrict Court of Anuradhapura seeking to eject the defendant-petitioner from the premises No. 9/38 Kurunegala-AnuradhapuraRoad, Thalawa. The original plaintiff, Kapuru Banda Dissanayake,died on 28.06.1995. His widow and children were substituted as the 10substituted-plaintiffs. The trial commenced on 26.9.2002 byrecording admissions and framing of issues by the parties. Thesubstituted-plaintiffs’ case commenced on 13.01.2003. Thedefendant-petitioner’s case commenced on 27.10.2003. From theaffidavit filed by the 2nd substituted-plaintiff, it appears that thesubstituted-plaintiff’s case was closed on 18.7.2003. Thedefendant-petitioner failed to file the proceedings of 18.07.2003and disclose to Court that the substituted-plaintiffs’ case closed on
On 17.02.2004 whilst giving evidence, the defendant-petitioner sought to produce a document by giving a marking “D4”. 20The substituted-plaintiffs’ counsel objected to the said documentbeing produced on the ground that it was not listed in terms of theprovisions of section 121(2) of the Civil Procedure Code and thatthe said document was listed after the case of the substituted-plaintiffs’ was closed. The learned District Judge upheld theobjection raised by the substituted-plaintiffs and did not allow thedefendant to produce the said document by his order dated
It is against this order the defendant has filed thisapplication for leave to appeal.
In terms of section 121 (2) of the Civil Procedure Code, a party 30to an action is required to file a list of witnesses and documentsfifteen days before the date fixed for trial, after notice to theopposite party.
Siriwardhana v Dissanayake and Others(Wimalachandra, J.)
The defendant-petitioner’s additional list of witnesses anddocuments, which includes the document sought to be produced,was dated 02.10.2003. Accordingly, the said document sought tobe marked at the trial had been listed after the case of thesubstituted-plaintiffs’ case had been closed. It is to be noted thatthe defendant-petitioner has failed to file the proceedings of
may be deliberately, on which date the plaintiffs closed 41their case and also the defendant-petitioner not file the copies ofthe journal entries of the original case record of the District Court.
In terms of section 175(1)of the Civil Procedure Code, a partyis not entitled to produce a document which has not been listed interms of section 121(2) of the Civil Procedure Code. This provisionrequires the list of documents and list of witnesses to be filed notless than 15 days before the date fixed for trial. The proviso tosection 175(1) empowers the Court to use its discretion in specialcircumstances where such course is rendered necessary, in theinterest of justice, to permit a document to be produced which is not solisted in compliance with section 121 (2) of the Code. The defendantin this case did not list the document he sought to produce at thetrial in terms of section 121(2) of the Code. Upon a perusal of theimpugned order, it is to be observed that the defendant’s counselhad not placed before the learned District Judge any specialcircumstances, to exercise his discretion in the interest of justice, topermit the said document, which had not been listed in compliancewith section 121(2) of the Code to be produced. Moreover, noexplanation had been given by the defendant for the delay in filingthe list of witnesses and documents after the close of the plaintiffs’ 60
case. In these circumstances it would cause prejudice to theplaintiffs-respondents if the said document is permitted to beproduced.
The defendant-petitioner cannot rely on the case of Girantha vMaria0’, as explained by Ismail, J., in the case of AbdulMunafv
Mohamed Yusuf2. He said at 378;
‘The judgment and the observations of Gratian, J.cannot help the defendant-petitioner in this case as thecourt was there placing an interpretation on therepealed section 121 of the Civil Procedure Code
Sri Lanka Law Reports
 3 Sri L.R
which did not then specially require the filing of a list ofwitnesses and documents 15 days before the datefixed for trial”
In the case of Asilin Nona v Wilbert Silva ® Chief Justice,
G.P.S. de Silva made the following observation:
“The 1st proviso to section 175(1) confers on theCourt a discretion to permit a witness not so listed interms of section 121(2) to be called “if specialcircumstances appears to it to render such a courseadvisable in the interest of justice.” The burden of sosatisfying the court as to the existence of specialcircumstances is on the party seeking to call suchwitnesses”.
Similarly, in the case of a document not listed in terms ofsection 121(2), the burden is on the party failing to list thatdocument to satisfy court of the existence of special circumstancesto permit a document not listed to be produced.
In the instant case before us, the counsel for the defendanthas not established any special circumstances as contemplated bythe 1st proviso to section 175(1) of the Civil Procedure Code. go
In this application, the defendant-petitioner has challenged theorder made by the learned Judge on 17.02.2004. We are also of theview that we should not waste our time on submissions made by thecounsel for the defendant-petitioner on extraneous matters notrelevant to the subject matter of this application, which is theimpugned order made by the learned Judge on 17.02.2004.
In these circumstances we see no reason to interfere with thesaid order made by the learned District Judge on 17.2.2004.
For these reasons, the leave to appeal application is dismissedwith costs fixed at Rs. 10,000/-.100
AMARATUNGA, J. – I agree.
SIRIWARDENA v. DISSANAYAKE AND OTHERS