Sri Lanka Law Reports
 1 Sri L.R.
COURT OF APPEAL .
DISSANAYAKE, J. ANDSOMAWANSA, J.
CA NO. 601/93 (F)
DC KURUNEGALA NO. 2668/LOCTOBER 23, 2001
Civil Procedure Code, sections 84, 164 and 165 – Ex parte order – Power vestedwith a judge to examine a witness – Demeanour of a witness varies when beingquestioned by court.
The District Court refused to vacate the ex parte Order.
Section 164 of the Civil Procedure Code provides that the court mayquestion a witness at any time and by section 165 a Judge is vestedwith a power to put questions to a witness in order to discover or to obtainproper proof of relevant facts.
The court must not question the witness in the spirit of beating him downor encouraging him to give an answer.
Per Somawans8, J.
“One must not forget the fact that even witnesses who are able to standtheir ground in the face of the severest cross-examination at the hands ofthe opposing Counsel are in view of the deference with which they treat theCourt inclined to treat with greatest regard suggestions when they come fromcourt and are couched in compelling language and it is a rare witness whowill steadily maintain his version in the face of such questioning by Court."
A Judge who observes the demeanour of the witness while they areexamined by counsel has from his detached position a much more favourableopportunity of forming a just appreciation than a Judge who himselfconducts the examination.
Sisilinnorta v. Balasuriya (Somawansa, J.)
The line of questioning by the Judge had been in the spirit of beatingthe witness down or encouraging the witness to give answers acceptingthe position put to the witness – it appears that the intention of the trialJudge had been not to ascertain the truth of the matter but to obtaincontradictions which he did. In the circumstances the conclusions arrivedat by the trial Judge are untenable.
APPEAL from the judgment of the District Court of Kurunegala.
Cases referred to :
Grand Central Rubber Estates Ltd. v. Rompi Singho – 48 NLR 525.
Yuill v. Yuill – 1944 – 29 CLW 102.
P. P. Gunasena for defendant-appellant.
Jacob Joseph for plaintiff-respondent.
Cur. adv. vult.
November 28, 2001SOMAWANSA, J.
This is an appeal preferred against the order made by the District 1Judge of Kurunegala dated 31. 03. 1993 in case No. 2668/L refusingto vacate an ex parte order entered in the case.
On an examination of the case record it appears that in viewof an application by the defendant-appellant to have the ex partedecree set aside on the basis that she was ill and was not in a positionto be present in court on the trial date, an inquiry was held andat the inquiry the defendant-appellant as well as the HomeopathicDoctor who treated her had given evidence. The evidence revealsthat before the trial date the defendant-appellant took treatment for 10Rheumatic Arthritis, a medical certificate and prescription issued bythe Homeopathic Doctor was produced marked P1 and P2. Thesedocuments have not been challenged at all by the plaintiff-respondent
Sri Lanka Law Reports
 1 Sri L.R.
at the inquiry. However, after the re-examination of the defendant-appellant was concluded the learned District Judge on his own hasquestioned the defendant-respondent at length and has come to theconclusion that the defendant-appellant contradicted herself andtherefore the doubt that had arisen with regard to the credibility ofthe evidence given by the Homeopathic Doctor was confirmed by thedefendant-appellant's contradictory evidence. The procedure adopted 20by the learned District judge is certainly not in keeping with theprinciples laid down in decided cases.
A Judge is certainly vested with wide powers to question a witness.
Section 164 of the Civil Procedure Code provide that the courtmay question a witness at any time as it may consider conduciveto the attainment of truth and justice and again by section 165 ofthe Evidence Ordinance a Judge is vested with power to put questionsto a witness in order to discover or to obtain proper proof of relevantfacts. While the widest powers in regard to examination of witnessare undoubtedly conferred on the court by section 165 of the Evidence 30Ordinance and section 164 of the Civil Procedure Code, these powersare not without certain limitations. Discussing the aspect of powervested with a Judge to examine a witness, Monir in his book onEvidence, 4th edition vol. II, p. 949 says : One of the well-recognisedlimitations of the powers of the court under section 165 of the EvidenceOrdinance is that the court must not question the witness in the spiritof beating him down or encouraging him to give an answer. One mustalso not forget the fact that even witnesses who are able to standtheir ground in the face of the severest cross-examination at the handsof opposing counsel are in view of the deference with which they treat 40the court inclined to treat with greatest regard suggestions when theycome from court and are couched in compelling language and it isa rare witness who will steadily maintain his version in the face ofsuch questioning by court. In the case of Grand Central RubberEstates Ltd. v. Rompi Singhom :
Sisilinnona v. Batasuriya (Somawansa, J.)
Where a trial Judge himself examined witnesses at somelength after re-examination and then rejected their evidence on theground of contradictions.
It was held, that in the circumstances it was possible to attachweight to the views of the Judge as to their credibility.
In Yuill v. Yuill® it was observed that “A judge who observes the sodemeanour of the witnesses while they are being examined by counselhas from his detached position a much more favourable opportunityof forming a just appreciation than a Judge who himself conducts theexamination. If he takes the latter course he, so to speak, descendsinto the arena and is liable to have his vision clouded by the dustof the conflict. Unconsciously, he deprives himself of the advantageof calm and dispassionate observation. It is further to be remarkedas everyone who had experience of these matters knows that thedemeanour of witness is apt to vary when he is being questionedby the Judge particularly when the Judge's examination is, as it was soin the present case, prolonged and covers practically the whole ofthe crucial matters which are in issue".
On an examination of the line of questions put to the defendant-appellant by the learned District Judge it appears that his intentionhad been not to ascertain the truth of the matter but to obtaincontradictions which he did. It would be improper and unfair for awitness who is 65 years of age and is unable to give specific datesas to her date of birth, date of trial and the date on which she obtainedthe medical certificate, etc., both on her examination in chief as wellas in cross-examination to be subjected to further examination by 70the learned District Judge on the same matters after the re-examinationof the witness was concluded. The line of questioning adopted bythe learned District Judge clearly shows that the court was suggestingto the defendant-appellant that as she failed to appear in court onthe trial date she subsequently obtained a medical certificate to showthat she was ill on the trial date and the learned District Judge was
Sri Lanka Law Reports
 1 Sri L.R.
certainly successful as she ultimately accepted this position. It is clearthat this line of questioning had been in the spirit of beating herdown or encouraging her to give answers accepting the position putto her. One should also not forget the fact Homeopathic Doctors 80do exist and though some may be bogus practitioners with noregistrations, patients do go to them for treatment.
In the light of the above reasoning and in view of the principlelaid down in the case of Grand Central Rubber Estates Ltd. v. Rompisingho referred to above, I am of the view that the conclusion arrivedat by the learned District Judge is untenable.
Order of the learned District Judge dated 31. 03. 1993 refusingto vacate the ex parte order is set aside and the learned District Judgeis directed to hear and determine the case in accordance with theprovisions of the Civil Procedure Code.90
Appeal is allowed with costs.
N. E. DISSANAYAKE, J. – I agree.