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SUPRAMANI AYER et al. v. CHANGARAPILLAI et al.D. C., Jaffna, 24,688.
Under section 147 of the Civil Procedure Code the Judge haspower, when an issue of law arises in a case, and it appears that the'case can be disposed of on that issue only, to try that issue first,postponing the settlement of the issues of fact until he has disposedof the issue of law.
Per Bonser, C.J.—In the appointment of assessors to assist theJudge in the trial of a case the parties should not be asked tonominate any, but they should be selected by the Judge on hisown responsibility, due weight being given to any objections thatmay be made by either of the parties to any assessor on the groundof interest or bias or otherwise.
HE facts of the case sufficiently appear in the judgment ofBonsee, C.J.
Rdmanathan, S.-O., and Domhorat, for first defendant, appel-lant.
Wendt and Sampayo, for plaintiff, respondent.
10th March, 1896. ‘Bonsee, C.J.-2-
This is an appeal from a decision of the District Judge of Jaffna.On the day fixed for the hearing the parties agreed that thefirst issue in this case was, whether the plaint disclosed any causeof action ; that is, assuming that all the facts were proved, whetherthey constituted any cause of action. This issue was equivalentto what was formerly known as demurrer, and was an issue of law.
. Under section 147 of the Civil Procedure Code the Judge haspower, when an issue of law arises in a case, and it appears thatthe case can .be disposed: of on that issue of law .only,. totry;thatissue of law first, postponing the settlement of the issues of factuntil he has disposed of the issue of law. The object of thatprovision is obvious. If the issue of law decided one way willfinally dispose of the action, it is a saving of expense to the partiesan<J it is a saving of time to the Court to postpone dealing withthe issues of fact until it is ascertained whether they really ariseor not.
In this case the Judge~£5ted'under that section 147, and hedecided that the objection raised by the defendant .was not a goodone, and that the plaint disclosed a good cause of action. Hethen postponed the settlement of the issues of fact and the hearing
of those issues until the 21st of this month.
The defendant has appealed against that decision.
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HON3KB, C. J.
Mr. Wendt, who appeared for the plaintiff, contended' that noappeal lay, but we are of opinion that in a case like this, where thedecision on the point of law goes to the whole root of the'action,an appeal does lie, and that the objections which were forciblyurged by Mr. Wendt do not apply, or are at all events counter-balanced by superior advantages.
An interesting discussion arose on the general question of appealsfrom orders made by the Court in the course of an action.We do not propose to lay down any general rule in respect of suchappeals : we only decide that an appeal lies in this case.
I notice in this case that the District Judge desired the assistanceof assessors. That was a praiseworthy desire. But I observe thatthe District Judge has chosen the three assessors in this way : hehas asked counsel on either side to nominate one, and he hasappointed a third to act with them. It appears to me that this isnot the proper way to nominate assessors. If assessors are nomi-nated by the parties, there is very great danger that they willconsider themselves to be bound to support the cause of those whonominate them. That is found to be the case where arbitratorsare appointed with an umpire ; the two arbitrators act as advocatesfor the parties. That is' not the object of the appointment ofassessors. Their duties are analogous to those of jurymen, and theJudge should select them on his own responsibility, listening ofcourse and giving due weight to any objections that may be madeby either of the parties to any*assessor on the’ ground of interest ‘or bias or otherwise.
I hold that when a Judge is of opinion that a case may be disposedof on an issue of law that goes to the root of the action, that issueshould first be tried, and that an appeal is competent againstthe decision on that issue, and that the trial of the remainingissues should be delayed until the judgment in appeal.
SUPRAMANI ATER et al. v. CHANGARAPILLAI et al