093-NLR-NLR-V-18-THE-KING-v.-WIJETUNGA.pdf
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Present: Pereira J. and Ennis J.
THE KING a. WIJETUNGA.67—D. G. (Grim.) GhUawt 3,165.
Penal Code ss.190and 196—False avermentinaffidavit filed by judgment'
debtor in application to have order substituting plaintiff vacated—Is affidavit a declaration which a Court was “ bound or authorizedby lawtoreceive" t—yCivil Procedure Code,*.t.373 and 437—
Affidavit affirmed before a Justice of the Peace In a district in whichaffirmant did not reside.
A plaintiff assigned his interest to one 6. who got himself substi-tuted as plaintiff after due notice to the accused, who was Judgment-debtorin thecase.Thereafterthe accused filed anaffidavit,in which
he madethe false averment thathehad not been served
with notice, andmoved,by wayofsummary procedureunder
chapterXXXVoftheCivil ProcedureCode,that theorder of
substitutionbevacated. The accnsed wasprosecuted under sections
19$ and 190 of the Penal Code.
Held, that the affidavit was a declaration which the Court was“ bound or authorized by lawto receive,” and thattheaccused was
properly convicted under the said sections.
Section 373 of the Civil Procedure Code was intended to providefor applications to the Court generally, and not to “ every applicationto the Court of summary procedure.”
Pereira J.—Thewords ” withinthe local limits ofwhose
jurisdictionhe is at the timeresiding ” (in section137of the Civil
ProcedureCode) refer onlyto Commissioner,”therequirement
intendedbeingthatinthe case of aCommissioner toadminister
oathB, appointedbytheSupreme Courtundersection 20 of the
Courts Ordinance, he should at the time of administering the oathreferred toin section. 437 ofthe Code be residentwithin the local
limits ofthe jurisdiction ofthe Court in whichtheaffidavit is
intended to be used.
An affidavit sworn before a Justice of the Peace for the district ofNegombo ■ by a person not resident within the limits of the districtis not invalid by reason of section 437 of the Civil Procedure Code.
7J1 HE facts are set out iu the judgment.
A. Si. V. Jayewardene, for the accused, appellant.
Obeyesekere, C.C., for the Crown.
Cur. adv. vtdL
May 21, 1915. Pkrhiha J.—
In this case the accused has been convicted of having, in a decla-ration subscribed by him, which a court of justice was bound or
191$.
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authorized by law to receive, made a statement whichwas false,
jand which he knew or believed to be false, touching a point material
—r—to the object for which the declaration was made or used,an offence
*puftteh&ble under sections 196 and 190 of the Penal Code.
The accused was the judgment-debtor in case No. 4,564 of theDistrict Gourt of Chilaw, in which one Maritrida was plaintiff.Marikida assigned her interest in the case to Saparamadu, and thelatter had himself substituted as plaintiff in the case. This wasdone with notice to the accused. The return to the notice showedthat it had been duly served on the accused on November 28, 1918.On February 12, 1914, the accused moved to vacate the order ofsubstitution on the ground that he had no notice of the intendedapplication for it. His motion was supported by an affidavit datedJanuary 14, 1914, which is the declaration referred to above. Inthis affidavit he stated that lie had not- been served with the noticereferred to above on November 28, 1913, and this is the falsestatement referred to in the indictment. It may here be mentionedthat the accused instituted his proceedings to vacate the order ofsubstitution as a proceeding in summary procedure under chapterXXIV of the Civil Procedure Code.
Now. the first objection taken by the applicant's counsel is thatthe affidavit did not comply with the requirements of section 487of the Civil Procedure Code, and it was therefore not an affidavitwhich the District Court of Chilaw was bound or authorized by lawto receive. It is contended that under section 437 an affidavitcould only be sworn to before a Court or a Justice of the Peace or aCommissioner to administer oaths by a person who at the time ofthe swearing actually resides within the local limits of the juris-diction of such Court, Justice of the Peace, or Commissioner, butthat the affidavit in question was sworn to by the accused before aJustice of the Peace for the district of Negombo when at the timethe accused was not resident within the district. I cannot accedeto this contention. The words of the section are that the affidavitmay be sworn to “ by the person professing to take the statementembodied in the affidavit before any Court or Justice of the Peaceor Commissioner to administer oaths within the local limits of whosejurisdiction he is at the time residing.1 * 1 think that these lastwords—“ within the local limits of whose jurisdiction he is at thetime residing ”—refer only to “ Commissioner,'* the requirementintended being that in the case of a Commissioner to administeroaths, appointed by the Supreme Court under section 20 of theCourts Ordinance, he should at the time of administering the oathreferred to in section 487 of the Code be resident within the locallimits of the jurisdiction of the Court in which the affidavit is intsndedto be used. The concluding portion of section 437, in which thereis no reference to Commissioners, but only to the Court or a Justiceof the Peace, supports this view.
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The next and perhaps more important objection is that the DistrictJudge of Chilaw was not bound or authorized by law to receivean affidavit at all in tbe circumstances in which the affidavit inquestion was tendered to him.
The Court was bound by law to reoeive it if it can be shown thatthe accused was entitled to file it in Court* He in fact filed it withand in support of his application to vacate the order of substitutionreferred to above. Now, section 91 of the Civil Procedure Codelightly touches on the question as to how applications to the Courtshould be made, but fuller provision is made on the subject inchapter XXTV. Section 873 of that chapter speaks of “ every appli-cation to the Court, or action, of summary procedure,” but it hasbeen contended for the appellant that these words mean (1) everyapplication to the Court of summary procedure, arid (2) everyaction of summary procedure, and that summary procedure underthis chapter could be resorted to only when resort; to summaryprocedure is expressly permitted by the Code (see section 8). Butit may here be noted that section 8 refers only to “ actions of sum-mary procedure,” and not to ” applications of summary procedure.”However, the above contention is supported by the punctuation oithe clause cited above; but I think that the punctuation is a mereprinter's error, and that what was intended was to provide forapplications to the Court generally and for actions in summaryprocedure. Section 375 speaks of the application being institutedin the course of, or as incidental to, a pending action “ whether ofregular or summary procedure.1' In this view the accused was undersection 376 entitled to file his affidavit with his application in caseNo. 4,564 of the District Court of Chilaw. and the Court was hencebound or authorized by law to receive it.
On the facts of the case I am in entire agreement with the DistrictJudge in his finding that the statement made by the accused in hisaffidavit- that he had not been served with the notice of the applica-tion for substitution is false.
For these reasons I think that the appeal should be dismissed.
Enxis J.—
The accused-appellant has been charged and convicted undersections 190 and 196 of the Penal Code for making a false statementin mi affidavit used in the District Court of Chilaw on an applica-tion in a civil suit to set aside an order for substitution.
•
Section 190 prescribes the punishment for giving false evidencein a judicial proceeding, and section 196 prescribes punishment inthe same manner for a false statement made in any declaration madeor subscribed by any person which a court of justice or any publicservant or other person is hound or authorized to receive.
1915.
Fkrbou. J.
Th% Kirfr. Wijttomyi
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*915. The point reserved for the decision of two Judges is whether theCourt was bound or authorized to receive the affidavit which con* taihed the alleged false statement. The argument for the appellant
Tw$Zj« was as
Section 6 of the Civil Procedure Code enacts that every applica-tion for relief or remedy obtainable through the exercise of the Court'spower or authority constitutes an action; section 7 that theprocedure in an action may be either regular or summary; and section8 that every action shall be by regular procedure, unless the Codeespecially provides that it may be taken by summary procedure.Section 373 in Part II. of the Code, which is headed " Of SummaryProcedure/’ provides that “ every application to the Court, or action,of summary procedure *’ shall be by petition, &c., and section 376specially provides for the proof of facts by affidavit to the petition.Section 179 in chapter XIX., Part I., of the Code, headed respectivelyw Of the Trial of Actions in General/’ provides that the Court may<f at any time, for sufficient reason, order that any particular factor facts may be proved by affidavit while section 91 in the same-part enacts: —
Every application made to the Court in the course of the actionincidental thereto, and not a step in the regular procedure, shall bemade by motion by the applicant in person or his advocate orproctor, and a memorandum in writing of such motion shall be atthe same time delivered to the Court. In the Court of Bequests suchapplication may be made orally by tbe applicant in person andthen reduced into writing by the Court in accordance with therules of summary procedure hereinafter prescribed.
It is urged that sections 373 and 376 do not provide for the us&of affidavits with every application to the Court, but to “ everyapplication ofsummary ✓procedure.” The comma aftertheword
“ action ” insection378 supports this contention. Itwasnext
urged that as the Court makes special provision for certain applica-tions to be byway ofsummary procedure, e.g., sections306,524,
and 537, it isonly insuch cases that affidavits can befiledwith
the petition. Then, as to regular procedure; it was urged that section179 related to “ actions ” as distinct from applications incidentalto actions, for which latter a special provision is made in section91. I have set out above section 91 in full, because the crux ofthe argument is in the omission in that section to provide for theproof of fact by affidavit, and the wording of the section shows that adistinction is drawn between applications of summary procedure andother applications, the latter part having made special provision forapplications in the Courts of Bequests to follow the rule of summaryprocedure. It is urged that in the absence of any express provisionwith regard to affidavits, in an application such as that made bythe accused-appellant in this case, the Court could not supply theomission, and was not bound or authorized to receive an affidavit.
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and e accused could not be convicted under section 196 of the 1915.Pena* lode even if .the affidavit contained a false statement.Ennib J.
I at not in accord with the contention for the appellant. Section —-93 me es no provision for the hearing of applications u ider it—anomissici which it is conceded the Court can supply, li the Courtcan supply this omission, it must sko supply the procedure on thehead tg, ana procedure laid down in Part I. for actiors in generalwouU apply. i.e.f the Court could at any time order proof* of fact byaffidavit. As the affidavit in this case was read, it is to be presumedthe C <urt so ordered it, although it i? not so specially recorded. Ithas been the practice of the Court for years when hearing miscella-neous ippHcations to allow the prooc of faet by affidavit, and section4 of tie Code expressly enacts .thas “ in every case in which noprovision is made by .this Ordinance, the procedure and practicehither! > in force shall be followed, ” *c. I am, however, not preparedto accede to the contention that ttere is any omission in the Codein this respect. The Code defines an action as a proceeding for theprevention or redress of a wrong. It seems to me that an applica-tion is such a proceeding. The Code specially provides for thehearing of certain applications by way of summary procedure, e.//.,sections 306, 524, and 537, and thereby treats an application as anaction within the scope of section 8. If this be so, section 8 pre-scribes the procedure for applications for which the Code does notspecially provide for the adoption of summary procedure, i.c., it isto follow the regular procedure. I am so strongly of this view, thatI consider the comma after .the word ** action ” in section 373 is amistake, and that it was intended in that section to make specialprovision for eveiy application to the Court being by way ofsummary procedure, otherwise the words ** every application tothe Court " in this section would be redundant. This view issupported by the acknowledged practice of the Courts. I wouldanswer the question reserved in the affirmative.
Appeal dismissed.