VANNAKAR AND 6 OTHERS
COURT OF APPEALF.N.D. JAYASURIYA, J.
Agrarian Services Act No. 58 of 1979 S.5 (6) – Inquiry – Absent – No stepstaken to purge default – Can a party contradict the record by filing freshaffidavits in the Court of Appeal – Question of Law – Estoppel by Record.
The Respondent-Appellant who once appeared before the Asst. Commis-sioner had failed to appear on the second occasion on 24.2.87. The lettersent by the Counsel for the Respondent-Appellants was rejected with validcause; and after inquiry order was pronounced in terms of S.5(6) on 23.3.87.
The Appellants seek to Revise this order.
During the period commencing from 24.2.87 and ending on 23.3.87and even thereafter, the Appellants had failed to file petitions and affida-vits to purge their default on 24.2.87.
'No party ought to be permitted to file a belated self serving and convenientaffidavit to contradict the Record, to vary the record or to purge a defaultwhere they have not taken proper steps to file such affidavits before theJudge/Tribunal.'
'If a party had taken such steps, then an inquiry would be held by theTribunal and the self-serving statements and averments could be evalu-ated after cross-examination of the affirmant when he gives evidence atthe inquiry'.
'When such procedure is not adopted, Court of Appeal could not take intoconsideration self-serving and convenient averments in the affidavits tocontradict and vary the Record or to purge a default committed, before theCourt of first instance'.
The order of the Asst. Commissioner had been filed of Record in D.C.Kalmunai-19/Misc. and an appeal filed from the order of the District Judgehas already been decided in S.C. 677/73 (F) DC Kalmunai- 19/Misc. Thisjudgment of the Supreme Court operates as Estoppel by Record againstthe Petitioner in respect of the revision application No. 503/87-DC Kalmunai19/Misc.
APPLICATION in Revision from the order of the District Court of Kalmunai.Cases referred to:
K. v. Jayawardane 48 NLR 489 at 503.
Gunawardane v. Kelaart 48 NLR 522.
Nizam Kariapper with Wasantha Wanigasekare and A.M. Ramzeen forAppellant
M. Kanagasunderam P.C. with Janaka de Silva for Respondent.
March 27, 1996.JAYASURIYA, J.
Learned Counsel for the Appellant relied on one solitary ground toimpugn the order of the Assistant Commissioner of Agrarian Services
(Inquiries) pronounced on 23.3.87 which appears at page 139 of therecord. He contended that the Appellant who had once appeared be-fore the Assistant Commissioner (Inquiries) had failed to appear at theinquiry office on the second occasion on 24.2.87. It is orally allegedthat the Appellants were precluded from travelling from their place ofresidence to the town where the inquiry was being held due to blast ofbombs. It is alleged that counsel appearing for the Respondent-Appel-lant at the inquiry had sent a letter to the Inquiring Officer which hadbeen rejected with valid cause at the commencement of the proceed-ings of the inquiry. After inquiry the Assistant Commissioner's orderwas pronounced in terms of section 5 (6) of the Agrarian Services Actand read only on 23.3.87. During the period commencing from 24.2.87and even ending on 23.3.87, and even thereafter the Respondents tothis application, who are the present Appellants, had failed to file affi-davits and petitions to purge their aforesaid defaults on 24.2.87 and totake steps for an inquiry to be held in the Agricultural Tribunal with aview to purge their default. Justice Dias in King v JayawardenaL''1 hasconsidered the earlier line of decisions laying down the cursus curiaewith regard to the legality of filing convenient and self-serving affidavitsin appeal to vary and contradict the record or with a view to purge adefault which had taken place before the Court of first instance. After areview of these decisions he held that no party ought to be permitted tofile a belated self-serving and convenient affidavit to contradict therecord, to vary the record or to purge a default where they have nottaken proper steps to file such affidavits before the Judge or Presidentof the Court of first instance or tribunal respectively. Vide also the judg-ment of Justice Canekeratne in Gunewardena v Kelaart.(2) If a partyhad taken such steps to file papers before the presiding officer of Courtof first instance, then an inquiry would be held by him and the self-serving statements and averments could be evaluated after cross-ex-amination of the affirmant when he gives evidence at the inquiry. If sucha procedure was adopted the Court of Appeal would have the benefit ofthe recorded evidence which has been subjected to cross examinationand the benefit of the findings of the judge of the Court of first instance.When such procedure is not adopted, Justice Dias ruled that the Courtof Appeal could not take into consideration self-serving and convenientaverments in the affidavits to contradict and vary the record or to purgea default committed before the Court of first instance. In the courts offirst instance I have respectfully followed such prudent observationsmade by judges with considerable experience in the actual working ofthe Magistrate and of the District Courts. In the circumstances thisCourt refuses to take into consideration the self-serving and conven-ient oral assertions on the facts made by the learned counsel for theAppellant for the first time at the hearing of this appeal. These mattersought to have been placed before the inquiring Officer to enable him toconduct a proper investigation or inquiry into the matters which arenow sought to be adduced for the first time in appeal.
Learned Counsel for the Appellant was unable to impugn the cor-rectness of the order of the Commissioner of Agrarian Services dated22.3.83 or to point to any error of law in that order. An appeal lies onlyon a question of law from an order made by the Assistant Commis-sioner under the provisions of section 5 (6) of the Agrarian ServicesAct. There is no misdirection in point of fact or on a point of law, noimproper evaluation of evidence nor any defect of procedure on a con-sideration of the totality of the evidence and order pronounced by theAssistant Commissioner. I hold that there is no error of law which arisesupon this appeal and therefore this Court is obliged to dismiss thisappeal with costs.
This order of the Assistant Commissioner of Agrarian Services hasbeen filed of record in the District Court of Kalmunai Case Number 19Miscellaneous and an appeal filed from the order of the District Judgehas already been decided in Supreme Court Appeal No. 677/73 (F)D.C. Kalmunai 19 Miscellaneous – vide Supreme Court Minutes dated08.6.1978. Vide judgment pronounced by Justice George T.Samarawickrema and Justices, V. Thamotheram and J.G.T. Weeraratne.This judgment of the Supreme Court operates as estoppel by recordagainst the Petitioner in respect of the revision application No. 503/87D.C. Kalmunai 19/Misc. In the result I proceed to dismiss the appealof the Appellants and the revision application filed by the Appellant-Petitioners with costs in a sum of Rs. 2100/- payable by the appellant-Petitioners to the respondent. The aforesaid revision application is alsodismissed with costs.