076-NLR-NLR-V-71-W.-L.-FERNANDO-Appellant-and-W.-J.-FERNANDO-Respondent.pdf
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Fernando v. Fernando
1968 Present: Abeyesundere, J., and Samerawickrame, J.' W. L. FERNANDO, Appellant and W. J. FERNANDO,
Respondent
S. G. 2 {Grim.) {1967—D. C. Negombo, 621 IP
Contempt of Court—Summary procedure in a District Court—Requirement of propercharge at commencement of trial—Civil Procedure Code, as. 793, 796—Court»Ordinance, a. 36.
■ In proceedings in a District Court for contempt of court for disobeying aninterim injunction in a partition action, no charge was read out to the accusedand her plea as to whether or not she admitted the truth of the charge was nottaken and recorded.
Held, that the conviction of the accused was not valid. The provisions ofsection 796 of the Civil Procedure Code are imperative provisions which mustbe complied with for a trial to commence.
ABEYESUNDERE, J.—Fernando v. Fernando
346
Ap
PEAL from a judgment of the District Court, Negombo.
H. W. Jayewardene, Q.C., with A. Sambandan and I. 8. de Silva, forthe 3rd defendant-appellant.
C. Ranganaihan, Q.C., with A. J. F. Fernseka, for the. Plaintiff-Respondent.
March 22, 1968. Abeyesundebe, J.—
The appellant in this case is the 3rd defendant in partition actionNo. 621 /P of the District Court of Negombo. The District Court issued inthat action an interim injunction restraining the appellant, her agentsand her servants from constructing a building on the land proposed to bepartitioned till the determination of that action. The plaintiff in thataction complained to the District Court that the appellant had disobeyedthe interim injunction and on that ground asked for summons undersection 793 of the Civil Procedure Code requiring the appellant to appearbefore the District Court to answer the charge. The summons.that wasissued by the District Court stated that the appellant had failed andneglected to obey the interim injunction served on her on 24th December,1964 restraining her and her agents and servants from constructinga building on the said land till the determination of. the partitionaction. After trial the learned District Judge held that the appellanthad disobeyed the interim injunction and imposed on her a fine ofRs. 750/- and, in default of payment of the fine, sentenced her tofour months’ simple imprisonment. The appeal is from the convictionand sentence.
It is dear from the record of the case that on the day appointed forthe hearing of the charge against the appellant, no charge was read outto her and her plea as to whether or not she admitted the truth of thecharge was not taken and recorded. Counsel appearing for therespondent to the appeal drew the attention of this Court to the factthat the counsel for the appellant at the trial in the District Court hadstated that the appellant denied the charge. The proceedings being in thenature of criminal proceedings, it was the person charged who should havebeen asked whether or not she admitted the charge and it was her pleathat should have been recorded. The learned District judge hastherefore failed to comply with the provisions of section 796 of the CivilProceedure Code.
Counsel for the respondent submitted that at the trial the appellantwas aware of the charge as she gave evidence to repel the charge. Ona reference to the record we find that the circumstances in which theappellant got into the witness-box were that, when her counsel expressedthe desire to lead some medical evidence to prove that she was ill on theday on which the plaintiff in the partition action alleged that summons 'had been served on her, the learned District Judge indicated to her
346
The Queen v. EJcanayake
counsel that the stage at which such medical evidence could be adduced wasafter she gave evidence, and then her counsel called her into the witness-box and she gave her evidence. We are therefore unable to agreewith the submission of counsel for the respondent that the fact that theappellant gave evidence at the trial indicates that she was aware of thecharge.
Counsel for the respondent also submitted that, under section 36of the Courts Ordinance, this Court should not on appeal reverse or alterthe conviction entered in this case against the appellant unless anysubstantial right of the appellant had been prejudiced. We are satisfiedthat a substantial right of the appellant has been prejudiced. She hasbeen denied the substantial right of being properly charged at thecommencement of the trial and of pleading to the charge. We aretherefore unable to agree with counsel for the respondent that section 36of the Courts Ordinance prevents the conviction of the appellant frombeing reversed.
We hold that the provisions of Section 796 of the Civil Procedure Codeare imperative provisions which must be complied with for a trial tocommence. We also hold that in this case there has been no trialaccording to law and accordingly the conviction of the appellant and the, sentence' passed on her must be reversed.
For the aforesaid reasons we set aside the conviction and sentenceand discharge the appellant.
Samebawickrame, J.—I agree.
Conviction set aside.