Walker & Sons Co. Ltd. v Masood
WALKER & SONS CO. LTDv
MASOODSUPREME COURTAMERASINGHE. J.
SC 50/98CALA 159/96DC COLOMBO 16006/MRMARCH 15, 1999
Civil Procedure Code Section 121 (2) – Section 175 – List of documents not filedfifteen days prior to the date of trial – Is it mandatory? – Element of surprise?
Sri Lanka Law Reports
 3 Sri L.R
The list of documents relied upon by the plaintiff was not Tiled fifteen days priorto the date of trial in terms of section 121. On an objection taken in the DistrictCourt the District Judge rejected a document in the list of documents. The Courtof Appeal set aside the said order.
The document has been referred to in the plaint and in the answerthis document has been referred to by way of reply to the plaint.
The defence taken out that the production of this document tookthe defendant-appellant by surprise cannot be sustained.
Per Weerasekera, J.
‘The Civil Procedure Code tested by time breathes live and practical and rules
of law with a view to speedy justice."
Court is permitted in appropriate circumstances to permit theproduction of documents though not listed – Section 175(2).
APPEAL from the judgment of the Court of Appeal
Ajantha Cooray with Mr. Medahinna for defendant-respondent-petitioner.
E.D. Wickremanayake withA.P. Niles for plaintiff-petitioner-respondent.
March 15, 1999WEERASEKERA. J.
Special leave to appeal was granted on 04.06.98 on thefollowing questions:-
Are the provisions of section 121 (2) of the Civil ProcedureCode mandatory?
In any event can the discretion conferred by section 175of the Civil Procedure Code be utilized in a case whereprovisions of section 121 applies?
These questions arose with regard to a document dated 31stJuly 1989 that had not been listed in terms of section 121 (2)of theCivil Procedure Code.
The learned District Judge disallowed the application toproduce this document. The order of the learned District Judge wasset aside by the Court of Appeal on 27th January, 1998. The
Walker & Sons Co. Ltd. v Masood
application for special leave was from the order of the Court ofAppeal by the defendant-respondent-petitioner.
We have considered very carefully the submissions made onbehalf of the appellant. The contention of Counsel for the appellantwas that there was no listing of this document in terms of section121 (2) of the Civil Procedure Code and that it being mandatory todo so the production of the document sprung a surprise to thedefendant-respondent.20
We find that this document has been referred in the plaint andthat in any event the document had in fact been listed 13 daysbefore the trial. Counsel for the appellant conceded that thedocument sought to be produced was referred to in the plaint andthat in his an answer this document had been referred to by way ofa reply to the plaint.
In those circumstances the defence taken up that theproduction of the document took the defendant-appellant bysurprise, cannot be sustained. Counsel for the appellant then urgedthat though the objection to the non listing in terms of section 121(2) 30was technical yet it was mandatory. We regret we are unable toagree with Counsel for the appellant.
We are of the view that as Chief Justice Abrahim stated “thisis a Court of justice and not an academy of law” and that the CivilProcedure Code tested by time breathes live, and practical andrules of law with a view to speedy justice.
This view is confirmed by section 175 of the Civil ProcedureCode by which the Court is permitted in appropriate circumstancesto permit the production of documents though not listed.
In those circumstances, the appeal is dismissed with costs 40fixed at Rs.1000/=. The judgment of the Court of Appeal dated27.01.98 is affirmed.
We direct the District Judge to give this case priority.
AMERASINGHE, J.I agree.
GUNAWARDENA, J. – I agree.