095-NLR-NLR-V-73-WALLIAMMAI-widow-of-A.-Velupillaiet-al.-Petitioners-and-K.-SELLIAH-et-al..pdf
TEWEKOON, J.— XYoUiammai v. Selliah
509
1970Present : G. P. A. Silva, S.P.J., and Tennekoon, J.WALLIAMMAI (widow of A. Vclupillai) el al., Petitioners, andli. SELLIAH et al., Respondents
S. C. 150 J70—Application Jot Revision in D. C. Point Pedro, 0G17
Civil Procedure Code—Section 42S—Local inspection by Court—Agreement of partiesthat their differences can be resolved by such inspection—Validity of the Court'sdecision.
AVhoro the parties to an action are agreod that the issuos botwoon them canbe answorod by the Judgo on tho ovidonce afforded by n view of a place, thnreis nothing in the Code that provonts tho dt/forenoos botuoon the parties boingelucidated and resolved by a local inspoction. Section 423 of the Codo con Torspowers on a Judgo to conduct such lucal investigation in person.
Thangarajasingham v. Iyampillai (62 N. L. R. 509) distinguished.
Application to revise an order of the District Court, Point Pedro.
K.Thevarajak, for the petitioners.
Cur. ado. vult.
May 11, 1970. Tennekoox, J.—
The plaintiffs who are the respondents to this application institutedon action in the District Court, Point Pedro, against the petitionersand one other (who was the husband of the 1st petitioner, but uho isnow dead) alleging that the defendants who are owners of land contiguousK 87® (1/71)
310
TEN'XEKOO.V, J.— lVaUiammai v. Selliah
to the plaintiffs’ had in or about-February 1967 built a Tobacco curingBhcd on their land very close to the plaintiffs’ residential premises ; thatthat shed constituted a nuisance by reason of the largo quantities ofsmoke issuing therefrom when it was in use, and also a source of dangerto the plaintiffs’ house as the shed was liable to catch fire and thusendanger the plaintiffs’ own house ; the plaintiffs also alleged that thedefendants put up the shed (despite protests by plaintiffs) very closeto the common boundary fence and to plaintiffs’ house ; among otherrelief the plaintiffs asked for an order requiring the defendants —
“ to demolish the said Tobacco curing shed, and if necessary toshift same further away from the commcn boundary. ”
Defendants filed answer denying that a cause of action accrued to theplaintiffs, and stating that the shed had been in existence for the last50 years and asking the dismissal of the plaintiffs’ action. Trial wasfirst fixed for the 11th of March 19’6S, and after two or three postponementswas finally fixed for the 11th of May 19G9. The parties had filed theirlists of witnesses and got out summons on them and were, apparentlyready for trial on those earlier dates.
On the 11th May 1969 counsel appeared on.both sides.. It wouldappear that after some discussion an agreement was arrived at betweenthe parties. The record reads as follows :—
“ It is agreed that parties will abide by any Order that this Courtmakes after inspection with regard to the question as to whether thetobacco curing shed in which tobacco is cured once or twice a year is- injurious to the health of the plaintiffs and other inmates of theirhouso.
Inspection on 19.5.C9 at4.30 p.m.
Parties sign the record consenting to abide by the Order that theCourt makes after inspection.”
After conclusion of the inspection on the 19th of May the DistrictJudge directed that the case be called on the 25th May. On that daycounsel appeared for both sides again, and the Court made order asfollows :—
"At the request of the parties who agreed to abide by the decisionof my inspection, I proceeded to this land and inspected it. ThereI found that the tobacco curing shed on the Northern side has beenconstructed by the defendant immediately adjoining the plaintiffs’residential houso. In my view the situation of this shed, as it nowstands, is injurious to the health of the inmates of the plffs’ house and' his family. I therefore make order that the defendant do removethis curing shed and locate it further away from this house. The: plaintiff will pay Rs. 150 as expenses for the removal of this tobaccocuring shed to the defendant. The plaintiff will bring into Court: Rs. 150 -which' the defdt will be entitled to withdraw on proof that
TEN'XEKOOX, J.—Walliammai v. Selliah
311
tho tobacco curing shed has been removed from the present position.Plff will deposit this sum on or before 2.7.69. If the sum is not sodeposited plaintiff’s action to be dismissed.
Order delivered in Open Court in the presence of parties and respectiveLawyers.
Sgd. C. M. TflARMALINaAMD. J.
25.5.69 .”
A formal Decree in terms of this order and dated as of the same datowas later entered. The sum of Rs. 150 ordered to be deposited inCourt was paid at the Kachchcri by the plaintiffs on or about the 30thof June 1969 and the Kachcheri receipt filed in Court on the 2nd ofJuly 1969. Upon application of the plaintiffs, the Court on 3rd November1969 issued Writ of Execution against the defendants. Thereafter onthe 19th of November 1969 the defendants filed “ a letter from theKirama Sevaka of Ivaraveddy North to the effect that the tobaccocuring shed had been demolished ” and moved for an Order of Paymentfor the sum of Rs. 150.
The plaintiffs opposed the application alleging that the tobaccocuring shed had not in fact been removed ; after hearing counsel thelearned District Judge on 17.1.70 made order in which he said that hedid not believe that the shed had been demolished as alleged by thedefendants; he further added that “it is quite evident that the defendantis misleading the Court. ” The application for an order of payment wasrefused.
The petitioners have now filed the present application dated 2nd March1970 praying that this Court do in the exercise of its revisionary powers“set aside all proceedings in this action commencing from 11.5.69 ” onthe ground that the learned District Judge had unlawfully acted as anarbitrator.
I find some difficulty in understanding why this application is beingmade if in fact the petitioners had demolished the tobacco curing shedin pursuance of the order of the Court. For if the petitioners havoalready done so their only outstanding grievance would be to obtainthe compensation ordered by Court and for that purpose to obtain areversal of the Court’s Order of 17.1.70. The present application placesit bej-ond doubt that the learned District Judge was right in holdingthat the petitioners had not complied with the Order of the Court todemolish the shed.
It seems to me therefore that the petitioners have in the first placoflouted the Order of the District Court ; and that they have thereaftersought to draw the sum of Rs. 150 deposited by the plaintiffs upona false representation that the shed had been demolished. In thesecircumstances, quite apart from the merits of any submissions on the
512
TEXTTKKOON, J.— Wniliammni v. Selliah
legality of the proceedings in the District Court, I am disinclined toemploy the revisionary powers of this Court at the instance of personswho have displayed an unmistakable tendency to abuse the processesof Court. Nor am I disposed to think that this Court should ex mero motuact inre vision in this case as I am not convinced that there has been anymiscarriage of justice by reason of the procedure adopted in the Courtbelow or even that there is any illegality in those proceedings.
Counsel for tho.pctitioners relied on the case of Thangaragasingham v.Jyampillai * in support of his submission that the proceedings on andafter ll.fi.C9 were illegal. In that case the parties to the action hadagreed that the Judge inspect the land and make an order as “solearbitrator ”; this Court held that while the Civil Procedure Code authorisedthe.reference of any matter in dispute in-an action to arbitration, thosoprovisions did not enable parties to appoint the Judge himself ns anarbitrati r ; and that where that is done all such proceedings are illegaland liable to bo quashed by this Court in the excreise of. its powers ofrevision 2.
In the present case there was no attempt to appoint the Judge an' arbitrator. Parties to a civil action are free to withdraw defences.taken in their pleadings ; and if the parties, fully represented by counsel,submit to Court that the only outstanding differences between the paiticsare such as are capable of being elucidated and resolved by alocal inspection, I can see nothing in the Code that prevents such athing being done.
Section 429 of the Civil Procedure Code provides as follows :—
“ In any action or proceeding in which the court deems a localinvestigation to be requisite or proper for the purpose of elucidatingany matter in dispute,.or of ascertaining the market value of anyproperty, or the amount of any mesne profits or damages or annualnet profits, and the same cannot be conveniently conducted by theJudge in person, the court may issue a commission to such person asit thinks fit, directing him to make such investigation and to reportto the court. ”
It is thus fully within the powers of a Judge in a civil case to conducta local investigation in person for the purpose of elucidating any matterin dispute or of ascertaining any' other matters referred to in the section.Courts are frequently called upon to examine exhibits produced Irk Courtand to form an opinion on disputed questions relating to such exhibit.But where the real evidence is incapal !o of being produced in Court,the Judge can, acting under section 428, go and see it himself; and itseems to me that the pioccdure is the same as if it had been broughtinto Court and made an exhibit when it would unquestionably formpart of the evidence. Local inspection ty the Judge is of course primarilyintended to enable a Judge to understand or follow the evidence. But
• . 1 (1362) 64 N. L. B. SCO.* Ibid at 574.
TEN'N’EKOON. J .—Walliammai v. Sellinh
S13
if parties are agreed that the issues between them can be answeredby the Judge on the evidence afforded by a view of the place, I can seeno illegality in the parties informing the Court that the only c.-idcncoin the ease would be that afforded by a local inspection Ly theJudge.
A useful parallel is to be found in the English rules of Civil Procedure.Order 35 rule S of the Rules of the Supreme Court gives to a Judge byvhom any cause or matter is tried power “ to inspect any place or thingwith respect to which any question arises in the cause or matter ” ;and similar provision also exists in the County Court Rules. InBuckingham v. Daily News Lid.1 the Court of Appeal held that the powt rto inspect exists not merely to enable the Judge to follow the ease ;that an inspection is just as much part of the evidence as is the testimonyof witnesses ; and that unless the nature of the dispute is such that thotestimony of experts or other witnesses is required the Judge may form aconclusion based on the inspection alone, or even in some eases contraryto the evidence of the witnesses. Lord Denning in a brief judgmentagreeing with Birkett and Paiker L.JJ. said—
“ Every day practice in these courts shows that where tlie matterfor decision is one of ordinary common sense, the judge of fact ise-ilitlcd to form his own judgment on the real evidence of a view justas much as on the oral evidence of witnesses ”
and in refusing to give leave to appeal to the House of Lords he added—
“ We do not give leave to appeal to the House of Lords. We arcsimply reaffirming the settled practice of the courts for manyyears. ”
I think that Lord Denning’s remarks in regard to the position of ajudge of fact acting on the evidence of a view in a civil ease can be appliedto a Judge making a local investigation in Ceylon under section 428 of thoCivil Procedure Code.
In the present case when the counsel for the defendants agreed to adecision after inspection he must be taken to have waived an}' defencestaken in the answer which were incapable of being resolved byan inspection alone and to have agreed to the evidence of a view assufficient both to resolve outstanding differences and to enable thoJudge either to give such relief to the plaintilTs as he thought fit withinthe prayer of the plaint or to dismiss the plaintiffs’ action. It is evidentfrom the learned District Judge’s Order of the 25th May 1059 tint tlioonly questions to be resolved by inspection were the proximity of thotobacco curing shed to the plaintiffs’ house and the cost of removal ofthe curing shed, if that became necessary. These can hardly be regardedas matters on which a personal view by the Judge was insufficient to basoa judgment. There is here, no complaint that the parties or their lawyers
1 U056) 2 Q. B. 531.
614
Alice. J.—Slate Bank af India i>. SuiuiaraVngam
were excluded when the Judge made his inspection or that they were notpermitted to point out anything of relevance ; or that counsel were notgiven an opportunity of making submissions after the inspection.
I am not persuaded therefore that proceedings on and after 11th May1969 in this case were illegal.
I would refuse to issue notice on the respondents and dismiss theapplication.
G. P. A. Sdlvx, S.P.J.—X agree.. .
Application dismissed.