SILVA vs. SILVA

012-SLLR-SLLR-2006-V-2-SILVA-vs.-SILVA.pdf


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SILVA
VS.
SILVA
COURT OF APPEAL.
SOMAWANSA, J. (P/CA).
WIMALACHANDRA, J.
CALA 75/2005 (LG).
DC NEGOMBO 5484/L.
MAY 25.2005.
SEPTEMBER 21.2005.
Civil Procedure Code, sections 121(1), 121(2), 175(1), – List of witnessesfiled after fifteen days -Leading the evidence of a witness in the list – Is itpermissible?- Does section 175(1) apply as the party has filed a list?-Discretiongranted to court under section 175(1) – Existence of special circumstances -Burden of proof on whom?
The District judge refused to permit the defendant to lead the evidence of awitness whose name appeared in the list filed not within 14 days as stipulatedunder section 121(1).
CA
Silva Vs. Silva
81
HELD:
In terms of section 175(1) of the Civil Procedure Code a party is notentitled to call as a witness a person who has not been listed in termsof section 121(2). The Proviso to section 175(1) empowers the Court touse its discretion in special circumstances where such a course isrendered necessary in the interest of justice. The burden of satisfyingcourt as to the existence of special circumstances is on the party seekingto call such witnesses.
The defendant's list was filed on 26.02.1999. The plaintiffs objectionwas on 21.02.2005. It is to be observed that sufficient notice had beengiven to the plaintiff before calling the witness since there was a longperiod of time between 26.02.1999 and 21.02.2005. Therefore noprejudice would be caused to the plaintiff as the plaintiff had more than5 years notice of the witness that the defendant intended to call.
Section 175(1) imposes a bar against the calling of witnesses who arenot listed in terms of section 121(2). In the instant case, the witnesswas included with list but the list was not filed within the time providedby section 121(2). Section 175(1) becomes applicable.
Per Wimalachandra, J.
“In exercising the discretion in terms of the proviso to section 175(1) the Courtis entitled to look into whether the conduct of the party is grossly negligent andwhether there are serious laches on the party.”
APPLICATION for leave to appeal from an order of the District Court of Negombowith leave being granted.
Cases referred to :
Girantha vs. Maria 50 NLR 519 at 522
Kandiah vs. Wiswanathan 1991 1 Sri LR 269
Asilin Nona and Another vs. Wilbert Silva 1997 1 Sri LR 176
Casiechettyvs. Senanayake 1999 3 Sri LR 11
Hiran M. C. de Alwis for defendant-petitioner.
Sunil Cooray for plaintiff-respondent.
Cur.adv.vult.
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March 3,2006.
WIMALACHANDRA. J.This is an application for leave to appeal filed by the defendant-petitioner(defendant) from the order of the learned District Judge of Negombodated 21.02.2005. By that order the learned District Judge refused topermit the defendant to lead the evidence of a witness as his name hadnot been filed at least fifteen days prior to the date fixed for the trial.
Briefly, the facts are as follows:
The plaintiff instituted this action in the District Court of Negombointeralia – for a declaration of title to the property described in theschedule to the plaint, for the ejectment of the defendant and for damages.The defendant filed answer and prayed for the dismissal of the plaintiffsaction and in the alternative for a declaration that the plaintiff is holdingthe land in dispute as a constructive trust in favour of the defendant. Thecase was fixed for trial on 09.03.99 and both parties filed their respectivelist of witnesses and documents. Admittedly, the trial started on
Issues were raised and the plaintiff gave evidence. Thereafteradditional lists were tendered by the plaintiff on 02.06.1999 (Vide- J. E.No. 7 dated 02.06.1999) and the defendant too filed an additional list ofwitnesses and documents on 15.03.2002 (v/'de J. E. No. 15/A dated15.03.2002). The trial was resumed on 15.03.2002 before another judgeafter the proceedings were adopted before him. After the conclusion ofthe plaintiff’s case the defendant started his case on 07.05.2004. On
the defendant moved to call witness No. 3 in the original listfiled on 26.02.1999. The plaintiff objected to the calling of the witness onthe basis that the particular list dated 26.02.1999 had not been filedfourteen days before the first date of trial. After hearing the submissionsmade by both parties, the learned District Judge by his order dated
upheld the objection and refused to allow that witness beingcalled. It is against this order, the application for leave to appeal hasbeen filed.
When the matter was taken up for inquiry by this Court on 03.05.2005both counsel agreed to file written submissions and if the Court grantedleave they further agreed that the appeal also be decided on the samesubmissions.
CA
Silva Vs. Silva (Wimalachandra. J.)
83
>
The case had been first fixed for trial on 09.03.1999. The defendanthad filed the original list of witnesses, in which the witness concernedwas listed as No. 3, on 26.02.1999. It appears that the list had beenfiled ten days before the case was first fixed for trial.
The learned judge in his order has held that the section 175 (1) ofthe Civil Procedure Code will apply only where a party has not filed a listat all, and he has held that in this case it wil.l not apply because eventhough the list had been filed it had not been filed within fifteen daysas contemplated by section 121 (2) of the Civil Procedure Code.
In terms of section 175 (1) of the Civil Procedure Code, a party isnot entitled to call as a witness a person who has not been listed interms of section 121 (1) of the Civil Procedure Code. This provisionrequires the list of witnesses to be filed not less than fifteen days beforethe date fixed for trial. The proviso to section 175 (1) empowers theCourt to use its discretion in special circumstances where such acourse is rendered necessary in the interests of justice to permit awitness to be called, whose name is not included in a list filed incompliance with section 121 (2) of the Code.
In the instant case, the position is that the witness that the counselfor the defendant wanted to call was included in the list of witnesses butthe list had not been filed within fifteen days before the date fixed for trialin terms of section 121 (1) of the Civil Procedure Code. The reasoning ofthe District Judge was that he cannot exercise the discretion in termsof the proviso to section 175 (1) of the Civil Procedure Code because theCourt can permit a witness to be examined only in cases where thatwitness is not included at all in such list. In the instant case thewitness was included but the list was not filed within the time providedby section 121 (2) of the Code.
Section 175 (1) of the Code imposes a bar against the calling ofwitnesses who are not listed in terms of section 121 (2) of the Code.However, the first proviso to section 175 (1) empowers the Court to useits discretion in special circumstances where such a course is renderednecessary, to permit a witness despite his name not being listed asrequired by section 121 of the Code. In the instant case too thewitness concerned was not listed in terms of section 121 (2) of theCivil Procedure Code. Accordingly, the first proviso to section 175 (1) of
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the Code vests discretion in the trial judge to permit the witness to becalled if special circumstances appear to him to render such a courseadvisable in the interests of justice.
It is to be observed that the trial, first commenced on 09.03.1999. Onthat day issues were raised and the plaintiff gave evidence. Thereafter thetrial commenced on 15.03.2002 after adopting the proceedings of
It is also to be noted that the plaintiff too filed an additionallist of witnesses after the commencement of the trial and on 19.02.2003the plaintiff led the evidence of her husband who was a witness listed inthe additional list filed by her. The defendant started his case on 07.05.2004and on 21.02.2005 the counsel for the defendant moved to call the witnessNo.3 in the original list dated 26.02.1999. Accordingly, it appears that theplaintiff had sufficient notice as to the original list of witnesses filed by thedefendant which was available to the plaintiff for well over 5 years prior tothe defendant commencing the leading of the evidence of that particularwitness. The defendant’s list was filed on 26.02.1999. The plaintiffsobjections were on 21.02.2005.
In the circumstances, it appears that the plaintiff was not placed at adisadvantage as he was aware of the defendant’s list of witnesses. Thedefendant had filed the list of witnesses with notice to the plaintiff. AsJustice Gratiaen pointed out in the case of Giranlha vs. Maria(,) at 522The purpose of the requirement of section 175 that each party shouldknow before the trial the names of the witnesses whom the other sideintends to call to prevent surprise”. In the circumstances it appears thatthe sole object of filing a list of witnesses is to prevent an element ofsurprise and thereby cause prejudice on the other party. Accordingly, ajudge may exercise his discretion and allow to call a witness not listedaccording to section 121(2) in the interests of justice provided it avoids anelement of surprise.
The judgment of Gratiaen, J. referred to above, interpreted the repealedsection 121 of the Civil Procedure Code which did not specifically requirethe filing of a list of witnesses fifteen days before the date fixed for trial.However in my view, the above mentioned observation made by Gratiaen
J.is relevant for the purpose of exercising the Court’s discretion in termsof the proviso to section 175 (1) of the Civil Procedure Code, in specialcircumstances where such a course is necessary, in the interests of justiceto permit a witness to be called who is not listed in terms of section 121 (2)of the Civil Procedure Code.
CA
Silva vs. Silva (Wimalachandra. J.)
85
I am also of the view that in exercising the discretion in terms of theproviso to section 175(1), the court is entitled to look into whether theconduct of the party is grossly negligent and whether there are seriouslaches on his part. In the instant case 1 cannot see any serious laches orgross negligence on the part of the defendant as he had listed this witness(ten days) before the date fixed for trial and five years before thecommencement of the defendant’s case.
In Girantha vs. Maria (supra) Gratiaen, J. at 522, observed that, “subjectto the element of surprise being avoided, it is clearly in the interest ofjustice that the Court, in adjudicating on the rights of the parties shouldhear the testimony of every witness who can give material evidence on thematter of dispute” In the case of Kandiah vs. Wiswanthan and AnotherWijayaratne, J. adopted a similar view. His Lordship observed that” whenan unlisted document is sought to be produced by a party in a DistrictCourt trial, the question as to whether leave of Court should be grantedunder section 175(2) of the Civil Procedure Code is a matter eminentlywithin the discretion of the trial judge that leave may be granted where it isin the interest of justice to do so” (emphasis is mine).
The learned counsel for the plaintiff relied ont he Supreme Court case ofAsilin Nona and Another vs. Wilbert Silva (3). In this case the SupremeCourt held that section 175(1) of the Code imposes a bar against callingwitnesses who are not listed in terms of section 121. The 1 st proviso tosection 175(1) confers on the Court a discretion to permit a witness not solisted to be called “if special circumstances appear to it to render a suchcourse advisable in the interest of justice. “The burden of satisfying theCourt as to the existence of special circumstances is on the party seekingto call such witnesses. The Supreme Court observed in this case thatsince no explanation was given for the default, the defendant had failed tosatisfy the Court in regard to the existence of special circumstancescontemplated by section 175(1) of the Code, particularly in view of theagreement between the Parties that the list of witnesses will be filed oneweek before the date of trial and admittedly, the defendants were in breachof the agreement.
In the instant case the facts are different from the facts in the aforesaidSupreme Court case of Asilin Nona and Another vs. Wilbert Silva (supra)In the instant case the list of witnesses had been filed before the
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comnencement of the trial but only ten days, and not fifteen days beforethe date fixed for the trial which was 09.03.1999. The application wasmade on behalf of the defendant to call the witness on 21.02.2005. It is tobe observed that sufficient notice had been given to the plaintiff beforecalling the witness since there was a long period of time between
date on which the defendant’s list of witnesses was filed, and
the date when the application was made to call the witness onbehalf of the defendant. Therefore, no prejudice would be caused to theplaintiff as the plaintiff had more than five years notice of the witnessesthat the defendant intended to call.
In the case of Casie Chetty vs. Senanayake J. Jayasinghe,w observed-
“In exercising discretion under section 175 of the Civil ProcedureCode where it is sought to call a witness whose name was not inthe list. The paramount consideration for the judge is theascertainment of truth and not the desire of a litigant to be placedat an advantage by some technicality.”
In the instant case the learned District judge in exercising the discretionvested in him under the first proviso to section 175 of the Civil ProcedureCode had failed to consider –
that the defendant has filed a list of witnesses which includedthe name of the witness that the defendant intended to call, andeven though the list was filed only ten days before the date fixedfor trial, the plaintiff got the opportunity of knowing who thewitnesses are;
that there was a long interval of time (five years) between thedate on which the list was filed and the date on which theapplication was made to call that witness on behalf of thedefendant;
that there was no element of surprise as the plaintiff had morethan adequate notice of the witnesses that the defendant intendedto call;
that the purpose of filing a list of witnesses is to prevent anelement of surprise and thereby cause prejudice to the other
CA
Karunaratne Banda vs. Dasanayake
87
party, which in my view, does not arise as there was a longinterval of time between the date on which the list of witnesseswas filed and the date on which the application was made to callthat witness;
that the conduct of the defendant is not grossly negligent andthere are no serious laches on his part.
In my view, the aforesaid matters are eminently within the discretion ofthe trial judge and the learned judge had failed to exercise that discretionconferred on him by the proviso to section 175(1) of the Civil ProcedureCode according to the rules of reason and justice. In the circumstancesthe trial judge has been in error in refusing to exercise his discretion infavour of the defendant.
For these reasons leave to appeal is granted, and the appeal is allowed.The order of the learned District Judge dated 21.02.2005 is set aside andthe defendant should be permitted to call the witness No. 3 listed in thelist of witnesses. The defendant is entitled to the costs of this appeal.
ANDREW SOMAWANSA, J. (P/CA), – /agree.
Application allowed.Defendant entitled to call the witness.