018-SLLR-SLLR-2008-V-2-VILMA-DISSANAYAKE-AND-OTHERS-v.-LESLIE-DHARMARATNE.pdf
184Sri Lanka Law Reports[2008] 2 Sri L.R
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VILMA DISSANAYAKE AND OTHERSv
LESLIE DHARMARATNESUPREME COURT.
S.N. SILVA, C.J.
JAYASINGHE, J.
RAJA FERNANDO, J.
SC 3/2007
SC SPL. LA 114/2006CALA 304/2004DC COLOMBO 16858/LJANUARY 24, 2007
Judicature Act No. 2 of 1978 – amended by Act No. 27 of 1999 – Section 48 -Continuing proceedings before succeeding Judge – Necessity? Discretion ofCourt?
Held:
It is necessary for a succeeding Judge to continue proceedings since thereare change of Judges holding office in a particular Court due to transfers,promotions and the like.
It is in these circumstances that Section 48 was amended giving discretionto a Judge to continue with the proceedings.
The exercise of such discretion should not be disturbed unless there areserious issues with regard to the demeanour of any witnesses recorded bythe Judge who previously heard the case.
APPEAL from the judgment of the Court of Appeal.
Gamini Marapana PC with Kushan de Alwis and Navin Marapana forpetitioner.
Bimal Rajapakse with Ravindra Anawaratne for 2nd defendant-respondent.January 24. 2007
Vilma Dissanayake and others v
SCLeslie Dharmaratne (S.N. Silva. C.J.)185
S.N. SILVA, C.J.
This is an application for leave to appeal from the judgment of theCourt of Appeal dated 17.3.2006. By that judgment the Court of Appealset aside the order of the Additional District Judge whereby theAdditional District Judge decided to continue with the proceedings andto enter judgment on the basis of evidence already recorded. TheAdditional District Judge acted on the basis of Section 48 of theJudicature Act No. 2 of 1978 as amended by Act No. 27 of 1999. TheCourt of Appeal held that since the Judge has not observed thedemeanour of the witnesses there is an unreasonable exercise of thediscretion vested in the Judge in terms of Section 48 as amended.Both Counsel agreed that special leave to appeal could be granted.We accordingly grant special leave to appeal, since the evidence hadbeen recorded by a Judge who is yet in the judicial service as a Judgeof the High Court and there is a possibility of the judgment being writtenby that Judge. Both parties agreed that no further evidence need beadduced. With consent of Counsel took up the matter for hearing.
It is necessary for a succeeding Judge to continue proceedingssince there are changes of Judges holding office in a particular Courtdue to transfers, promotions and the like. It is in these circumstancesthat Section 48 was amended giving a discretion to a Judge tocontinue with the proceedings. Hence the exercise of such discretionshould not be disturbed unless there are serious issues with regard tothe demeanour of any witness recorded by the Judge who previouslyheard the case. It is common ground that there are no such issues asto demeanour when evidence was adduced by the 1st defendant.
Both Counsel, on the basis of the instructions received agreed thatthe judgment could be written by Mrs. Malini Gunaratne, presently aJudge of the High Court being the judge who heard the matter andbefore whom all the evidence was recorded.
Accordingly we allow this appeal and set aside the judgment dated17.03.2006 of the Court of Appeal.
Registrar is directed to send this judgment to the Court of Appeal forthe Court Appeal to forward the original record together with thisjudgment to the District Court of Colombo.
The Registrar, District Court of Colombo will seek an order from the
186Sri Lanka Law Reports[2008] 2 Sri L.R
Judicial Service Commission for the appointment of Mrs. MaliniGunaratne presently High Court Judge to conclude case No. D.C.Colombo 16858/L, on the basis of the evidence that has beenrecorded. Early action to be taken by the Registrar, Supreme Court,Registrar, Court of Appeal and the Registrar, District Court consideringthe long delay in concluding this matter. The appeal is allowed. Nocosts.
JAYASINGHE, J.-I agree.
RAJA FERNANDO-I agree.
Appeal allowed.