020-SLLR-SLLR-2007-V-1-ARPICO-FINANCE-CO.-LTD-v.-PERERA-AND-OTHERS.pdf
208
Sri Lanka Law Reports
[2007] i Sri L.R
ARPICO FINANCE CO. LTD.v
PERERA AND OTHERS
COURT OF APPEALWIMALACHANDRA, J.
CALA 230/2005
DC MT. LAVINIA 2457/99M
SEPTEMBER 27, 2006
Civil Procedure Code – Sections 121(2), 175, 175(2) – Document in additionallist filed after the case was first fixed for trial – Exceptional circumstances toexercise discretion – Interest of justice – Paramount consideration.
The plaintiff-petitioner pleaded that, the 1 st defendant-respondent entered intoa lease agreement with the plaintiff-petitioner in respect of a Toyota bus.Though the defendant-respondent agreed to pay the lease rentals hedefaulted. At the trial, the plaintiff-petitioner sought to produce another leaseagreement, this was objected to, on the basis that the document had beenlisted in the additional list but which was filed after the first date fixed for thetrial. The District Court held with the defendant-respondent.
Held:
Provisions of section 121 (2) empowers the Court to require the list ofdocuments to be filed not less than 15 days before the date fixed fortrial.
Section175 (2) empowers Court to use its discretion and grant leaveto produce a document which is not listed in terms of section 121(2).
160
CA
Arpico Finance Co. Ltd. v Perera and others
(Wimatachandra, J.)
209
Whether leave should be granted or not is a matter eminentlywithin the direction of the trial Judge.
The defendant had notice of this document when the plaintiff raisedIssue No. 12, and further the lease agreement has been pleadedin the replication.
The principle of filing a list of witnesses is to prevent an element ofsurprise and thereby not cause any prejudice to the other party.
The 1st defendant cannot be heard to say that she was taken bysurprise.
APPLICATION for leave to appeal from an order of the District Court ofMt. Lavinia.
Cases referred to:
Kandiah v Wiswanathan and another- 1991 – 1 Sri LR 269.
Girantha v Maria – 50 NLR 519 at 522.
Casiechettyv Senanayake- 1999 – 3 Sri LR 11 at 14 and 15.
Paiitha Kumarasinghe PC with M.I.U. Idroos for plaintiff-petitioner.
S. Gunawardane with J. Hissella and S. Athuladewa for 1 st and 4th defendant-respondents.
May 04, 2007
WIMALACHANDRA, J.
This is an application for leave to appeal filed by the plaintiff- 01petitioner (plaintiff) from an order of the learned Additional DistrictJudge of Mount Lavinia dated 2.6.2005.
The plaintiff instituted the above action against the defendant-respondents (defendants) jointly and severally for a judgment in asum of Rs. 2,442,385/62 and the legal interest at the rate of 4% permonth from 7.10.1999 till the date of the decree. The plaintiff haspleaded in the plaint that the 1st defendant entered into a leaseagreement bearing No. LF/1208/25/98 dated 27.11.1988 with theplaintiff in respect of a Toyota-Coaster bus described in the 10schedule to the plaint. The 1st defendant had agreed to repay thetotal sum in the lease in 48 monthly instalments. In the event of adefault, the parties had agreed that the plaintiff is entitled to
210
Sri Lanka Law Reports
[20071 1 Sri L.R
terminate the lease agreement and charge default interest and torecover statutory and other charges arising out of the agreement.The 2nd, 3rd, and 4th defendants were the guarantors of the leaseagreement. When the plaintiff instituted this action in the DistrictCourt of Mount Lavinia, the 1st, 2nd and 3rd defendants expressedtheir willingness to settle the action and a consent motion was filed.
However, the 1st, 2nd and 3rd defendants failed to complywith the terms of the settlement and hence the plaintiff made anapplication for writ of execution. Thereafter on an application madeby the defendants the District Court set aside the settlement andfixed the matter for trial.
When the case came up for trial on 30.06.2004, the plaintiffcalled an executive officer attached to the plaintiff-company. Theexamination in chief could not be concluded on that day and thematter was re-fixed for further hearing on 7.10.2004. On 7.10.2004the trial was refixed for 26.5.2005. When the trial was resumed, theplaintiff continued to lead the evidence of the earlier witness and hetold Court that the 3rd defendant entered into another leaseagreement bearing No. LF/1207/25/98 on 27.11.1998. The plaintiffthen sought to produce the said agreement marked 'P19'. At thatstage the Counsel for the 1st defendant objected to the saiddocument being produced on the ground that the said documenthad been listed in the additional list which was filed on 14.6.2004,which was after the first date fixed for the trial to this action. Thisobjection was upheld by the learned Additional District Judge byorder dated 2.6.2005.
When this matter was taken up for inquiry into the granting ofleave, by consent of the parties, leave to appeal was granted on thequestion whether the lease agreement bearing No. LF/1207/25/98referred to in the proceedings dated 2.6.2005 should be allowed inevidence. Thereafter, the parties agreed to dispose of this matterby way of written submissions.
When the trial resumed on 2.6.2005 the Counsel for theplaintiff moved to produce and mark the said lease agreementbearing No. LF/1207/25/98, and the Counsel for the defendantsobjected to producing the said document on the basis that the saiddocument was listed in the additional list filed on 14.6.2004, which
20
30
40
50
CA
Arpico Finance Co. Ltd. v Perera and others
(Wimalachandra, J.)
211
was after the case was first fixed for trial. The learned District Judgeupheld the objection and rejected the said document.
In this order the learned Judge held that there are no exceptionalcircumstances to exercise his discretion under the proviso to section175(2) of the Civil Procedure Code to allow the said document. Thequestion that arises in this appeal is whether the discretion of Court interms of section 175(2) has been correctly applied.
Section 175(2) reads thus.
"A document which is required to be included inthe list of documents filed in Court by a party as60
provided by section 121 and which is not soincluded shall not, without the leave of the Court,be received in evidence at the trial of the action."
The provisions of section 121(2) of the Civil Procedure Coderequire the list of documents to be filed not less than 15 days beforethe date fixed for trial. Section 175(2) empowers the Court use itsdiscretion and grant leave to produce a document which is notlisted in terms of section 121(2) of the Civil Procedure Code.
The purpose of listing of witnesses and documents is toprevent an element of surprise and thereby not cause any prejudice 70to the opposite party. It also prevents false documents from beingintroduced after the institution of the action.
It was held in the case of Kandiah v Wisvanathan andanother that when an unlisted document is sough to be producedby a party in a District Court trial, the question as to whether leaveof Court should be granted under section 175(2) of the CivilProcedure Code is a matter eminently within the discretion of thetrial Judge. The precedence indicates that leave may be granted:
where it is in the interest of justice to do so.
where it is necessary for the ascertainment of the truth. 80
where there is no doubt about the authenticity of thedocuments (as for instance a certified copy of a publicdocument or records of judicial proceedings).
where sufficient reasons are adduced for the failure to listthe document (as for instance where the party wasignorant of its existence at the trial)
212
Sri Lanka Law Reports
{2007] 1 Sri L.R
Where the Court admits such a document, an appropriateorder for costs will generally alleviate any hardship caused to thesaid party.
The learned Counsel for the plaintiff submitted that the lease 90:agreement LF/1207/25/98 has been referred to in paragraph 10 ofthe replication filed by the plaintiff. Therefore, the 1st defendant hadnotice of the said lease agreement.
Now I shall proceed to consider whether leave of Court shouldbe granted under section 175(2) of the Civil Procedure Code toallow the said document to be included in the list of documents.
As pointed by Gratiaen, J. in Girantha v Marini at 522, thepurpose of the requirement of section 175 that each party shouldknow before the trial the names of the witnesses whom the otherside intends to call is to prevent surprise. The proviso to section 1001175 of the Civil Procedure Code authorizes the Court to permit awitness to be called although his name does not appear on the listof witnesses filed before the commencement of trial is such courseis "advisable in the interest of justice".
Jayasuriya, J. in Casie Chetty v Senanayake at 14 and 15quoted with approval the opinion expressed by Gratian, J. inGirantha v Maria (supra) and held:
"In exercising under section 175 of the CivilProcedure Code where it is sought to call a witnesswhose name was not in the list, the paramount110
consideration of the Judge is the ascertainment oftruth and not the desire of a litigant to be placed atan advantage by some technicality."
The same principle applies to the listing of documents.
In Kandiah v Wisvanathan and another (supra) at 275, 276,Wijeyaratne, J. too held that among other grounds upon which theCourt should consider granting leave of Court to receive an unlisteddocument, are where it is necessary for the ascertainment of thetruth and it is in the interest of justice to admit such a document.
The learned Counsel for the plaintiff submitted that the plaintiff by 120its replication dated 13.6.2003 marked 'J', in paragraph 10, denied the1st defendant's position taken up by her in paragraph 8 of her answer
CA
Arpico Finance Co. Ltd. v Perera and others
(Wimalachandra, J.)
213
In the circumstances, it appears that the 1st defendant wasaware of this document, the lease agreement bearing No.
LF/1207/25/98. Therefore it cannot be said that the 1st defendant wastaken by surprise when the said document was listed in the additional uolist of documents. The 1st defendant had notice of this documentwhen the plaintiff raised the issue No. 12. The principle of filing a listof witnesses is to prevent an element of surprise and thereby notcause any prejudice to the other party.
In the circumstances, to ascertain the truth which should be theparamount consideration, and in the interest of justice the leaseagreement LF/1207/25/98 listed in the additional list should beallowed as the said document is necessary to decide the aforesaidissues Nos. 12 and 27. Furthermore if this document is not allowedgrave injustice would be caused to the plaintiff as the plaintiff will be 150unable to explain the facts relevant to the execution of the mortgagebond No. 5443 attested by D.L. Liyanage, N.P. In any event noprejudice would be caused to the 1st defendant as she had notice ofthis document. Moreover, the 1st defendant cannot be heard to saythat she was taken by surprise as this document, the lease agreementLF/1207/25/98, has been pleaded by the plaintiff in paragraph 10 ofthe replication and it was out in issue by raising the issue No. 27.
and in reply the plaintiff by its replication marked 'J' annexed to thepetition has stated in paragraph 10 that the mortgage bond No. 5443attested by D.L. Liyanage, N.P. was executed as security against thelease agreements No. LF/1207/25/98 and No. LF/1208/25/98 and thesaid mortgage has been released and sold and the proceeds werecredited to both lease agreements. Furthermore the 1st defendanthas put this matter in issue No. 12 and the plaintiff has raised aconsequential issue No. 27.130
The issue 27 reads as follows:
214
Sri Lanka Law Reports
[2007] 1 Sri L.R
In the circumstances the learned Additional District Judge was inerror when he refused to exercise the discretion of Court and refusedleave to produce this document.’so
For these reasons stated above I set aside the order of thelearned Additional District Judge dated 2.6.2005. Accordingly, theappeal is allowed with costs.
Appeal allowed.