066-NLR-NLR-V-26-CAROLIS-APPUHAMY-v.-PETER-SINGHO-et-al.pdf
( 376 )
1924.
Present: Bertram O.J. and Schneider J.
CAROLIS APPUHAMY v. PETER SINGHO et al107—D. C. {Inty.), Colombo, 51,798.
Civil Procedure Code, s. 145—Postponement of trial for the production ofevidence—Party in default—Dismissal of octiorv—Powers of Court.
Where a party to an action has been granted time to producecertain evidence and fails to do so at the hearing, the court hasno power to dismiss the action. It must proceed to hear such otherevidence as may be tendered on behalf of the party in default anddecide the action forthwith.
A
PPEAL from an order of the District Judge of Colombo,dismissing the plaintiff’s action. The action had commenced
in 1918, but no steps had been taken to prepare the case for trial,when under a peremptory order of the learned Judge, it was fixedfor hearing on May 28. The case had been adjourned from timeto time to enable the plaintiff to obtain a survey of the subject-matter of the action and a report by an impartial expert witness.When the case came on for hearing, the learned District Judgefinding that the necessary evidence was not available refused amotion for another adjournment and dismissed the action.
( 877 )
Samarawickreme (with him Arulanandan),for the plaintiff,
appellants.
L. Pereira (with him Navaratnam), for the defendant,'respondents.
October 8, 1954. Bertram C.J.—
This is an appeal against an order of the learned Judge dismissingthe action on the ground that, after repeated delays, and after aprolonged course of a most dilatory procedure, the plaintiff was,in the opinion of learned Judge, not in, a position effectively to provehis case, and that it would be a waste of time to allow him to attemptto do so. I have the greatest sympathy with the impatience whichthe learned Judge displayed. I think he was most justified in hisimpatience. It is very much to be regretted that at some earlierperiod in these proceedings a peremptory order was not made.
The action was commenced in 1918, and nothing effective had beendone to prepare the case for trial when under a peremptory order ofthe learned Judge, it was fixed for hearing on May 28 of this year.It had been clearly realized throughout the case that it was mostdesirable that there should be a survey of the subject-matter of theaction and a- report by an impartial expert witness. The casehad been adjourned time after time because this evidence wasnot available, and the plaintiff had not taken the necessary stepsto make it available. When the case came on for hearing, therewas yet another motion for adjournment, which was refused. Thecase was thus exactly in the position provided for by section 145 ofthe Civil Procedure Code, which says that if any party to an actionto whom time has been granted fails to produce his evidence, or tocause the attendance of his witnesses, or to perform any other actnecessary for the further progress of the action for which time hasbeen allowed, the Court may, notwithstanding such default, proceedto decide the action forthwith.
It seems to me that what that section contemplated was thatwhen the Court found itself in such a position it shopld hear whatother evidence available that might be tendered on behalf ofthe party in default, and should then decide the action. It does notsay that in such a case the Court may dismiss the action. If such aspecial proceeding has been contemplated by the framers of the Code,
I think that they would have inserted an express provision on thisvery ppint in the Code.
This question has in another form come up before this Courtin more than one case, and in particular in the case bf Mamnoor v.Mohamed, 1 which is a decision of three Judges of this Court. TheCourt there carefully considered a previous decision—SumanasaraUnnanse v. Seneviratne, 2 and the principle enunciated in that case1 (1923) 23 N. L. B. 493.* (1912) IS X. L. B. 375. "
1924*
CarolisAppvhanv/v. PeterSingko
( 378 )
1924.
Bertram
C,J.
CaroliaAppuhamyv. PeterSingho
was that in the case of an order finally dismissing an action it is.necessary that a Judge should act under some specific power givento him under the Code. That principle was unanimously approved,in-Mamnoor u. Mohamed (supra), and it appears to me that it applies,to the present case. The reason why the learned Judge took this step*was that in his opinion the evidence of an impartial and trustworthysurveyor was absolutely essential, and *that the evidence which theplaintiff proposed to tender was bound to have been entirelyunsatisfactory, and would have involved a waste of public time.
These reasons appear hardly to justify the learned Judge intaking a step not warranted by any express provision of theCode. The learned Judge may no doubt have been right in higanticipation that the evidence would have been unsatisfactory.
I think he was probably quite right in feeling that it would be quiteimpossible for him to estimate the damages in the case withoutexpert evidence which was not available, and that he would bereduced, in the most favourable prospect of the case, to the positionof having to guess the damages. Nevertheless, I think he wasbound to proceed with this irksome and unsatisfactory process.He does not say that the plaintiff in calling the evidence’he proposed to tender would be guilty of an abuse of the process of*the Court. It is quite possible that that position may arise. It ispossible that he made it quite clear that any continued calling ofevidence by a party in the case would be a clear abuse of the processof the Court. If that situation arose, I have no doubt that theinherent powers of the Court would be sufficient to deal with it.But the learned Judge does not put the case as high as that, afidin the absence of any express authorization, I think that this ordercannot be supported. I would, therefore, allow the appeal withcosts in this Court, and remit the case for further hearing. I trustthat it will then be finally and expeditiously disposed of.
Schneider J.—I agree.
Appeal allowed-