001-NLR-NLR-V-61-SARAVANAMUTTU-Appellant-and-SARAVANAMUTTU-Respondent.pdf
THE
NEW LAW REPORTSOF CEYLONVOLUME LXI
1959 Present: Basnayake, C. J., and Sinnetamby, J.
SARAVAFAMUTTU, Appellant, and SARAVAHAMUTTU, Respondent
C. 22—D. G. Colombo, 3,453jD
Judgment—Effect when Judge who signs and dates it has ceased to hold office-—Effectof delay in uniting a judgment—Givil Procedure Code, s. 185.
A judgment written by a Judge who is functus officio on the day on- whichhe signs and dates it is invalid and cannot be pronounced under section 185-ofthe Civil Procedure Code by his successor.
In a case which turns on the impressions created by the oral evidence ofwitnesses it is important that the trial Judge should write his judgment withoutundue delay.
-^^lPPEAL from a judgment of the District Court, Colombo.
Tn this application by a wife for separation a mensa et thoro, the hearingwas concluded by the District Judge of Colombo on July 27, 1956, andjudgment was reserved to be delivered on a subsequent date. On August 1-,1956, however, the Judge vacated his office and was, thereafter, engagedin a busy practice as an Advocate. He was appointed on January 13,1958, to be Additional District Judge, Colombo, to enable judgment to bedelivered. His judgment, which was signed by him and dated on June17, 1957, was pronounced in open Court on January 13, 1958, by one ofthe Additional District Judges.
E. Chitty, Q., C., with A. 8. Vanigasooriyar and Stanley Perera, forDefendant-Appellant.
J.N. Femandopulle. with M. Shanmugalingam, for Plaintiff-Respon-dent.
Gar. adv. vult,
1 r tt
27. XL 4095—IjSSS (3/59)
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BASNATAKE, C.J.—Saravanamuttu v. Saravanamuttu
June 10, 1959. Basnayakb, C.J.—
This is an appeal by the defendant to an application for a decree for aseparation a mensa et thoro. The defendant-appellant (hereinafterreferred to as "the "appellant) is- the husband: of the plaintiff-respondent(hereinafter referred to as the respondent).
Learned counsel for the appellant has argued two preliminary questionsof importance. The facts material for the decision of those two questionsare as follows :— The hearing of the application was concluded on 27thJuly 1956. On that day judgment was reserved to he delivered on 1stAugust 1956. After judgment was reserved the District Judge who heardthe case vacated his office. On 1st August 1956 the judgment was notdelivered as it was not ready. It would appear from the minutes in thejournal that it was not ready till 17th June 1957 on which day the followingminute appears in the journal:— “ Inform proctors that judgment willbe delivered on 19.6.57 ”, and notice was ordered on the respondentand her proctor. On 18th June 1957 the proctor for the appellant movedby a motion in writing that the case he fixed for further hearing andfurther addresses. Ou 26th July 1957 the matter of the motion wasfixed for inquiry on 18th October 1957. On that day counsel for therespective parties were heard and on 18th December 1957 order was maderefusing the appellant’s application. The Judge who heard the applicationalso made order that the judgment dated and signed on 17th June 1957by the Judge who had ceased to hold office after 1st August 1956 willbe delivered at 10.45 a.m. on 13th January 1958 and the Secretaryof the Court was directed to take steps to have the Judge appointedas a District Judge on that day for the purpose of delivering the judgment.The appointment was accordingly made by the following letter ofappointment:—
“ Copy to : D. J.s Colombo.
Ref. his Ir. Ho.—of 18.12.57.
No. JAA/11/48.
Office of the Judicial Service Commission,
P.O. Box 573,
Colombo, 20th December, 1957.
Sir,APPOINTMENTThe Judicial Service Commission has been pleased to appoint you to beAdditional District Judge, Colombo, on 13th January, 1958, to enablejudgment to be delivered in D. C-. Colombo Case No. 3.453/D.
It is tinders to od that you are willing to act without remuneration.
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BASNAYAKE, C.J.—&aravonamuttu v. SaravanarmtUu -■■■■■ % ' 11
Your attention is specially invited to paragraphs 690-703 of the
Financial Regulations, copies of which are available in all the courts.
I am, Sir,
Your obedient Servant,
Sgd. D. E. WlJEYBWARDENS,Secretary, Judicial Service Commission.
P.A. W. Kingsley Herat Esq..
Advocate,
" Shiranthi ”,
209, Quarry Road.
Dehiwala. ”
On 13th January 1968 the judgment written on 17th June 1957 andsigned and dated on that day "by Mr. Herat was pronounced in opencourt "by one of the additional District Judges.
The first point taken by learned counsel is that the Judge who heardthe case was fimctus officio on the date on which he wrote the judgmentand that although it was pronounced by a Judge of the court it has novalidity as it was written by a person who had ceased to be a Judge andwas no longer qualified to give a judicial decision.
The second point is that as nearly a year had elapsed between theconclusion of the hearing and the date on which the judgment was written,the Judge was bound to have lost the advantage of the impressionscreated by the witnesses whom he saw and heard, and that his recollectionof the fine points in the case would have faded from his memory by thetime he came to write the judgment, especially as he had by that time beennearly a year at the Bar and was engaged in a busy practice.
Learned counsel for the appellant drew our attention to some featuresof the judgment which he submitted indicate that the Judge’s recollectionof the niceties of the evidence had faded. In the course of his judgmentthe learned Judge himself says that “the evidence in the case becameso evenly balanced that I am not ashamed to confess that the decisionof this case has given me considerable anxiety and difficulty. ”
Learned counsel for the appellant emphasised the point that the learnedJudge had described the evidence of two witnesses who gave importantevidence for the appellant as colourless, a description which he submittedtheir evidence did not merit. He farther submitted that the wav in
v
which the learned Judge had dealt with their evidence supports his con-tention that the evidence was not vivid in the Judge’s mind at the timehe wrote the judgment. As a further indication of the fact that theJudge’s recollection of the evidence was faint learned counsel drew ourattention to his observations about the attitude of the defendant towardsthe female servants, which he submitted were unsupported by theevidence.
4BASNAYAKE, C. 3.—Saravanamuitu v. Saravanamxdiu
* ——- ~
.. In regard to the first point I am of opinion that the judgment is not inlaw a judgment of the court as at the time he recorded his judicial deci-sions the Judge did not hold judicial office and was not qualified to expressa valid judicial decision. To perform the functions of a Judge a personmust 'hold' that office. {^KaTietgey v. OohoovdUe *; Davidson v. Silva2).
Section 185 -of the Civil Procedure Code empowers a Judge to pronouncea judgment written by his predecessor, but not pronounced. It is evidentfrom the words “ hut not pronounced ” that the section contemplatesthe case of a judgment written by a Judge while holding judicial officeand at a time when he is qualified to pronounce it, and not to a judgment-written after he ceases to hold such office. The view I have taken findssupport in the cases of TJtamotharampillai v. Ponniah 3 and Wijeseherav. Dabarera et alA In. the former case De Sampayo J. held that a judgmentwritten after a Judge had ceased to hold judicial office is not a judgmentthat can be validly pronounced under section 185 by his successor. DeSampayo J. also indicates that there are other decisions of this court tothe same effect although he has not referred to them by name. In thelatter case Schneider J. after making the following observation—
■** Having regard to the provisions of Sections 184 to 187 of the CivilProcedure Code the law seems to he that the judgment must be writtenby the Judge who has heard the case. If he writes this judgment while- still holding office his successor may pronounce it. ”
proceeded to state—
£rMr. Seymour evidently wrote out his judgment after he ceasedto be the District Judge of Chilaw and before he was appointed as Addi-tional District Judge for the 14th of May 1920, when his order waspronounced by Mr. Coomaraswamy the then District Judge. ”
This statement cannot be reconciled with the earlier part of bis judgmentwherein .he states—
“His order in writing-signedhy him and dated the 28th of Pebraary1920 was delivered by his successor on the 14th of May 1920. Mr.Seymour ceased to act as District Judge of Chilaw after the 28th ofFebruary 1920. He was gazetted as Additional District Judge ofChilaw for the 14th of May to enable his order to he pronounced. ”
The other decision of this court to which reference should be made isthe case of Fernando v. The Syndicate Boat Company Limited5. Thatdecision proceeds on section 88 (then section 89) of the Courts Ordinance.It does not appear that the Judge wrote his judgment at a time when hehad ceased to hold office. He ceased to hold office after hearing theevidence. He was again appointed to the office of District Judge and onthat day he pronounced his judgment. The report does not show “that
2 horenz Reports 49.3 1 C. W. It. 68.
{1893) 2 S. O. B. 10.* {1921) 3 C. i. B. 111.
* {1896) 2 N. L. B. 206.
STNTM h'.TAMBY, J.—Saravanamuttu v. Saravant^mUtu
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the Judge performed any judicial function at a time when he was notqualified to do so.
In regard to the second point I am of opinion that the submission ofcounsel that the long delay has prejudiced the appellant is not withoutjustification. The learned Judge appears to have not only lost theadvantage be had of seeing and hearing the witnesses, hut his recollectionof the fine points in the evidence also seems to have become faint at thetime he wrote the judgment.
The judgment of the learned District Judge is therefore set aside andthe case is sent back for hearing de novo. As the successful party is thehusband I make no order for costs.
SlSTBTETAMBY J.
I agree with the order which my Lord the Chief Justice proposes tomake in this case.
In a case which turns more on the impressions created by the conductand evidence of witnesses as in divorce proceedings, than on the cons-truction of documents as in commercial cases, the importance of making adecision when the facts and the impressions on the mind of the Judge arefresh and clear cannot be too strongly stressed. In this case the longdelay has been demonstrated to have manifestly affected theJudge in arriving at his findings and I agree that on this ground alone thejudgment cannot be allowed to stand. I also agree that a judgment,written by a Judge who was :t functus officio ” on the day on which hesigned and dated it is invalid.
Hor the decision of this case it is not necessary to go any further but Iunderstand from my Lord the Chief Justice that he proposes to state hisviews on the validity of a judgment prepared by a Judge while he was“ functus officio ” hut signed and dated by him on a day on which hewas specially gazetted to deliver the judgment. With great respect Xfind myself unable to agree with the views which my Lord the ChiefJustice* holds upon this question ; and, lest it be thought that I agree-with them, I desire to place my own opinion on record.
In my view a judgment prepared by a Judge while he was “ functusofficio ” would be valid if he signs and' dates it on the day on whichhe is subsequently gazetted as a Judge of the Court to deliver it. Bysigning and dating his judgment on the day on which he is appointed, aJudge merely adopts and confirms qua Judge an opinion he had formedwhile he was not a Judge of that particular court. In my opinion itmakes no difference that he was holding judicial office in some otherjudicial division : so fax as the court having jurisdiction over the case isconcerned such a person is in no different position to that of anyordinary citizen.
2*J. N. B, 4093 (9/59)
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STN1ST F.T A IVrRV, J.—Saravanamuttu v. Saravanamuttu
The case of WijeseJeera v. Dabmrera et al.1 is relevant in this connection.It was sought to obtain a declaration that an order made in the circum-stances detailed by Schneider, J. was invalid. The order was held to bevalid and in this- connection- Schneider, J. made the following observa-tions :—
“ Having regard to the provisions of Sections 184 to 187 of the CivilProcedure Code the law seems to he that the judgment must be writtenby the Judge who has heard the case. If he writes this judgment
while still holding office his successor may pronounce it
Mr. Seymour evidently wrote out his judgment after he ceased to be theDistrict Judge of Chilaw and before he was appointed as AdditionalDistrict Judge for the I4th of May, 1920, when his order was pronouncedby Mr. Coomaraswamy the then District Judge. If Mr. Seymourhimself had delivered his judgment on the 14th of May 1920 and signedand dated it no objection could have been taken as he was AdditionalDistrict Judge on that day. That he should have written out hisjudgment beforehand and brought it to the Court should make nodifference whatever. ”
In Fernando v. The Syndicate Boat Co. Ltd. 2 the facts show thatMr. Grenier heard a case when he was acting District Judge, Colombo.When he ceased to be acting District Judge he had not delivered hisjudgment. Subsequently he was appointed Additional District Judgefor one day for the express purpose of delivering judgment. Bonser,
J. held that the judgment was valid.
These cases show that what matters is that the person who writesthe judgment should be a Judge of the Court when he hears thecase as well as on the day on which he signs and dates it for the purposeof delivery. I am aware that this practice has been in existence for quitea- long time and that there are several judgments in existence todaywhich have been signed and dated by Judges in similar circumstances.They have always been regarded as perfectly valid. To take any otherview may have the effect now of rendering all these judgments invalidand ineffective. Even if this practice is in fact incorrect I do not thinkit- desirable that at this late date it should be reviewed or dissented from.In. any event whatever views we express upon this question, having regardto the matters we are called upon to decide in this case, would, it seemsto- me, be merely obiter.
1 f vonf • /t y777
-tj V«IttCt ill
Judgment set aside.{2S9S) 2 N. 2j. it. 205.
SIINTSTETAMBY, J.—Saravanamuttu v. SaravancumOtu
5
the Judge performed any judicial function at a time when he wag notqualified to do so.
In regard to the second point I am of opinion that the submission ofcounsel that the long delay has prejudiced the appellant is not withoutjustification. The learned Judge appears to have not only lost theadvantage he had of seeing and hearing the witnesses, but his recollectionof the fine points in the evidence also seems to have become faint at thetime he wrote the judgment.
The judgment of the learned District Judge is therefore set aside andthe case is sent back for hearing de novo. As the successful party is thehusband I make no order for costs.
SlNSTJBTAaiBY J.
I agree with the order which my Lord the Chief Justice proposes tomake in this case.
In a case which turns more on the impressions created by the conductand evidence of witnesses as in divorce proceedings, than on the cons-truction. of documents as in commercial cases, the importance of making adecision when the facts and the impressions on the mind of the Judge arefresh and clear cannot be too strongly stressed. In this case the longdelay has been demonstrated to have manifestly affected theJudge in arriving at his findings and I agree that on this ground alone thejudgment cannot be allowed to stand. I also agree that a judgment,written by a Judge who was “ functus officio ” on the day on which hesigned and dated it is invalid.
For the decision of this case it is not necessary to go any further hut Iunderstand from my Lord the Chief Justice that he proposes to state bisviews on the validity of a judgment prepared by a Judge while he was“ functus officio ” but signed and dated by him on a day on which herwas specially gazetted to deliver the judgment. With great respect Ifind myself unable to agree with the views which my Lord the ChiefJustice holds upon this question ; and, lest it be thought that I agreewith them, I desire to place my own opinion on record.
In my view a judgment prepared by a Judge while he was " functusofficio ” would be valid if he signs and dates it on the day on whichhe is subsequently gazetted as a Judge of the Court to deliver it. Bysigning and dating his judgment on the day on which he is appointed, aJudge merely adopts and nonfirms qua Judge an opinion he had formed-while he was not a Judge of that particular court. In my opinion itmakes no difference that he was holding judicial office in some otherjudicial division : so far as the court having jurisdiction over the case isconcerned such a nerson is in no different onsition to that of anv
nr^ino nr
2*J. N. H 4093 {9/59)
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SINUBTAMBT, J.—Saravanamuttu v. Saravanamuttu
The case of Wijesejeera v. Dabarera et al.1 is relevant in this connection.It was sought to obtain a declaration that an order made in the circum-stances detailed by Schneider, J. was invalid. The order was held to bevalid and in this connection Schneider, J. made the following observa-tions :—
“ Having regard to the provisions of Sections 184 to 187 of the CivilProcedure Code the law seems to be that the judgment must be writtenby the Judge who has heard "the case. If he writes this judgment
while still holding office his successor may pronounce it
Mr. Seymour evidently wrote out his judgment after he ceased to be theDistrict Judge of Chilaw and before he was appointed as AdditionalDistrict Judge for the 14th of May, 1920, when his order was pronouncedby Mr. Coomaraswamy the then District Judge. If Mr. Seymourhimself had delivered his judgment on the 14th of May 1920 and signedand dated it no objection could have been taken as he was AdditionalDistrict Judge ou that day. That he should have written out hisjudgment beforehand and brought it to the Court should make nodifference whatever. 33
In Fernando v. The Syndicate Boat Co. Ltd. 2 the facts show thatMr. Grenier heard a case when he was acting District Judge, Colombo.When he ceased to be acting District Judge he had not delivered hisjudgment. Subsequently be was appointed Additional District Judgefor one day for the express purpose of delivering judgment. Bonser,
J. held that the judgment was valid.
These cases show that what matters is that the person who writesthe judgment should be a Judge of the Court when he hears theease as well as on the day on which he signs and dates it for the purposeof delivery. I am aware that this practice has been in existence for quitea long time and that there are several judgments in existence todaywhich have been signed and dated by Judges in similar circumstances.They have always been regarded as perfectly valid. To take any otherview may have the effect now of rendering all these judgments invalidand ineffective. Even if this practice is in fact incorrect I do not thinkit: desirable that at this late date it should be reviewed or dissented from.In any event whatever views we express upon this question, having regardto the matters we are called upon to decide in this case, would, it seemsto me, be merely obiter.
Judgment set aside.
3 (1921) 3 G. L. Ren. 111.
(1896) 2 N. I,. R. 206.