021-NLR-NLR-V-22-WEERASURIYA-v.-CROOS.pdf
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Present: Bertram C. J. and De Sampayo J.
WEERASURIYA v. OROOS.
26—D. C, (Inty.) Negotfibo, 14,038,
Action for commission for sale of land—Application by defendant that alldocuments be disclosed by plaintiff.
The plaintiff sued defendant, inter alia, for remuneration for hisservices in connection with the sale, of an estate. The defendantapplied that plaintiff be required to declare by affidavit all thedocuments relating to the alleged promise.
Held, that in the circumstances of this case the defendant wasnot entitled to get an order of discovery.
The Court has a discretion to refuse discovery of documentswhere it can see that no good is reasonably to be expected fromordering it; whether any good is to be expected can be ascertainedby looking at the pleadings.
HPHE facts appear from the following order of the District Judge(W. S. de Saram, Esq.):—
The defendant has asked for an order, under section 102 of the CivilProcedure Code, on the plaintiff to declare, by affidavit, all and everydocuments which are or have been in his possession or power relatingto the promises alleged in paragraph 5 of the plaint Sled. It seemsclear that if there are any documentary evidence to any of the agreementor promise the defendant should beawareofthem,andshouldbeabletoplead accordingly without discovery. In my opinion section 102 is nobintended to afford a means of discovery of what documentary evidenoethe other party is in possession of to perhaps enable the applicantto'Shape his defence accordingly. Moreover, section 102 applies todocuments, &c., relating to any matter in question in the action whichwould appear to refer to question in' issue. My attention has beendrawn to the case of Oontajina Franciscu. reported at 11 Q. B, D,55, 63, but, unfortunately, those are not available here.
Tt would appear that the order made on February 5, 1920, regardingthe filing of an affidavit was made in error, because the motion hasendorsement by plaintiff’s proctor cf receipt of notice for 11th instant(t.e., for to-day). I would, therefore, vacate the order ctf February 5,1920, and I would refuse to order affidavit as applied for. Costs of thisinquiry to be borne by applicant (defendant).
The relevant parts of the plaint were as follows :—
For a First Cause of Action,
The defendant was from about March, 1916, at all.times materialto this action a client of the plaintiff, and constantly sought plaintiffsadvice and assistance in regard to the raising of loans on mortgage ofhis lands, the sale of lands and purchase of lands, the drawing up ofdeeds, the investigation of title, and other matters.
1920.
11920.
Weeraauriyav. Oroos
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Ia or about October, 1918, the defendant entrusted plaintiff withthe sale of one of the defendant’s coconut estates called St. John’s inKiniyama, in the Kurunegala District, and the plaintiff negotiated andarranged the sale of the said estate for the defendant, inspecting theproperty at defendant’s request with a buyer, arranging with themortgagees for a cancellation of a mortgage then existing granted bythe defendant which the mortgagees had the right of holding for a longerterm, procuring the title deeds from the mortgagees, &c., and procuringfor the defendant a price above that offered by any other bidder at thetime, to wit, Rs. 160,000.
The defendant agreed to pay the plaintiff, as remuneration forhis services as set forth in the foregoing paragraph, a fee of 2 per cent,on the purchase money equivalent to Rs. 3,200.
The sale arranged by the plaintiff was effected in or abort i*November 5, 1918.
For an Alternative Cause of Action.
. 7. The defendant has, by reason of the promises set forth in the 4thparagraph of the plaint, become liable to pay to plaintiff reasonableremuneration for plaintiff’s services, and the plaintiff claims Rs. 3.200as such reasonable remuneration.
For a Second Cause elf Action.
The defendant in or about November, 1918, sought plaintiff’sadvice in regard to an action threatened by Messrs. E. John & Co., ofColombo, with regard to defendant’s alleged failure to carry out anagreement to sell the said estate to them, end the plaintiff conferredwith the defendant and his agents on several occasions, consultedcounsel, on several occasions, drafted letters for defendant to the saidMessrs. E. John & Co. and their lawyers, Messrs. Julius & Creasy, andafter mucl^labour spent in this connection effected a compromisepreventing an action, and saving the defendant from any claim by thesaid Messrs. E. John & Co. for compensation or damages.
In respect of the aforesaid transaction the plaintiff claims a sumof Rs. 522*50 for expenditure incurred and reasonable remuneration.
E, W. Jayawardene (with him E. G. P. Jayatileke), forthe appellant.
J. S. Jayawardene, for the respondent.
July 23,. 1920. Bertram C.J.—
This is an appeal from an order of the District Judge of Negomborefusing to order an affidavit of documents. The plaintiff sued thedefendant on various causes of action, and in his plaint By para-graph 5 he alleged that the defendant had agreed to pay him asremuneration for his service in connection with the sale of an estatea- fee of 2 per cent, of the purchase money. The defendant has nowapplied to the Court that the plaintiff be required to declare byaffidavit all and every documents which are or have been in hispossession or power relating to the promise alleged in paragraph 5of the plaint in the case. No reason apparently was adduced forthis application. It was not explained to the Coirt what would bethe result of it. The plaintiff had not attached a list of documents to
1920.
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his plaint. It is entirely within the discretion of the Court whethersuch an application should be acceded to. Lindley L.J. in In reWills' Trade Marks1 remarked that the tendency to extend thepower of the Court to order discovery in cases of this natureought to be very carefully checked, and certainly not encouraged.Nowadays, he added, a man cannot run over another in the streetwithout there being an application for an affidavit of documents.In Downing v. Falmouth United Sewerage Board2 Cotton L.J.exple^ned the principles in force in England. He said that the rulewas intended to give the Court a discretion to refuse discovery ofdocuments where it can see that no good is reasonably to beexpeoted from ordering it, and he observed that 'whether any goodis to be expected it can be ascertained by looking at the pleadings;that theaCourt ought not to require affidavits on the point, but that,if evidence has been previously taken, the Court may look at it toinform its mind as to whether there is any prospect of productionof documents being useful.
I do not think from looking at the pleadings in this case thatthere is anything to indicate that an affidavit of documents wouldhave any useful result. I, therefore, think that the District Judgehas exercised his discretion very wisely, and I would dismiss theappeal, with costs.
De Sampayo J.—Lagree.
Bertram
O.J.
Wterasuriyav. Croot
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Appeal dismissed.