scope of section 773 of the CPC
This partition case
proceeded to trial on 52 points of contest and the District Judge dismissed the action
without answering any one of them. On appeal, the High Court set aside the judgment of the DC
and directed to deliver a fresh judgment on the evidence already led, if necessary after hearing
additional evidence.
It was held by the SC that Section 773 does not confer any power to the Appellate Court to order the trial judge to write a fresh judgment upon the evidence already led at the trial.
It was held that The High Court is only
empowered to order a new trial or further hearing as justice may require. Hence, the said order of the High Court, to wit; to write a fresh judgment upon the
evidence already led at the trial, contravenes Section 773 of the Civil
Procedure Code.š
š
š
UPALY ABEYRATHNE, J.
The original Plaintiff
instituted an action in the District Court of Horana against the Defendant
Respondent Respondents seeking to partition a land called Bomaluwe Godella
containing in extent of 02 acres as described in the schedule to the plaint.
04th and 17th Defendants, 6th Defendant, 7A to 13th Defendants, 26th 27th and
30th Defendants, 30th Defendant and 43rd Defendant have filed separate
statements of claims seeking to partition the said land as averred in their
statements of claims. Accordingly, the case proceeded to trial on 52 issues. At
the end of the trial, the learned District Judge has dismissed the Plaintiffās
action without answering the said 52 issues framed by the parties.
Being aggrieved by the
said judgment dated 23.09.2004 the substituted Plaintiff Appellant Respondents
(hereinafter referred to as the Respondent) preferred an appeal to the Court of
Appeal. Said appeal was heard and concluded by the High Court of Civil Appeal
of the Western Province holden at Kalutara and the High Court by its judgment
dated 23.09.2004 has set aside the said judgment of the learned District Judge
directing him to deliver a fresh judgment on the evidence already led. In
addition, the High Court has concluded that the District Judge may hear
additional evidence if necessary, in order to arrive at a reasonable
conclusion.
The 26th 27th and 30th
Defendant Respondent Appellants (hereinafter referred to as the Appellants)
sought leave to appeal to this court from the said judgment of the High Court
and leave was granted on the questions of law set out in paragraph 18(i), (ii),
(v) and (vi) of the petition dated 29.02.2012.
At the hearing of this
appeal, it was contended before this court that the High Court has no power
upon hearing an appeal to direct the trial judge to deliver a fresh judgment
upon the evidence already led in the case. I first deal with this question of
law raised at the hearing. Section 773 of the Civil Procedure Code deals with
the provisions with regard to the powers of the Court of Appeal upon hearing of
an appeal. Section 773 reads thus;
āUpon hearing the appeal, it shall be
competent to the Court of Appeal to affirm, reverse, correct or modify any
judgment, decree or order, according to law, or to pass such judgment, decree
or order therein between and as regards the parties, or to give such direction
to the court below, or to order a new trial or a further hearing upon such
terms as to Court of Appeal shall think fit, or, if need be, to receive and
admit new evidence additional to, or supplementary of, the evidence already
taken in the court of the first instance, touching the matters at issue in any
original cause, suit or action, as justice may require or to order a new or
further trial on the ground of discovery of fresh evidence subsequent to the
trial.ā
Needless to state here,
that Section 773 does not confer any power to the Appellate Courts, upon
hearing of appeal, to order or to direct the trial judge to write a fresh
judgment upon the evidence already led at the trial. The High Court is only
empowered to order a new trial or further hearing as justice may require. Hence
the said order of the High Court, to wit; to write a fresh judgment upon the
evidence already led at the trial, contravenes Section 773 of the Civil
Procedure Code.
The learned counsel for
the Appellant further submitted that the learned District Judge has failed to
answer the issues framed by both parties. The judgment manifests that the
issues framed by the parties have not been answered by the learned District
Judge. He has stated in the judgment dated 23.09.2004 that āsince the pedigree
has not been proved the land cannot be partitioned. Therefore, I hold that
issues No 1 to 52 do not arise. For the above reasons, I dismiss the plaint.ā
I regret to note that
the learned District Judge has blatantly ignored the provisions contained in
Section 187 of the Civil Procedure Code. The paramount duty of the trial judge
as required in law is to answer all the issues accepted by court. Section 187
of the Code stipulates the requisites of a judgment. In terms of the said
Section, the judgment shall contain a concise statement of the case, the points
for determination, the decision thereon, and the reasons for such decision; and
the opinions of the assessors (if any) shall be prefixed to the judgment and
signed by such assessors respectively.
Hence a trial judge
when writing a judgment should safely consider the points for determination and
should record his decision thereon. He should answer the points of contest
after due evaluation of the evidence led before court. Issues accepted by trial
court should not be left unanswered. Trial judge is bound by a legal duty under
section 187 of the Civil Procedure Code to deliver a proper and complete
judgment. In the case of Dona Lucihamy v. Ciciliyanahamy 59 NLR 214, L. W. De
Silva A.J. observed that āThere were 12 issues raised in this case. Some of
them do not bring out the real points of contest. The learned District Judge
has stated in his judgment: āAll the issues that have been raised can be
crystallized in this one contestā, that is, whether the land in suit is
Dawatagahawatte or Hedawakagahawatte. In the result, the evidence germane to
each issue has not been reviewed or discussed. No reasons precede or follow the
answers which are mostly "yes" or "no" or "does not arise."
Such a record has not disposed of the matters which the Court had to decide.
Bare answers to issues or points of contest whatever may be the name given to
them-are insufficient unless all matters which arise for decision under each
head are examined. Section 187 of the Civil Procedure Code (Cap. 86) is in the
following terms "The judgment shall contain a concise statement of the
case, the points for determination, the decision thereon, and the reasons for
such decision."
In the case of
Warnakula Vs. Ramani Jayawardane [1990] 1 SLR 206 it was held that āBare
answers to issues without reasons are not in compliance with the requirements
of s. 187 of the Civil Procedure Code. The evidence germane to each issue must
be reviewed or examined. The judge must evaluate and consider the totality of
the evidence. Giving a short summary of the evidence of the parties and
witnesses and stating that he prefers to accept the evidence of one party
without giving reasons are insufficient.ā
For the forgoing reasons,
I hold that the impugned judgment of the learned District Judge dated
23.09.2004 contravenes the provisions contained in Section 187 of the Civil
Procedure Code. The failure of the trial judge to examine and to evaluate
evidence in order to arrive at a correct conclusion answering the issues raised
at the trial has caused prejudice to the substantial rights of the parties.
In the circumstances, I
hold that the High Court is correct in law concluding that the said judgment of
the learned District Judge should stand dismissed. Also, I hold that the order
of the High Court to remit the case back to the trial court for a delivery of
fresh judgment on the evidence already led is bad in law. Hence, I vary the
said judgment of the High Court by setting aside the said portion, namely;
ārefer to a fresh judgment by the learned District Judge basing on the evidence
already adduced at the trial.ā I order a trial denovo. If the parties are
willing to adopt the evidence already led, the learned District Judge is
directed to adopt the evidence already led and to proceed with the trial from
that point onwards. Parties are at liberty to adduce further evidence if
necessary. Subject to the said variations the appeal is dismissed. I make no
order with regard to costs.
Appeal dismissed.
Judge of the Supreme
Court
PRIYASATH DEP, PC, CJ.
I agree.
Judge of the Supreme
Court
SISIRA J DE ABREW, J.
I agree.
Judge of the Supreme
Court
See below for details
SC
/ Appeal / 162/2012
SC/HCCA/LA/77/2012
WP/HCCA/KAL/125/2004
(F)
DC/HORANA/3449/P
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