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DHARMARATNE
VS
DASSENAIKEAND OTHERS
Sri Lanka Law Reports
2006 - Volume 3 , Page No - 130
COURT OF APPEAL.
SOMAWANSA., J (PICA).
WIMALACHANDRA. J.
CALA 304/2004. (LG)
DC COLOMBO 16858/L.
MARCH 17,2006.
Judicature Act, 2 of 1978 Amended by Act No.27 of 1999- trial de novo-Section
48 - Case concluded before a different judge - Could the judgment be written
by another - Applicability of Section 48 - Civil Procedure-Code' Section 184
and Section 185,"
The judgment was fixed for 02.09.2003. Before the judgment could be
delivered the trialj judge was elevated as a judge of4he High Court and
proceeded abroad on leave. On 12.03.2004 the successor in office as District
judge transferred the case to the Additional District judge for the
purpose of delivering the order. When the case was called the 1st and 2nd
defendants made an application to Court that the case be heard de novo. The
plaintiff objected. The Additional District judge refused the application for
a trial de novo and fixed the case for judgment.
HELD:
(1 ) In view of the provisions of
section 48 of the Judicature Act - as amended a party to an action has
no right to demand a trial de novo but where an application is made for a
trial de novo there is a discretion vested in the judge to decide whether a
trial de novo should be ordered or not.
(2) The 1st defendant - respondent has set up a claim on the
basis of prescriptive title and the 2nd defendant- petitioner claimed on
a title deed coming from the 1st defendent. The claim of prescription
depends to a very great extent upon oral testimony which in turn makes the
impression created by the witness an important factor in determining the
question of fact.
(3) The' District judge has erred in law in not considering that the case for
the defendants mainly depend on evidence and not documents, and the District
judge should have given consideration to this 'aspect of the matter when he
was apprised of these facts, ".
Per Andrew Somawansa. J, (PICA)
" Discretion given to a judge must be exercised according to the rules
of reason and justice, not according to private opinion, according to law and
not hum our, its exercise must be uninfluenced by irrelevant consideration
must not be arbitrary, vague and fanciful but legal and regular, and it must
be exercised within the limit to which an honest man competent to discharge
his office ought to confine himself'.
APPLICATION for leave to appeal from an order of the District
judge of Colombo., with leave being granted.
Cases referred to :
(1 )Mohota vs Sarana - 62 CLW 37
(2)Saravanamuttu vs Saravanamuttu - 61 NLR 1
(3)Kulathunga vs Samarasinghe 1990 - 1 Sri LR 244
(4)Edwin vs De Silva - 62 NLR 44
( 5)Sharp vs. Wakefield 1891 AC 173 at 179
(6)Wijewardena vs Lenora - 60 NLR 457 at 463
(7)Osenton and Co. vs. Johnson 1941 2 All ER 245 at 250
Parakrama Agalawatte with M. de Gunatilake for defendant - petitioner. Gamini
Marapana PC with Kushan de Alwis for plaintiffs - respondents.
Cur adv. vult.
March 17, 2006.
ANDREW SOMAWANSA, J. (PICA).
This is an application seeking leave to appeal but the prayer does not
specify from which order leave is sought, thereafter to hear the appeal and
make order that the instant case be heard de novo. The 2nd defendant
petitioner also supported and obtained interim relief staying proceedings in
the District Court operation of which has been extended from time to
time.
As per minute dated 21.09.2004 leave to appeal has been granted on the
following question:
Has the learned Additional District judge correctly exercised his
discretion in terms of section 48 of the Judicature Act when he refused the
application for a trial de novo?
The relevant facts are, at the conclusion of the trial the learned
District judge fixed the date of pronouncement of judgment for 02.09.2003.
However, before the judgment could be delivered the learned District judge who
heard the case was elevated as a judge of the High Court and proceeded abroad
on leave. On 12.03.2004 the successor in office as District judge of Colombo
transferred the case to the learned Aditional District judge of Colombo
sitting in Court NO.2for the purpose of delivering judgment on the evidence
already recorded. On the same day when the case was called in Court No.2
counsel for the 1st and 2nd defendants made an application to Court that the
case be heard de novo in as much as the entire trial had been concluded
before the predecessor in office of the District Judge of Colombo. Counsel
for the plaintiff - respondent objected to the said application on the basis
that rights of a party to move for a trial de novo had been taken away by the
Judicature (Amendment) Act NO.27 of 1999. Parties were permitted to file
written submissions and the learned Additional District judge by his order
dated 03.07.2004 refused the application for a trial de novo and fixed
the case for judgment on the evidence already recorded holding that Court has
power to hear the case de novo, if Court considers it appropriate but that
great prejudice will be caused specially to the plaintiff- respondent if the
trial de novo takes a long time to conclude. In appears that it is from this
order that the 2nd defendant- petitioner is seeking to appeal.
Counsel for the 2nd defendant - petitioner submits that the learned
District Judge erred and/or misdirected himself when he arrived at the
finding that great prejudice will be caused especially to the plaintiffs by
the delay involved in the event of a trial de novo. He submits that even though
the action had been filed as far back as 1994, the trial had commenced only
by about 1999, the period in between having been consumed by the various
pre-trial stages. The hearing of the said trial had concluded prior to
02.09.2003. If a trial de novo were to be held, no time would be spent on
pre-trial stages as those steps have already been taken and no inordinate
delay is likely under normal circumstances. No greater prejudice if any will
be caused to the plaintiff than to the defendants by the delay involved in
trial de novo and that the defendants are not in any way responsible for the
present delay in concluding the case.
Counsel also submits that the learned Additional District Judge erred
and/or misdirected him. self when he arrived at the finding that the
authorities cited on behalf of the 1st and 2nd defendants have no application
as they have all been decided prior to the enactment of the Judicature
(Amendment) Act No. 27 of 1999 which amended the proviso to Section 48 of the
Judicature Act NO.02of 1978. It is submitted that the said authorities which
laid down as being imperative the requirement that the judge who saw and
heard the witnesses should write the judgment while the impression created by
the witnesses and the finer points of the evidence was still fresh in his
mind, are judicial interpretations not of section 48 of the Judicature Act
but of sections 184 and 185 of the Civil Procedure Code and that they
continue to be good law. I would say there is force in this argument. It
would be useful at this stage to examine section 48 of the Judicature Act
No.02 of 1978 as amended by Act NO.27of 1999 which reads as follows:
"In the case of death, sickness, resignation, removal from
office, absence from Sri Lanka, or other disability of any judge before whom
any action, prosecution, proceeding or matter, whether on any inquiry
preliminary to committal for trial or otherwise, has been instituted or is
pending, such action, prosecution, proceeding or matter may be
continued before the successor of such judge who shall have power to act on
the evidence already recorded by his predecessor, or partly recorded by his
predecessor and partly recorded by him or, if he thinks fit, to re-summon the
witness and commence the proceedings afresh:
Provided that where any criminal prosecution, proceeding or matter
except on an inquiry preliminary to committal for trial) is continued before
the successor of any such judge, the accused may demand that the witnesses be
re-summoned and re-heard. "
It could be seen that in view of the provisions contained in section
48 of the Judicature Act NO.02 of 1978 as amended a party to action have no
right to demand a trial de novo but where an application is made for a trial
de novo there is a discretion vested with the judge to decide whether a trial
de novo should be ordered or not.
It is contended by counsel for the plaintiffs - respondents that the
only basis upon which the impugned order of the learned District Judge could
be challenged by the 2nd defendant - petitioner is on the basis that he had
not properly exercised the discretion vested in him by section 48 of the
Judicature Act NO.02 of 1978 as amended. But if Court were to examine the
several averments in the petition tendered by the 2nd defendant - petitioner
Court will observe that the 2nd defendant does not challenge the validity of
the order on that score at a!1.This appears to be an incorrect statement for
it appears that grounds of appeal urged in paragraph 12(c) and (d) pertain to
the question of exercise by the learned District judge of the discretion
conferred by the aforesaid section 48 of the Judicature Act No.27 of 1999 as
amended. The aforesaid paragraph 12(c) and (d) reads as follows:
" As is reflected in their respective answers "P2" and
"P3" the defence of the 1st and 2nd defendants was based upon a
claim of prescription which, it is submitted, by its very nature depends upon
oral testimony which, in turn makes the impression created by witnesses an
important factor in determining questions of fact. It is respectfully
submitted that the said principle which has hitherto been applied by the
Appellate Courts of this county will be completely negated in the event of
the learned successor judge who has not seen even a single witness testifying
were to write the judgment in terms of the order"P8"
It is submitted with respect that the learned Additional District
judge erred and/or misdirected himself when he arrived at the finding that
the authorities cited on behalf of the 1st and 2nd defendants have no
application as they had all been decided prior to the enactment of the
Judicature (Amendment) Act No.27 of 1999 which amended Section 48 of the
Judicature Act No. 02 of 1978 It is submitted that the said' authorities
which laid down as being imperative the requirement that the judge who saw
and heard the witnesses should write the judgment while the impression
created by the witnesses and the finer points of the evidence was still fresh
in his mind are judicial interpretations of Sections 184 and 185 of the Civil
Procedure Code and continue to be the law and are applicable in respect of
the present case."
The aforesaid averments would show that the 2nd defendant
-petitioner is in fact challenging the validity of the impugned order.
It is to be seen that the 1st defendant - respondent has set up a
claim on the basis of a prescriptive title and where as the 2nd defendant -
petitioner claimed on a title deed coming from the 1st defendant In the
circumstances the case of the 2nd defendant- petitioner had to stand or fall
on the success or otherwise of the 1st defendant's defence. The claim of
prescription depends to a very great extent upon oral testimony which in turn
make the impression created by the witnesses an important factor in
determining questions of fact. Basnayake, C. J. in his decision in Mohota vs.
Sarani(1) upheld the view that where the decision in a case depends on oral
testimony the impression created by witnesses on the judge are important;
again in the case of Saravanamuttu vs. Saravanamuttu(2).
In a case which turns on the impressions created by the oral evidence
of witnesses it is important that the trial judge should write his judgment
without undue delay.
Also in the case Kulathunga vs. Samarasinghe (3)
A judgment delivered two years and four months after the tender of
written submissions cannot stand. The case depended on the oral testimonies
of witnesses. The impression created by the witnesses on the judge is bound
to have faded away after such a long delay; the learned Judge was bound to
have lost the advantage of the impressions created by the witnesses whom he
saw and heard and his recollections of the fine points in the case would have
faded from his memory by the time he comes to write the judgment.
In Edwin vs. de Silva (4)Court held that:
"Even if the judge refreshed his memory of the facts by reading
the typescript of the evidence after such a long interval of time he is bound
to have lost the advantage of seeing and hearing the witness giving evidence
and the impression created by them could no longer be vivid in his mind. A
judgment of a judge of first instance based on a mere reading of the
typescript is not of the same value to this Court as a judgment
delivered while the recollection of the trial and of the demean our and
attitude of the witnesses and the impression created by them on him are fresh
in his mind. In our view the judgment must be set aside and the case should
go back for a retrial"
It is contended by counsel for the plaintiff - respondent that the
learned District judge has taken into consideration the aforesaid cases cited
and has correctly held that the said cases have been decided prior to
the amendment of the Judicature Act and therefore has no relevance to the
instant action. I am unable to agree with this submission for two reasons.
The first reason being that the aforesaid cases dealt with not Section 48 of
the Judicature Act but with Sections 184 and 185 of the Civil Procedure Code
and the other being that the principle laid down in those cases hold good law
even now and Courts have continued to act and follow the aforesaid decisions.
However the situation would be quite the opposite if the evidence to be
considered by Court consists mainly of documentary evidence in which case the
principle laid down in the aforesaid cases will have no relevance for the
succeeding judge only need to examine the documentary evidence placed before
Court. In the instant action, the case for the defendants mainly depend on
evidence and not on documents and the learned District judge should have
given consideration to this aspect of the matter when he was appraised of
these facts. I would say the learned District judge erred in law in not considering
this important factor when exercising the discretion given to him in terms of
Section 48 of the Judicature Act as amended.
While I agree with the view expressed in the case of Sharp vs.
WakefielJ5) at 179 that discretion given to a judge must be exercised
according to the rules of reason and justice, not according to private
opinion; according to law and not hum our. Its exercise must be uninfluenced
by irrelevant consideration, must not be arbitrarily, within the limit
to which an honest man competent to discharge his office ought to confine
himself.
In the instant action it is very clear that the learned District Judge
has exercised its discretion not according to the rules of reason and
justice, but taking into account irrelevant matters such as the great
prejudice that would be caused specially to the plaintiffs -respondents by
the delay involved in the evidence of a trial de novo and the length of time
the trial in the instant action had taken viz : nearly 10 years from the date
of institution of the action. Further, the learned District judge has come to
a conclusion that the aforesaid decisions cited by the 2nd defendant -
petitioner has no application to the. instant application for a trial de
novo. These are the matters that has persuaded the learned District Judge to
exercise his discretion in refusing the application of the 2nd
defendant-petitioner for a trial de novo.
Counsel for the plaintiffs -respondents has cited two other cases
in support of his contention that this Court should not interfere with
the exercise of the discretion vested in the original Court.
The first case being Wijewardena vs. Lenora(6) at 463 per Basnayake,J.
"The mode of approach of an Appellate Court to an appeal
against an exercise of discretion is regulated by well established
principles. It is not enough that the judges composing the appellate Court
consider that, if they had been in the position of the trial Judge, they
would have taken a different course. It must appear that some error has been
made In exercising the discretion. It must appear that the judge has acted
illegally, arbitrarily or upon a wrong principle of law or allow extraneous
or irrelevant consideration to guide or affect him, or that he has mistaken
the facts, or not taken into account some material consideration. Then
only can his determination be reviewed by the appellate Court."
The case is Osenton and Co. Vs. Johnston(7)at 250 wherein the Court
observed:
"The law as to the reversal by a Court of Appeal of an order made
by the judge below in the exercise of his discretion is well established, and
any difficulty which rises is due only to the application of well settled
principles is an individual case. The appellate tribunal is not at
liberty merely to substitute its own exercise of discretion for the
discretion already exercised by the judge. In other words, appellate
authorities ought not to reverse the order merely because they would
themselves have exercised the original discretion, had it attached to them,
in a different way. If however, the appellate tribunal reaches the clear
conclusion that there has been a wrongful exercise of discretion, in that no
weight, or no sufficient weight, has been given to relevant considerations
such as those urged before us by the appellant then the reversal of the order
on appeal may be justified".
I have no bone to pick with the aforesaid observations for they are
sound principles of law. However, it appears that the learned District Judge
in exercising his discretion vested in him in terms of Section 48 of the
Judicature Act as amended has acted arbitraily upon wrong principles of law
and has allowed extraneous and irrelevant matters to guide him.
Another matter raised by counsel for the plaintiffs - respondent is
the 2nd defendant - petitioner's conduct in the District Court. He submits
that the 2nd defendant - petitioner who did not object to the learned
District Judge of Colombo before-whom no evidence in the said action has been
led from delivering the judgment is not entitled to object to the Additional
District Judge of Court NO.2delivering judgment on the same basis. The
statement appears to be incorrect for journal NO.95dated 05.03.2004 which
reads as follows:
Thereafter journal entry No .96 dated 12.03.2004
reads as follows:
On the same day when the case was taken up in Court No. 02 before the Additional
District Judge to fix a date of judgment the 2nd defendant - the petitioner has
made the applications for a trial de novo at the appropriate time.
For the foregoing reasons, I would answer the question of law formulated in
the negative and set aside the order of the learned District Judge and make an order for a trial de novo with directions to the learned District Judge to
hear and conclude the action as expeditiously as possible. In all the
circumstances of the case, I make no order as to costs.
WIMALACHANDRA,J. -I agree
Appeal allowed.
Trial de novo ordered.
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