Civil Procedure 01 PRINT

transcript

CIVIL PROCEDURE

CIVIL PROCEDURE-1

ACTION

- A proceeding which is instituted for the prevention / redress of a civil wrong (includes a nuisance) ; s. 6

; Re Gunasinghe : Question was whether an application for a writ of certiorari would constitute an action. HELD: Yes.BUT Silver Line Bus v. Kandy Omnibus HELD : A writ for certiorari is not an action.

RIGHT OF ACTION

- A person who has a right of action has a right to petition court claiming relief.

CAUSE OF ACTION

- Foundation for a civil action is the existence of a cause of action.Cause of action is the wrong for the prevention / redress for which an action maybe brought and includes : s. 5

a) denial of right - b) refusal to fulfil an obligation –

Jeganathan v. Ramanathan – Co owner of land subject to Thesawalamai can file an action where he has not received prior notice of a sale of land by another co owner on the basis of failure to fulfil an obligation .

c) neglecting to perform an obligationd) inflicting an affirmative injury

* The meaning of the word “cause of action” in s. 5 is not exhaustive. ; Thiagarajah v. Kathigesu – P filed action asking court to issue a decree that P was not

married to D. Ps claim didn’t fall into categories in s. 5HELD: Under s. 217 G DC has power to declare right / status. So cause of action exists in a case where a decree is sought announcing the status of a party. s. 5 is not restrictive / exhaustive.

- In order to establish a “cause of action” P must prove :a) The existence of a right &b) The violation of that right

(a mere threat / verbal statement is not sufficient to violate a right)

Jalaldeen v. Colombo MCLebbe v. MarikarSubramainum Chetty v. SoysaRaman Chetty v. Abdul Razak

- P could go to court either after/ immediately after the violation of P’s rights

( Actions instituted in the face of imminent violation are called quiatmet.)Right to institute action in the case of imminent violation was recognised in Soysa v. Shanmugam

THE TYPE OF ACTION TO BE FILED

1. The type of action will either be s.7 a) Regular OR

b) Summary

See s. 7 Illustrations* In actions of which the procedure is regular, the person against whom the application is made is called upon to formally state his answer to the case which is alleged against him in theapplication ‘before any question of fact is entertained by the court, or its discretion thereon is in any degree exercised.

* In actions of which the procedure is summary, the applicant simultaneously with preferring his application supports with proper evidence the statement of fact made therein ; and if the court in its discretion considers that a prima facie case is thus made out-

(a) either the order sought is immediately passed against the defendant before he has beenafforded an opportunity of opposing it, but subject to the expressed qualification that itwill only take effect in the event of his not showing any good cause against it on a dayappointed therein for the purpose ;

(b) or a day is appointed by the court for entertaining the matter of the application onthe evidence furnished, and notice is given to the defendant that he will be heard inopposition to it on that day if he thinks proper to come before the court for that purpose.

s . 8 Procedure of action will normally be regular except where it is provided in the CPC that procedure in certain actions should be summary.

Most common type of actions are summary actions.

APPLICATION OF CPC

- Applies to proceedings before i) DC * General jurisdiction set out in Judicature Act 1978

* Minister of Justice has issued a number of Gazette notifications demarcating the geographical limits of every DC.

ii) PHC * Art. 154P of the 13th Amd. conferred original civil / limited writ / revisionary / appellate jurisdiction on PHCs

* HC of Provinces (SP) Act 1996 conferred civil (commercial) jurisdiction on PHCs of any Province declared by the Minister in case of Schedule 1 & to that of the Western Province (Colombo) in case of Schedule 2.

* Ceylon Tea Marketing v Pre-Packed Exports : Every PHC of the Western Province can exercise civil (commercial) jurisdiction.

DETERMINTION OF JURISDICTION

s. 9 Subject to the pecuniary / other limitations prescribed by law, action shall be instituted by court within the local limits in or of whose jurisdiction:

a) a party D residesb) the land in respect of which the action is brought is situated in whole or in part. c) The cause of action arisesd) The contract sought to be enforced was made

According to s. 9 there are 2 types of limitation on jurisdiction

(a) Pecuniary Limitations

* Mediation Boards Act 1988 – every civil action the value of which is less than Rs. 25,000must be referred to for mediation before proceeding to court ; s. 7 (1) (a)

* HC of Provinces (SP) Act 1996 – a cause of action based on a commercial transaction, the value of which exceeds 3 million should be heard by the designated PHC (Commercial HC)

(b) Non-pecuniary limitations

* Arbitration Act 1995 – If a contract containing an arbitration clause, any party claiming a right under such contract can only proceed to court after referring the matter for arbitration.

* Ouster clauses - Where a statute provides that a decision made by a statutory body /person cannot be questioned in any court of law - no original court can take matter up

BASING OF AN ACTION

Action can be instituted in the following places

(1) Where D resides (at the place of residence of any one of the Ds ; Fernando v. Vaas)Tirimanbura v. Dissanayake Hassan v. Peiris – Where there are several Ds, the action could be filed at the place of reference of any party defendant.

But in matrimonial actions – can institute action where D resides or where P resides.

Residence = Where his family would be - Where D resides in a place other than where his family resides – must consider

whether D had the intention of returning to his family. If he had intention – residence is where the family resides.

- temporary place of abode – not residence ; Butler v. Able White - A juristic person cannot be said to reside in a particular place ; Blue Diamonds

v. Amsterdam-Rotterdam Bank (Mark Fernando J)

Somasiri v. Ceylon Petroleum Murugesu v. Muthukumary

(2) Where the land is situated – applies to actions relating to land- P can file case in whichever court when the land is situated within several

territorial limits. - Action relating to land – includes rei vindicatio actions, actions for eviction,

actions to enforce servitudal rights over land. Appuhamy v. Gunawardena – P (lessee) filled action against lessor (D) compelling lessor to accept rentals. HELD – action cannot be considered an action relating to land.

Fernando v. Fernando

(3) Where the contract was entered into – where acceptance too place- Where there is direct evidence regarding the place of contract – the action must

be filed there- Prima facie it is where the acceptance took place. - But can also institute action where the contract is performed

Saudoona v. Abdul Laylett v. Negris Plesspol v. Lady de Soyza Fernando v. Ammasalempillai

(4) Where the cause of action arose – ordinarily in accident cases- Every opportunity must be taken to identify where the contract took place & if

there is clear evidence of where the contract took place – action must be filed there. If not – can file action where the cause of action arose (ie, where the performance took place)Haniffa v. Ocean Accident Lowe v. Fernando

s. 33. Every regular action shall, as far as practicable, be so framed as to afford ground for a final decision upon the subjects in dispute, and so to prevent further litigation concerning them.

s. 39. Every action of regular procedure shall be instituted by presenting a duly stamped written plaint to the court or to such officer as the court shall appoint in this behalf.

s. 45. Every plaint shall contain a statement of facts setting out the jurisdiction of the court to try and determine the claim in respect of which the action is brought.

s. 50. If a plaintiff sues upon a document in his possession or power. he shall produce, it in court when the plaint is presented, and shall at the same time deliver the document or a copy thereof to be filed with the plaint.

s. 51. If he relies on any other documents (whether in his possession or power or not) as evidence in support of his claim, he shall enter such documents in a list to be added or annexed to the plaint.

ss. 24-30

FILING OF AN ACTION

PROXY- A litigant can file an action by himself / through an Attorney ; Jinadasa v. Sam Silva

Daniel v. Chandradeva

- s. 27 manner in which an Attorney is appointed:a) Appointment must be in writing (referred to as the Proxy)b) Proxy must be signed by litigant (in case of a company by 2 directors / director and the

company secretary – company seal must be placed)c) Proxy must contain address of Attorney (to serve processes of court)

- When a Proxy is signed a binding contract is made between litigant and Attorney.

- When a Proxy is filed it remains valid until it is revoked / death of Attorney or litigant / Attorney is removed, suspended (from the bar) , incapacitated.

Court must be informed of the lawyer’s disability. Court will then suspend the hearing for 30 days. Litigant must retain another layer / appear by himself.s. 28 . If any such registered attorney as in the last preceding section is mentioned shall die, or be removed or suspended, or otherwise become incapable to act as aforesaid, at any time before judgment, no further proceeding shall be taken in the action against the party for whom he appeared until 30 days after notice to appoint another registered attorney has been given to that party either personally or in such other manner as the court directs.

- A lawyer cannot appear in court without a Proxy ; Letchaman v Christian

Shakeer v Dharmapala : Lawyer appeared on the summons returnable day & moved for a day to file Proxy on behalf of D. Court refused application and heard case ex parte. HELD: Filing of a Proxy is the only manifestation that would confer authority for the appointment of an Attorney. So an Attorney is powerless to appear in court without a Proxy.

- After a Proxy is filed, litigant cannot file documents / papers himselfFernando v. Fernando 96Fernando v. Fernando 97Silva v. KumarathungaReid v. Semsudeen

- Seelawathi v. JayasingheSomawathi v. BuwaneswariKandiyah v. Weiramuthu

TRANSFER OF AN ACTION

- Judicature Act s. 46 – CA given power to transfer a case pending any court if CA is convinced that :a) A fair and impartial trail cannot be held at a particular placeb) Some questions of law of unusual difficulty may arise c) A view of the place where the offence was committed is required for a satisfactory trial.d) Other similar ground, which CA deems expedient.

- s. 10 a) Application for the transfer of action must be made before case is taken up for trial.b) All parties to the action must be noticed. c) Application must be made by way of an affidavit and a motion. d) CA will conduct an inquiry where the parties have a right to be heard.e) If the CA is convinced that the case should be transferred it must allow the application.

Test for considering transfer application :Somawathi v. Danny – Court must consider the convenience of the parties.Sivasubramanium v. Sivasubramanium – Sufficient grounds must be urged to effect the

transfer under s. 10

Res JudicataRDL concept of Res Judicata has been extended to the law of civil procedure;

Herath v AG – (Basnayake J) Doctrine of Res Judicata is completely embodied in s.34 , s. 207 & s.406

s. 33 P must be filed in a way the final decree can be obtained (so that a further action need not be initiated)

s. 34 Every action shall include the whole of the claim, which the plaintiff is entitled to make in respect of the cause of action. But P can withdraw a portion of his claim and obtaining relief pertaining to that which he withdrew will only be allowed with permission of court.

s. 207 All decrees passed by court will be final between parties except when an appeal is allowed

s. 406 (1) Anytime after the institution of an action if the court is satisfied on the application of P that : a) the action must fail due to some reason of formal defect. ORb) there are sufficient grounds for permitting him to withdraw from the action or to

abandon part of his claim with liberty bring a fresh action for the subject matter of the action or in respect of the part so abandoned.

court can grant permission on such terms as to costs as it thinks fit.

s. 406 (2) If P withdraws from the action / abandons part of his claim without such permission, he shall be liable for such costs as the court may award and shall be precluded from bringing a fresh action for the same matter or in respect of the same party.

Eg- P sues D for 100,000 loan and 75,000 interest during trial P withdraws the claim for 75000 interest . If P later wants to file another action claiming the interest. He must obtain permission of court.

- The Doctrine of Res Judicata can be used by D ; Telaris Hamy v. Novinis Hamy* D must state to court his intention of using the Doctrine of Res Judicata.* Burden of proving the Doctrine of Res Judicata is on D.

- Kanapathipillai v. Kanchiah : The following must be proved to establish Res Judicata ;

i) Decree in the previous trial is final and was made by a competent court having jurisdiction

ii) Previous decree must relate to the same subject matter.iii) Previous trial must have been between the same parties.

* D must raise and establish the above 3 facts.

- Kanchiah v. Kandasamy: Doctrine of Res Judicata does not apply to the joinder of claims.

Jayawardena v. Arnolis Hamy

SCOPE OF ACTION AND JOINDER OF PARTIESs. 35 (1) In an action for the recovery of immovable property or to obtain a declaration of title to

immovable property, no other claim or any cause of action shall be made unless with the leave of the court except :

a) claims in respect of mesne profits or arrears of rent in respect of the property claimed.

b) Damages for the breach of any contract under which the property or any part thereof is held or consequential of the trespass which constitutes the cause of action &

c) Claims by mortgagee to enforce any other remedy under the mortgage.d)

s. 35 (2) No claim by or against any executor, administrator or heir as such shall in any action be joined with claims by or against him personally unless the last mentioned claims are alleged to arise with reference to the estate in respect of which the P or D sues or is sued as executor, administrator or heir or such as he was entitled to or liable for jointly with the deceased person whom he represents.

- Muthumanike v. Sudumanike : There is no provision in the CPC to strike off an application when the plaints are improperly joined. But the judge has the discretion of permitting an amendment to the plaint by allowing a party to separate the cause of actions / join a new claim. (In most cases such amendments are subject to costs)

- Edwin Fernando v. Lionel Fernando : Provision of the CPC relating to the joinder of cause of action & of parties are rules of procedure (not substantive law). Court must adopt a common sense approach when deciding cases of misjoinder / non-joinder.

Joinder of plaintiffs- All persons in whom the claim is alleged to exist jointly / severally in respect of the same cause of

action can be joined as plaintiffs.

- Where only some Ps are successful in a claim, the unsuccessful D is entitled to costs from those parties who have been joined as Ps but did not succeed. (Unless court otherwise directs)

Don Simion Appu v. Marthelis Rosa : Two Ps filed action together for malicious prosecution. HELD: Cause of action accruing to each were separate and distinct. So the two plaints should not have been joined. Case failed for misjoinder.

Dili v. Dili :CPC allows any number of persons having common interests to be joined in one action. So several co-owners were permitted to be joined in one action against another co-owner who appropriated for himself the common property.

Suppiah v. Kalianpillai : P was manager of Aerated Water Co. which was a partnership. Sued Ds (employees) for recovery of money for hawking water. HELD: All partners of the firm should have been joined in the action. D did not contract with P (manager) on the footing that P was an agent of the partners. P could not therefore maintain an action.

- s. 13 Where an action has been instituted in the name of the wrong person as the P, or it is doubtful whether it has been instituted in the name of the name of the right P. The court may at any stage of the action if satisfied that the action has been so commenced through a bona fide mistake and that it is necessary for the determination of the real matter in dispute so to order any other person / persons with his / their consent to be substituted / added as P / Ps.

- s. 14 Addition of Ds Any person against whom any claim is alleged to exist (either jointly / severally / alternatively in respect of the same cause of action) can be joined as Ds.* Jointly / severally / alternatively in respect of the same cause of action – defined in

Fernando v Fernando

- A party objecting to a misjoinder / non-joinder must bring the objection to the notice of the court and the opposing party at the earliest opportunity.

- London & Lancanshire Fire v. PTO : An objection to misjoinder / non- joinder cannot be raised in the answer. It should be raised at the earliest opportunity.

- When joining Ds provisions in s. 35 (1) have to be borne in mind.

- CPC Amendment Act 6/1990 – Provides procedure to be followed where the right of action survives the death of the D.

- Where there are a number of parties having a common interest in bringing an action / joining an existing action – they may sue / be sued with the permission of court. But notice of joining must be given to all parties concerned at the expense of the applicant. (If personal notice isn’t practicable can have a public advertisement with the permission of court.)

- Consequences of misjoinder / non-joinders. 17 No action shall be defeated by reason of the misjoinder / non-joinder of parties and court may in every action deal with the matter in controversy so far as regards the rights and interests of the parties before it.

- s. 18 (1) Situations where court is permitted to strike out improperly joined partiesCourt can upon the application of a party and on terms as the court sees just strike out a P or a D who has been improperly joined / add the P or D whose presence is necessary to effectually and completely try all questions involved in the case / order a P to be a D and a D to be a P. Hilda Perera v. SomawathieMorathota Sabeetha Thero v. Amunugama Rathnapala Thero

s. 20. The court may give the conduct of the action to such D as it deems proper.

s. 21. Where a D is added, the plaint shall, unless the court directs otherwise, be amended in such manner as may be necessary, and a copy of the amended plaint shall be served on the new D and on the original Ds.

s. 22. All objections for want of parties, or for joinder of parties who have no interest in the action, or for misjoinder as co-Ps or co-Ds, shall be taken at the earliest possible opportunity, and in all cases before the hearing. And any such objection not so taken shall be deemed to have been waived by the D.

DEFICIENCY OF STAMPS s. 39

- Plaint cannot be rejected on this ground as it is a matter of revenue.

- Jayawickrema v. Amarasuriya : No objection can be taken by a D in his answer on the ground of insufficiency of stamps on the plaint.

- Seetha Rajasinghe v. Moureen Seneviratne : Right of a party to maintain a proceeding cannot be denied on the ground of insufficiency of stamps.

- s. 40 (d) The plaint shall contain a plain & concise statement of circumstances considering each cause of action and where and when it arose. Statement must be in numbered paragraphs. If more than one cause of action are set out the statement of circumstances constituting each cause of action must be numbered and separate.

- Kandappan v. Pete rs : Plaint did not disclose a statement of the circumstances constituting each cause of action in duly numbered paragraphs – such deficiency cannot be cured by listing documents to that effect in the list of documents.

- Sirisena v. Ginige :The words complained of in a defamation action should be set forth in the plaint.

- Omar v. Casineer :Plaint did not allege anything on the face of it, which gave jurisdiction and court by an oversight omitted to notice the defect and accepted the plaint. HELD: that where attention of court is drawn by the D to that fact, the court ought to return the plaint to the P to amend and return it.

- Soyza v. Soyza : HELD: If on the footing of averments in a plaint the claim made therein is clearly prescribed and where the P as required by s. 44 of the CPC has not stated a ground upon which

exemption from prescription is claimed, then the claim is liable to be dismissed without evidence being gone into on consideration of averments in the answer.

- s. 33 : How to frame a regular action (when accepting a plaint) Every regular action shall as practicable be framed to afford ground for a final decision upon the subjects in dispute so to prevent further litigation concerning them.

- DFO v. Sirisena :

- s. 46 (1) : Subscription of plaintEvery plaint presented by a registered attorney on behalf of a P, shall be subscribed by such registered attorney.* In every other case the plaint shall be subscribed by the P and his signature shall be

verified by the signature of some officer authorised by court.

- s. 47 : Where plaint is presented to a wrong court the plaint shall be retuned to be presented to the proper court.

- s. 49 : The P shall endorse on the plaint or annex thereto a memorandum of documents.

REQUIREMENTS OF A PLAINT

1. s. 24 Appearances may be by the party in person, his recognized agent or attorney.

2. s. 8 Procedure of action to be ordinarily regular.

3. s. 40 Requisites of plaint. The plaint shall be distinctly written upon good & suitable paper and shall contain:

a) name of court / date of filing the plaintb) name / description / place of residence of Pc) name / description / place of residence of D (so far as can be ascertained)d) The plaint shall contain a plain & concise statement of circumstances considering

each cause of action and where and when it arose. Statement must be in numbered paragraphs. If more than one cause of action are set out the statement of circumstances constituting each cause of action must be numbered and separate.

e) Demand of the relief which P claims. f) If P has allowed a set-off or relinquished a portion of his claim – the amount so set-

off / relinquished.

4. s. 45 Jurisdiction of court to be averred.

5. s. 46 (1) Subscription of plaintEvery plaint presented by a registered attorney on behalf of a P, shall be subscribed by such registered attorney.* In every other case the plaint shall be subscribed by the P and his signature shall be

verified by the signature of some officer authorised by court.

6. s. 49 The P shall endorse on the plaint or annex thereto a memorandum of documents.

7. s. 50 P should produce with plaint documents sued upon.

8. s. 51 If P relies on any other documents he should annex a list of such other documents.

9. s. 55 Summons

10. s. 25 Recognized agents

11. s. 27 Appointment of Attorney----fernando v.fernando, daniel v.chandradeva

SUMMONS AND SERVICE OF SUMMONS

- This area was amended by Act no. 14 of 1997

- s. 55 Upon the plaint being filed & copies of concise statements (s. 49) being presented – the court shall order summons, signed by the Registrar of Court requiring D to answer the plaint on or before a day to be specified in the summons. (Not later than 3 months from the date of institution of action)

- s. 59 (1) Summons shall ordinarily be served by registered post.* summons could have been served personally or in substituted form (the amended s.

59(1) stipulates that summons be served via registered post.)

- s. 59(2)(a) In the case of a corporation or an incorporate body, summons shall be delivered to the registered office and if office not registered – to the principal place of business.

- s. 59(2)(b) Where D is a public officer – summons to be sent to the Head of the Department. in which the D is employed. And it is the duty of the Head of the Department to cause such summons to be served personally on the D.

- s. 59(2)(c) Where court is prima facie satisfied that the D is in the employment of another, the court shall send summons to that employer. And it is the duty of such employer to cause such summons to be served personally on the D. * Where it is a company or corporation – to the secretary , manager or other like officer

of such establishment.

- s. 59(3) Where summons are sent to a person other than the D, the court shall also forward a duplicate of such summons, and it shall be the duty of the Head of Dept./ employer as the case may be, to return such duplicate to court with an acknowledgement of the summons by the D.

- s. 59(4) Where D appears in court in person, on summons being served on him – he shall produce NIC/passport. Duty of judge to satisfy himself that the person who has appeared before him is the same person on whom the summons was served.

- s. 60 Provisions regarding personal service of summons.* Generally courts have held that summons have to be personally served on D and not handed over to someone else.* After amendment –

i. summons can be served by registered post

ii. personal service can be ordered by courts where it could not be affected by the (i) above or where D fails to appear in court after having received summons by registered post.* Personal service of summons through fiscal / grama niladhari

Exception – Where action has been filed under provisions of the Debt Recovery Act 2/1990 : summons served through the

fiscal / any other officer authorised by court

Substituted service of summons

When summons cannot be served personally on D, after exercising due diligence, fiscal / grama niladhari can affix summons to a conspicuous place where the D resides. In the case of a corporation – usual place of business.

s. 61 The service of summons substituted by order of court will be as effectual as when it is served on the D personally.

s. 62 When the service of summons on the D is substituted by the order of court, which is as effectual as if it has been served personally on the D, court will fix a day not later than 3 months from the day on which D was first required to answer the plaint, before which he must file an answer. (amended in 1997)

s. 69 In cases where the court has jurisdiction, summons can be allowed to be served outside SL. Applications for serving summons outside SL must be made by a motion and must be supported by evidence (by affidavit / otherwise) showing in what place / country D is / will probably be found and the grounds on which the application for serving summons is made.

When summons are served to a D living abroad, D must answer such summons on the date fixed by court which is not later than 6 months.

FILING OF ANSWER

- On the summons returnable day D could i. File proxy and move for time to file answer ORii. File proxy and answer both

- Answer has to be filed by D in every regular action Except – Where he admits the claim of P. And court would record such admission and

give judgement against D according to admissions so made. (s.72) * Admission shall be in writing , signed by the D and attested by an attorney.

Requirements of a valid answer

s. 75 The answer shall be distinctly written upon good & suitable paper, properly stamped and subscribed by D and duly constituted and shall contain the following :

a. name of court / number of case /date of filing answerb. name of Pc. name / description / place of residence of D d. statement admitting or denying the averments of the P, setting out matters of fact / law &

the circumstances that D relies for his defence.

- Fernando v. SamarakoonWhen factual matters contained in a plaint are dealt with, a mere denial of such matters is not sufficient.

* Provisions of s. 75 are imperative and wherever a D does not answer the contents of any averments in a plaint, he is deemed to have admitted such contents.

s. 76 If D intends to dispute the averment in the plaint as to the jurisdiction of court, he must do so by a separate & distinct plea expressly traversing such averments.

Joonoos v. Chandraratne- If jurisdiction is being denied by a D, he must traverse jurisdiction by a separate & distinct plea.

- The wording of s. 76 is unsatisfactory, because it sanctions a plea of bare denial of jurisdiction. It should encourage the D to subvert litigation into a game of hide and seek. This must not be permitted especially in view of the public outcry against laws delays. The remedy lies with the legislature.

- What s. 76 requires is that the plea of want of jurisdiction should not be rolled up with other pleas & averments. It should stand alone.

- “Separate” & “distinct” as they appear in s. 76 signify similar things. Distinct adds to the plea the quality of being clear and well defined.

- The traversal of jurisdiction must be separate from other pleas and averments. The separateness of the plea need not necessarily be achieved by taking the plea in a separate paragraph / sub paragraph.

CLAIM IN RECONVENTION

S. 75 entitles D to set up a claim in reconvention

s. 75 e When D sets up a claim in reconvention, Ds answer must contain a plain & concise statement of facts that constitute the ground of the claim in reconvention. The claim in reconvention set up in Ds answer has the same effect as a plaint in a cross action. Court can pronounce a final judgement on the original claim and the cross claim in the same action.

* Claim need not arise from the same set of facts on which Ps claim is based. But the claims of P and the claim in reconvention of D should be mutually adjustable.

Silva v. Perera : But the claims of P and the claim in reconvention of D should be mutually adjustable. Court can refuse to allow a claim in reconvention to be put forward if such claim is likely to cause embarrassment / prejudice & delay the trial of Ps claim.

Muthunayagam v. Britto :

REJECTION AND AMENDMENT OF THE ANSWER

s. 77 Permits court to reject the answer / return answer for amendment.

* Court can reject / return for amendment answer if ;a) there is a substantial defect in the answerb) the answer is argumentative / prolix (using too many words and so boring to listen to / read –

eg: Jayamaha summary)c) answer contains irrelevant matters as regards the action.

* A time period of less than 1 month is given to return the amended answer – if answer rejected / not amended within stipulated time ; deemed that D has failed to file answer.

s. 62 When the service of summons on the D is substituted by the order of court, which is as effectual as if it had been served personally on the D, court will fix a day not later than 3 months

from the day on which D was first required to answer the plaint, before which he must file an answer. (amended in 1997)

s. 69 When summons are served to a D living abroad, D must answer such summons on the date fixed by court which is not later than 6 months.

s. 79 No pleading after answer shall be filed, except by order of court, on special motion to be made after due notice to the other side, and before the day appointed for the hearing of the action.- Court shall as it may think fit order costs / postpone the hearing of the action.- Such order shall not be made unless court is satisfied on such motion that the real issues

between the parties cannot be conveniently raised without such further pleading.

Exception : If Ds answer contains a claim in reconvention – P is accorded a further opportunity of filing a replication.

- Such replication shall be confined to matters raised on the claim in reconvention.- All pleadings after answer shall be subject to the rules prescribed by s. 75 relative to

the form and substance of the answer so far as the same can be made applicable.- Copies of such pleadings shall be served on the opposite party & his registered attorney.

Cooray v. Jayawardena : A new matter amounting to a new cause of action cannot be introduced in a replication.

FIXING DAY OF TRIAL

* ss. 80(1), 80(2) & 80(3) have been removed by Amendment No. 79/1988

s. 81 Court has a duty of not appointing more cases for a day than can probably be gotten through on such day.

Postponements

s. 82 When any case in its turn is called on for hearing, the court may for sufficient cause to be specified in its written order, direct that the hearing be postponed to another day which shall be

fixed in the order (upon costs / otherwise)

* The court may in its discretion take and deal with a case out of its order in the cause list on any day for good reason to be adjudicated and recorded by court before entering upon the case.

s. 91 A (1) Where a day is fixed / time is appointed, for doing any act / taking any proceeding by a party to the action – the court may, upon the motion of such party if sufficient cause is shown;

a) fix another day OR

b) enlarge / abridge the time appointed AS IT MAY SEEM PROPER

s. 91 A (2) The day may be refixed / time enlarged although the application for the same is not made until the expiration of the day fixed / time appointed.

s. 91 A (3) The court may for sufficient cause,

a) on the application of the partiesb) on its own motion

advance / postpone / adjourn the trial to any other date (upon costs / otherwise)

s. 91 A (4) Where a date is fixed on or before which a) an act has to be done by a party to the actionb) a return has to be made to a commission issued by court

the case shall be called in open court on such date for the purpose of making an appropriate order in that connection.

Varusai v. Weerasekeram : Where court rejects an application for a postponement, counsel should be prepared to carry on the case in court on that day. BUT the counsel can excuse himself if he had been retained only to ask for a postponement on that day.

Consequences that would arise when a party to a civil suit fails to appear / plead in the course of a civil action

Default of the D

- s. 84 The court shall proceed to hear the case ex parte forthwith / on such other day as the court may fix,

if;i) D fails to file answer;

a) on or before the day fixed for filing of answer ORb) on or before the day fixed for the subsequent filing of answer

ORii) Having filed answer – D fails to appear on the day fixed for hearing

ANDIf court is satisfied that D i) has been duly served with summonsii) has received due notice of the day

a) fixed for the subsequent filing of answerb) fixed for the hearing of the action

iii) the P is present

** Exception – s. 61 as amended by Act No. 14/1997 : Order for ex parte trial under s. 84 cannot be made if the D fails to appear in court after being served summons by registered post. s. 60 (1) requires summons to be served personally.

- Seneviratne v. Dharmaratn : The evidence led at an ex parte trial, must be evidence that is legally admissible. In the case of evidence being led contrary to the provisions of the Evidence Ordinance, the DC cannot give judgement in favour of the P.

- Sirimavo Bandaranaike v. Times of Ceylon Ltd. [1995] 1 SLR 22

Applications to vacate (set-aside) an ex parte decree

s. 86 (2) Where within 14 days of the service of the decree entered against him for default, D with notice to P, makes application to and thereafter satisfies court that he had reasonable grounds for such default ;

a) Court shall set aside judgement and decreeb) Permit D to proceed with his defence as from the stage of defaultc) Upon such terms as to costs / otherwise as to the court shall appear fit

s. 86 (2A) Amended by Act 53/1980Prior to entering of judgement against D for default, if P consents, the court may set

aside any order made on the basis of Ds default & permit him to proceed with his defence as from the stage of default.(upon costs / otherwise)

** Every such application shall be made by petition supported by affidavit **

- Sirimavo Bandaranaike v. Times of Ceylon Ltd. [1995] 1 SLR 22

** Generally after judgement is given by a DC judge, he cannot act further regarding that same case [Functus Officio]Exception : s. 86 An ex parte judgement can be set aside only if

a) there is a mistake regarding the procedure of the case OR b) the default of D was due to unavoidable circumstances

Non appearance of the P

s. 87 (1) Where P or P & D both make default in appearing on the day fixed for trail – court shall dismiss Ps action.

s. 87 (2) Where an action has been dismissed under s. 87 – P shall be precluded from bringing in a fresh action in respect of the same cause of action.

s. 87 (3) P may apply within a reasonable period of time from the date of dismissal, to have the dismissal set aside by way of petition supported by affidavit.

If on hearing of such application, of which the D is given notice of, court is satisfied that there were reasonable grounds for the non appearance of the P – court shall;a) make order setting aside the dismissal (upon costs / otherwise) b) appoint a day for proceeding with the action as from the stage at which the dismissal

for default was made.

s. 88 (1) No appeal lies against any judgement entered upon default.

s. 87 (2) s. 87 (3) NOT IN NOTE

- Sirimavo Bandaranaike v. Times of Ceylon Ltd . : HELD: The revisionary jurisdiction of the CA under Art. 138 extends to revising or varying an ex parte judgement entered upon the default of D on the grounds of manifest error / perversity or the like.Once an ex parte decree is entered by the DC, it is possible for the affected D to revise the ex parte judgement without following the procedure laid down under s. 86 (2) of the CPC, if the order is attacked on manifest error, lack of jurisdiction and the like.

Motions

s. 91 * Every application made to court in the course of an action or incidental thereto (and not a step in a regular procedure)

* shall be made by motion* by applicant in person / his counsel / registered attorney* and a memorandum of such motion shall at the same time be delivered to court.

s. 91 A General powers of a DC in granting postponements / adjournments and extensions of time regarding the doing of an act / taking any proceeding upon the motion of such party.

The Journal

s. 92 With the institution of an action the court shall commence a journal, in which shall be minuted, as they occur, all the events in the course of the action. i.e. – the original application / every subsequent step, proceeding & order. Each minute shall be signed & dated by the judge and the journal so kept shall be the principal record of the action.

AMENDMENT OF PLEADINGS Chapter 15

- The principles of the law relating to amendment of pleadings are set out in s. 93 CPC.

- The original s. 93 was amended by Act No. 79/1988 & 9/1991Prior to the amendments a DC exercised a very wide discretionary power in dealing with an application for amendment of pleadings.

- s. 93 (1) As amended by Act No. 9/1991* Upon application made to court* before the day first fixed for trial of the action* in the presence of / after reasonable notice to all the parties to the action** court shall have full power in amending in its discretion all pleadings in the action by

way of addition / alteration / omission .

- s. 93 (2) * On or after the day first fixed for trial and* before the final judgement** no application for the amendment of any pleadings shall be allowed** unless court is satisfied that grave and irremediable injustice will be caused if

such amendment is not permitted and (no other ground)** the party so applying has not been guilty of l****

- s. 93 (3) All application for amendment under ss. 93(1) & 93(2) shall be upon such terms as to costs & postponement / otherwise as the court may think fit.

- s. 93 (4) * The additions / alterations / omissions shall be clearly made on the face of the pleading affected by the order.

* If such cannot be conveniently done, a fair copy of the pleading as altered shall be appended in the record of the action to the pleading amended.

* Every such addition / alteration / omission shall be signed by the judge.

Lebbe v. Sandanam : A divisional bench considered the rules applicable in the case of amendment of pleadings and stated some instances where the court should not allow an amendment. eg: - * If the amendment sets up a new case.

* An amendment which prejudices the rights of the opposing party.

Interrogatories

- ss. 94 ~ 100 Deal with the service of by one party on another.

- The concept of interrogatories is a concept that we have inherited from the EL

- Kennedy v. Dodson : Purpose of interrogatories – “ to obtain from the party interrogated, admissions to the facts which are necessary for the party interrogating to prove in order to establish his case.

- Wijesekere v. Eastern Bank Ltd. : The above observations were followed.

- Service of interrogatories is an optional step, which is available to a litigant who desires to obtain from the party being interrogated, admissions of fact which otherwise the party interrogating would have to establish at the stage of the trial.

- s. 94 (1) * Any party may at any time before hearing by leave of court to be obtained ex partedeliver through court interrogatories in writingfor the examination of the opposite party.

* Where there are several opposite parties,deliver interrogatories to any one or more of such parties,with a footnote stating which of such interrogatories each of such persons is

required to answer.Provided

* No party shall deliver more than one set of interrogatories to the same person without the permission of court.

* No D shall deliver interrogatories for the examination of Punless such D has tendered his answerand such answer has been received and placed on the record.

- Interrogatories need to be relevant to the case.

- Goonewardhana v. Dunuwille

- s. 95 * Interrogatories shall be served a) on the registered attorney (if any) of the party interrogated

ORb) in the manner provided for the service of summons (such provisions shall as far

as may be practicable be applied to the service of interrogatories)

- s. 96 The court in adjusting the costs of the action, shall at the instance of any partyinquire / cause inquiry to be made on the propriety of delivering such interrogatories .

If court thinks that such have been delivered unreasonably / vexatiously / at improper length – the costs occasioned by the interrogatories / answers thereto ; shall be borne by the party at fault.

- s. 97 Where interrogatories are to be served upon a body corporate / company (incorporate or not) / any other body of persons empowered by law to sue or be sued (in its own

name or in the name of an officer / other person) – can apply to court for an order to deliver interrogatories to any member / officer of such corporation / company /

- s. 98 Any party called upon to answer an interrogatory may refuse to do so on the grounds that ;a) it is scandalous / irrelevant b) it is not put bona fide for the purposes of the actionc) that the answer will tend to criminate himselfd) the matter inquired after is not sufficiently material at that stage of the actione) OR any other like ground

- s. 99 Interrogatories shall be answered by affidavit to be filed in court within 10 days from the service thereof OR within such further time as the court may allow.

- s. 100 If any person interrogated omits or refuses to answer / answers insufficiently ;party interrogating may apply to court for an order requiring him to answer / answer

further as the case may be. (answer may be by affidavit / viva voce examination, as court directs)

But court shall not require an answer to an interrogatory which in its opinion need not have been answered under s. 98.

* The CPC is silent regarding the procedure to be followed by an interrogating party in making an application under s. 100.

- Ceylon Insurance Co. v. Sudu Banda : [Maniccavasagar J.] “It is obvious that the opinion of the court on the above matter, should be after hearing both sides. The party sought to be interrogated should therefore have notice of the application under s. 100 in order to enable him to show cause, if any, against an adverse order made against him.”

- Before any order is made under s. 100, it is imperative that the party interrogated is given notice of the application for an order under s. 100 made by the party interrogating.

- Chetty v. Ragsoobhoy : The failure to answer interrogatories does not make a D liable to have his defence cut off. It is only a failure to comply with an order made by s. 100 that makes a D liable to face the same consequences as in the case of an ex parte trail.

Admitting the genuineness of documents

- This is an optional step that a party can take up.

- Mechanism is activated by any party to a suit under s. 101

- s. 101 (1) * Either party may by a notice issued by order of court- to be obtained by motion ex parte- within a reasonable time not less than 10 days before the hearing

require the other party to admit the genuineness of any document material to the action.

- s. 101 (2) The admission shall also be - made in writingsigned by the other party / his registered attorney& filed in court

- s. 101 (3) If such notice is not given; the costs of proving such document shall not be allowed unless the court otherwise orders.

- s. 101 (4) If such notice is not complied with within 4 days after its being served& court thinks it reasonable that the admission should have been made

- The party refusing shall bear the expenses of proving such document (whatever may be the result of the action)

Discovery of documents

- s. 102 Order of production of documentsAt any time during the pendency of an action,court can either on its own / on the application of a partyorder the production by any party, by way of affidavit

* all documents that are in his possession / power & which are relevant to any matter in question in such action / proceeding

&deal with such documents when produced in such manner as appears just.

- This is a mechanism that could be used by one party to discover and inspect documents of the other party.

- This method is inherited from the EL

s. 103 - Production of documents

While a case is pending, court can order a party to produce to court any document in his possession / power which relates to any in question in the proceeding as the court thinks right. When the documents are so produced, court can deal with the document in a manner which it thinks to be just.

When an order for the production of documents is made – a party can object to the production of the document by way of an affidavit. Affidavit must contain the grounds for the objection

s. 103 A – Code of Civil Procedure (Amm) Act 1977 (1) Where the state a party to civil proceedings : the state may also be required to make

discovery & produce documents before court(2) BUT State has a right to withhold a document if its production would result in the public

interest being adversely affected.

s. 104 – Notice to produce documents for inspection

A party can get a court order for notice to be issued to the other party to produce a document which is referred to in that party’s pleadings / affidavits, so that it can be inspected & copied. The application can be made before / at the hearing. The court order must be applied for by motion.

Amarasekara v. Palaniappu – If the document for the production of which a notice has been issued is a document which would only support the claim of the party referring to it in the pleadings / affidavit – no obligation to produce the document.

s. 105 – Party receiving notice to specify time & place of production of documentsThe party who receives the notice must deliver to the party a notice which states a time at which the documents may be inspected. The place of production of document could be at his registered attorney’s office or at any other convenient place. If he objects to the production of any document he must give the grounds for such objection The date of production of documents for inspection must be within 3 days of the date of delivery of the notice to the other party. The notice must be sent to the other party within 10 days of the receipt of the notice in s. 104.

s. 106 – Order for inspection made by courtIf a person who has been served with a s. 104 notice,

(a) fails to serve a s. 105 notice within 10 days(b) objects to allowing inspection(c) names an inconvenient place for inspection

the party who issued the s. 104 notice may apply to court for an order of inspection.

The application must be supported by an affidavit (except where the documents in question are referred to in the other party’s pleading / affidavit)The affidavit must contain(i) what documents are sought to be inspected(ii) that the he is entitled to inspect such documents(iii) that the other party is in possession / power of the documents ; s. 107

s. 109 – Consequences of not complying with a s. 106 order

If he is a P – his action will be dismissed for want of prosecutionIf he is a D – his defence will be struck out & will be in the same position as if he had not appeared and filed answer (ex parte)He will also be guilty of contempt of court (if the order has been personally served on him)

Pre-trial steps relating to documents ss. 111 – 120

s. 111 – Parties must be ready with all the documentary evidence relating to the case that is in their possession / power on which they intend to rely & which has not already been filed in court or which the court has ordered before the hearing to be produced in court. If any document is in the possession of the opponent, the party must comply with the provisions of s. 66 Evidence Ordinance(that secondary evidence of the contents of a document shall not be given unless the party proposing to give such secondary evidence has previously given notice to the party in whose possession / power the document is).

s. 112 - Documentary evidence which is in the possession / power of a party which should have been produced in court but which has not been produced will not be received by court at a subsequent stage of the proceedings. (Except where good cause is shown for the non-production)

s. 114 - (1) A document will not be placed on record unless it is proved / admitted inaccordance with the law of evidence.

(2) Once a document is proved / admitted, it has to be endorsed with a marking that is sufficient to identify it. The document must then be filed as part of the record.

(3) Documents which are not proved / admitted must be returned to the parties.* But court has power, notwithstanding s. 114 (3) to direct a document to be impounded &

kept in custody of a court official if it thinks there is a sufficient reason for doing so. (for so long as court thinks fit) ; s. 115

WITNESSES & DOCUMENTS Chapter 17

Filing a list of witnesses & documents

– duty of the registered attorney

Object of filing a list of witnesses & documents – preventing unwanted documents being produced and unnecessary witnesses from being summoned to prove a point.

s. 121 – Parties to an action must file a list of witnesses & a list of documents relied upon by the party at the trial at least 15 days before the date fixed for the

trial of an action. (notice of the list must be given to the opposite party) * s. 175 – No witness can be called or document be produced unless the name of witness / document is included in the list of witnesses / documents.

- A witness whose name is not included in the list of witnesses can by summoned only in special circumstances with the leave of court Kandiah v. Wisvanathan

Leave must be granted to produce an unlisted document where(a) it is in the interest of justice to do so(b) it is necessary for the ascertainment of the truth(c) there is no doubt about the authenticity of the document (eg. certified copies of

public documents / records of judicial proceedings)(d) sufficient reasons are adduced for the failure to list the document (eg. party was

ignorant of its existence)

Asilin Nona v. Wilbert Silva – burden of proving the existence of a “special circumstance” is on the party seeking to call the witness.

Girantha v. MariaWhen a judge uses his discretion to permit a witness whose name is not in the list of witnesses from giving evidence – the paramount consideration for the judge is the ascertainment of the truth. No to see a litigant being placed at an advantage.

- A party to an action can give evidence even if his name does not appear in the list of witnesses.

- Documents produced by the opposite party to cross-examine witnesses or handed to the witness to refresh memory need not be listed.

* Tikiri Banda v. Loku Menika – A judgment entered in favour of a party by making the judge to believe that a witness’s name has been included in the list of witnesses makes such witness’s evidence illegal. His evidence could not form the basis of the judgment.

* A person who is summoned to produce a document can produce the document through another person or his representative.

* A party can amend list of witnesses any time before the 15 days prior to the trial date.

Subramaniam v. Ceylon Paper Sacks – P did not indicate to court the material they intended to adduce through the witness. D also had no notice of the nature of the evidence intended to be adduced through the witness. Held – Trial judge’s decision to refuse to permit the witness to be called is correct. Munaf v. Yusuf – Where the judge decided that D has not sought to explain the delay in filing the list of witnesses and that it would cause prejudice to P if a witness is listed at this stage of the trial (after P has closed his case) – it is correct for the judge to refuse to permit the evidence of the witness.

Mercantile Credit v. Sisira Kumara – ss. 121 & 175 are applicable only to trials of actions by way of regular procedure.

ss. 122 – 142 deals with the securing of the attendance of witnesses & the consequences of a failure to attend court on the part of a witness.

Chapter 18 - Adjournments

s. 143 – (1) Court may grant time to the parties & from time to time adjourn the hearing of the action if sufficient cause is shown to exist.

But no adjournment for a period of over 6 weeks may be granted except in exceptional circumstances.

The reasons for an adjournment must be recorded.

(2) Court must fix a day for the further hearing of the action. Court can make an order which it thinks fit in respect of costs occasioned by the adjournment.

But when the hearing of the action has begun, the hearing must be continued from day to day until all witnesses have been examined (unless an adjournment is necessary for reasons to be recorded and signed by the Judge)

Silva v. Silva – there is nothing in law which empowers court to dismiss an action for non-payment of costs.

Weerasinghe v. Barlis – When payment of costs before the next trial date is ordered, payment of costs of the next trial date will be sufficient. * If a D has agreed to the payment of costs before next trial date, failure on his part to pay costs will result in judgment being entered in P’s favour ; Punchi Nona v. Peiris But if D has not consented to pay costs, judge has no jurisdiction to give judgment for P merely because D has failed to pay costs before next trial date ; Perera v. Nawange

s. 144 - If a party fails to appear on the day to which the hearing of the action is adjourned – court can dispose of action as directed by Chapter 12 / make any other order it thinks fit.

s. 145 - If a party to an action, to whom time has been granted, fails to perform an act for which time had been allowed – court can still proceed to decide the action.

Chapter 19 - The Trial

Determining the issues

s. 146 - (1) If parties are agreed as to the question of fact / law to be decided between them, parties can state that in the form of an issue and court must proceed to determine it.

(2) If parties are not agreed as to the question of fact / law to be decided by court, court must ascertain upon what material propositions of fact / law the parties are at variance. Court

must then proceed to record the issues on which the right decision of the case appears to the court to depend.

[when ascertaining the material propositions of fact/law – court can examine the parties & can refer to (a) allegations made in plaint / in answer to interrogatories(b) contents of documents produced by parties ]

(3) No need to frame & record issues when D makes no defence.

Judge has the discretion to allow fresh issues to be formulated after the case has commenced if it is in the interest of justice. s. 149 – Court may amend the issues / frame additional issues on such terms

as it thinks fit at any time before passing a decree.BUTAn application seeking to raise a new issue by P after he has closed his case and where the issue is unsupported by the necessary evidence & is not pleaded must not be allowed ; Suppiah v. Kanagaratnam

Issues are not restricted to pleadings ; AG v. Smith & Silva v. ObeysekaraPleadings can be amended if issues which do not strictly arise from the pleadings are permitted to be framed ; Martin v. ThenuwaraCourt cannot order costs for belatedly suggesting an issue which arises on the pleadings ; Melis v. AdonsiaBUTWhen recording an issue which is not included in a pleading – court must consider(a) whether recording the issue would change the nature of the case

(if it does – must not record)(b) whether the other party is put in a disadvantageous position by allowing the new issue to

be recorded. Issue must not be produced so as to surprise the other party. (Other party can be given time to consider the issue if they request)

Municipal Council of Jaffna v. Dodwell – s. 146 does not permit court to frame issues upon an unpleaded cause of action if that cause of action has become prescribed by that time.

If no issue is settled, parties must be held not have been at issue on those facts and no burden on parties to prove them ; Appuhamy v. Kirahenaya

Pathmawathie v. Jayasekara – Though in practice Counsel for P & D do suggest the issues, it is the prime responsibility of the Judge to frame issues because it is ultimately the Judge who should make a finding, and without a clear understanding of the dispute and the issues that he has to determine it would be a dangerous exercise for the Judge to embark upon.

Once an issue is framed, court has no power to strike it out on the motion of either party. The issue must be retained to be eventually decided ; Fernando v. Ramanathan.

The Importance of Framing Issues

(1) Determines what facts need to be proved.

(2) Helps to determine what evidence should be lead & what documents should be produced since both sides are alive to the questions that are about to be argued.

(3) Prevents unnecessary evidence from being lead

Uvais v. Punyawathie – Absence of an agreement to pay an increased rent was not a fact on which D relied for his defence, nor a proposition on which parties were at variance. So evidence on that matter is prohibited for D & superfluous for P

(4) It is the duty of the judge to come to the right decision regarding the particular issues. Even in appeal, the appellate court must decide the case based on the issues in question. Pathmawathie v. Jayaseka ra – Our law does not permit the judge the freedom of the wild ass to go on a voyage of discovery and make a finding as he pleases. He must decide the case on the issues raised.

s. 147 – When issues of law & of fact arise in the same action, and the court feels that the case may be disposed of on issues of law alone, court must try issues of law first. Court can postpone the settlement of issues of fact until the issues of law have been determined.

(Pure issues of law – also called preliminary issues)

Cathiravelu v. Dadabhoy – Court has power to dismiss an action on an issue of law without any evidence or admission being recorded (ie, without hearing the parties).

Pure Beverages v. Fernando – If an issue of law arises in relation to a fact about which the parties are at variance – the issue of law must not be tried first as a preliminary issue.

s. 148 – If court is of opinion that issues cannot be correctly framed without examining a witness who is not before court / inspecting a document that has not been produced – court can adjourn the framing of issues & can compel the attendance of the witness / production of the document.

s. 149 – Court can amend issues / frame additional issues on such terms as it thinks fit at any time before passing decree

Hameed v. Cassim – s. 149 does not preclude a DJ from framing a new issue after the parties have closed their respective cases & judgment is read out in open court. It is not necessary that the new issue should arise on the pleadings. A new issue could be framed on the evidence led by the parties orally / in any other form of documents. Only restriction – DJ in framing a new issue should act in the interests of justice (ie, to ensure that the correct decision is reached in the case)

Admissions

Mariammai v. Pethrupillai – If a party makes an admission for whatever reason, he must stand by it. It is impossible for him to argue a point on appeal which he had formally given up at the trial.

BUTUvais v. Punyawathie – It is sometimes permissible to withdraw admissions on questions of law but admissions on questions of fact cannot be withdrawn.

Perera v. Samarakoon – An erroneous admission of counsel on a point of law has no effect and does not preclude the party from claiming his legal rights in appeal.

Right to begin

s. 150 – The party having the right to begin must state his case giving the substance of the facts which he proposes to establish.

General rule – P has the right to beginBUT Where claim of P is admitted by D but D claims that on a question of law / based on additional facts P has not right to relief – then D has right to begin.

A party can only lead evidence that is relevant to the pleadingsHildon v. Munaweera – All facts & evidence taken as a whole should be relevant to the pleadings of case.

Leading Evidence

After stating the case under s. 150 – party having right to begin produces his evidence to establish his claim

When questioning a W questions (a) must be simple(b) must be limited to the issues / debatable facts(c) must be in chronological order & in form of narrative(d) must be directly about what the W observed(e) must not be leading / suggestive ; s. 142 EO(f) must not be questions of opinion (unless W is an expert)(g) W must not be asked to narrate the incident (this can lead to W coming with a

prepared speech) (h) Hearsay evidence must not be lead (except for establishing that a statement had

been made)

After Examination in chief is over – other party can cross-examine W ; s. 152(Leading questions can be asked in the course of XX)

After cross-examining – W can be re-examined ; s. 153(New evidence cannot be lead during re-examination)

Tender of documents in evidence ; s. 154(1) A document which a party intends to use as evidence against the other

must be formally tendered to the other party when the contents of the documents are spoken of by a witness for the first time during the course of proceedings

(2) Court must not allow the indiscriminate admission of an entire body of proceedings of another court action

(3) A document that is admitted must be marked with a distinguishing mark.

- Court must admit a document in evidence if a. the other party does not object to it being received in evidenceb. the document is not forbidden form being received in evidence by law

- If other party objects to a document being tendered – court must decide(a) whether document is authentic(b) if document is authentic does it constitute legally admissible evidence against

the party who is sought to be affected by it

If both questions are in the affirmative – court must admit documentIf one of the question are answered in the negative – court must refuse document

- Whether a document is admitted or not – must be marked as soon as W makes a statement regarding it. (If not – must be marked at least when court decides whether to admit doc or not)

- If document is not prepared by W – must identify the handwriting / signature & the purpose & time at which it was prepared (these must be given in evidence)

- Before a W is allowed to identify a doc – W must be made to state the grounds of his knowledge regarding the doc ; s. 155

- Before doc is shown to W - W must be examined by the party proposing to prove the document on the grounds of his knowledge regarding doc. Other party must be allowed to cross-examine W ; s. 156

- If document was prepared by an illiterate person – must prove that at the time he prepared doc by putting his mark etc. – he understood the contents of the doc ; s. 160

When the party beginning case has concluded his case – the other party can prove his case in a like manner

Where there are several issues & the burden of proving some issues lie with P & others lie with D – the party beginning proceedings can produce evidence on the issues / reserve it by way of answer ; s. 163

Subramanium v. Ceylon Paper Sack – Question whether a party who begin a case should be permitted to call evidence in rebuttal of the case of the other party has to be decided primarily in relation to the proceedings of each case. Rebuttal of the case of other party is permitted where

(a) Where there are several issues in the case & the burden of proving only some of them lie upon the party beginning & of the others on the opposing party.

Here s. 163 CPC provides that the party beginning can, at his option adduce evidence in chief on the issues where the burden lay on the opposing party.

Here there is an element of a right in the party

s(b) Where court can, in any event, in the interests of justice, permit the party

beginning to lead evidence in rebuttal

Here it is entirely at the discretion of court

s. 163 embraces a situation where the respective issues are distinct & are discernible as such. It does not readily apply in a situation where the respective issues overlap / where the issues raised by the opposing party are counter / negative of the issues raised by the party beginning. In such a situation, the party beginning cannot split his case into 2 & prelent part EIC & seek to confirm that part by taking a second bite of the same cherry under the cover of rebuttal.

s. 164 – Court can question a witness at any time

s. 165 – Court can recall any witness whose evidence has been concluded

s. 169 – Evidence of every W must be taken down in writing by the judge / in his presence. Evidence must be taken down ordinarily in the form of a narrative

s. 170 – Court can ask specific questions from a W & the answers to such questions must be recorded in the form of question & answer

s. 175 – A witness cannot be called / a document cannot be produced unless included in the list of witnesses / document

s. 176 – Court can forbid indecent / scandalous questions

s. 177 – Court can forbid insulting questions

Evidence de bene esse ; s. 178- Normally evidence is given after the commencement of trial. But

witness’ evidence can be recorded prior to commencement of trial because W will not be present when trial starts. (eg. if W is about to leave jurisdiction of court)

- Court can record evidence on its own motion / on application of a party ; s. 178

- Court can record evidence bene esse any time after the institution of an action

; s. 178

- Where evidence is not recorded immediately – court must notify all parties to the case the date on which the recording of evidence would take place.

- But when evidence bene esse is read – if there is opportunity for W to be present then evidence of witness must be lead again

- Chandrasekara v. Salgado – Recording of evidence under s. 178 cannot be done without notice to the other party. Other party has a right to cross-examine witness

- Evidence taken under s. 178 can be read at the hearing (if W cannot then be produced)

Evidence on affidavit / commission ; s. 179- Court can order that a particular fact be proved by affidavit / by depositions

taken on commission (instead of by the testimony of a witness)

- Affidavit = A statement / declaration made under oath / affirmation by a person who is aware of the facts stated therein ; s. 181 Affidavit must be confined to the statement of facts which declarant is

able to testify with his knowledge & observation (except on interlocutory applications in which statements of his belief may be admitted provided there is reasonable grounds for the belief set out in the affidavit)

- The affidavit / commission can be read at the hearing but if court feels that a party bona fide wants to cross-examine a W – Testimony of W must be orally recorded.

- Ratnayake v. Karunawathie – Under s. 179 court can order that a particular fact be proved by affidavit instead of viva voce testimony at any time for sufficient reason

- s. 180 – If the order has been made for proof of facts by affidavit – court can nevertheless at the instance of either party – order the attendance of the declarant / deponent at the hearing of the action for viva voce examination if he is in SL & can be produced.

- After an order for the affidavit to be admitted has been made – if the necessity arises at a later stage for XX witness & an application has been made – court can still order that W gives oral testimony even though an order under s. 179 had previously been made.

- The fact that the other party consents does not relieve court of duty of satisfying itself that it can depart from the procedure laid down

s. 183 Who may administer oaths (affidavit)

a. Any court / magistrate / JP b. A commissioner for oathsc. Any person qualified to administer an oath according to the law of the country in which

the affidavit is sworn. (1988 Amd)

s. 183 A When may another make affidavits in place of the party.a) where the AG is a party to the action – any officer of the state b) where a corporation / board / public body / company is a party – Any secretary /

director / principal officer. c) Where a party is absent from SL – his registered attorneyd) Where the party is unable to make the affidavit due to lack of personal

knowledge / bodily or mental infirmity – any recognized agent of such party.

* The person who makes the affidavit in place of the party to the action must have personal knowledge of the facts.

s. 183 B Punishment for wilfully making a false statement made under s. 183 A – either contempt of court / can be tried under the penal code for the offence of giving false

evidence, where such statement is on oath or affirmation.

s. 182 Ensures that all requirements are satisfied when making an affidavit. - A petition cannot be converted to an affidavit by a verifying clause that the affirmations

in the petition are true

Rules relating to affidavits ss. 437 ~ 440

s. 437 When evidence on affidavit is admitted , the affidavit maybe sworn / affirmed to by the person making the statement embodied in the affidavit. And the fact that the affidavit bears

on its face, the name of the court, the number of the action, and the names of the parties, shall be sufficient authority to such court /JP / C for O to administer the oath /

affirmation.

Pakir Moohidin v. Mohamadu Cassim : An affidavit sworn in by the D before his own attorney is not according to the practice of the English court , admissible in evidence and such practice should be followed here.

s. 438 Every affidavit must be signed by the declarant in the presence of the court / JP / C for O

s. 439 If the declarant is blind / illiterate / cannot understand writing in English – affidavit must be read over and interpreted to him in the presence of court /JP / C for O. And the Jurath must so explain that it was so interpreted and that his mark / signature was put in the presence of court /JP / C for O.

Simon Singho v. GA Western Province : The absence of a Jurath in an affidavit where the declarant is unable to understand in writing the English language

s. 440 Alteration of affidavit – Every affidavit must be fairly written and must exhibit no erasures / blotting /blanks and if any alterations

needs to be made in writing. Before it is sworn or affirmed to every excision of a word/ letter/ figure

shall be made by drawing a line though it as to leave the word/ letters/ figure still legible. And every added word/ letter /figure shall be added by inter lineation, not by superposition or alteration and every excision and interlineations shall be initialled by the judge / JP / C for O /the person qualified before whom the affidavit is affirmed or sworn.

JUDGEMENT

s. 184 (1) Upon the evidence recorded / upon admitted facts in pleadings & after the parties have been heard, judgement must be pronounced in open court at once / on a future day of

which the parties must be given notice of at the end of the trial.On the day fixed for the judgement if court is not prepared to give judgement another

future day maybe fixed and announced to the parties ; s. 184 (2)

* In civil proceedings a time limit has not been given for the pronouncement of judgement, but it is reasonable to expect the judgement to be delivered within a

reasonable time from the end of the trial.

Kulatunga v. Samarasinghe : A judgement was delivered 2 years and 4 months after the end of the trial. The case depended on oral evidence. HELD: The impression created by the witnesses on the judge would have faded away after such a long delay. So the advantage of such impressions would be lost and the judges recollections of the fine points of the case would have faded away by the time he wrote the judgement.

David v. Choksy : It is mandatory that at the end of the trial that notice is given to parties by the court, if the judgement is to be delivered on a future day. There is no duty on the parties to ascertain for themselves the next date of judgement if the date has not been fixed in open court. The duty on the court to notice parties of the date of delivery of judgement is greater when there is a delay of 2 years and 8 months, and the case has not been called for a period of 2 years. In such circumstances it would be even difficult for the attorney at law to ascertain the actual date of judgement.

s. 185 A judge may pronounce a judgement written by his predecessor which has not been pronounced.

Saravanamuttu v Saravanamuttu : A judgement written by a judge who is functus officio on the day on which he signs is invalid and cannot be pronounced by his predecessor.

Edwin v. de Silva: A judgement written and signed by a judge at a time when he had no jurisdiction to do so, will not satisfy s. 185 and cannot be regarded as a valid judgement

when pronounced by his successor.

s. 186 The judgement must be in writing and must be signed by the judge in open court at the time of pronouncing it.

s. 187 The judgement must contain:a) a concise statement of the caseb) the points for determination

c) the decision of the court on those pointsd) opinions of the assessors if any must be prefixed by the assessors.

Warnakula v. Ramani Jayawardene : Bare answers to issues without reasons are not in compliance with the requirements of s. 187. 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 & witnesses and stating that he prefers to accept the evidence of one party without giving reasons is insufficient. (Jayamaha is insufficient)

DECREE

s. 188 * After pronouncing the judgment the court is required to draw up a formal decree bearing the same

date in form no:1 of the First Schedule.

* The decree must specify in precise words, (a) the order made by the judgment regarding the relief granted or other determination of the action (b) parties & in which proportions the costs are to be paid

The decree must bear the date of the judgment & also it should be announced without delay.

King v. Harvey – a decree is merely formal expression of an adjudication by a civil court. It is not necessary that it should be drawn up and signed by the same judge who pronounces the judgment. It can be done by any judge of the court.

s. 189 s. 189 (1) - Amendment of a decree

The court may at any time either on its own motion / on that of any other parties, correct any clerical / arithmetical mistake in any judgment or any error arising therein from an accidental slip or omission or make any amendment which is necessary to bring the decree in conformity with the judgment.

s. 189 (2) - Reasonable notice of any proposed amendment must be given to the parties.

Ramasamy Pulle v. De Silva – once a judgment is delivered, such judgment cannot be vacated or altered except in the manner provided for in this section.

Parsons v. Abdul Cader – where judgment is entered in a case against a person under a wrong name, the court has inherent power to substitute the right name in the caption of the plaint even after the decree.

Mohammed Iqbal v. Mohammed Sally * s. 189 is exhaustive of the situations in which a decree may be amended* This section cannot be invoked by a court for correcting mistakes of its own in law /

otherwise.* A judge cannot reconsider / vary his judgment after delivery except as provided by

s. 189

* Ranaraja J “The power of court under s. 189 is to be exercised entirely at the discretion of court & the discretion should be exercised sparingly and in general to avoid a miscarriage of justice. If not, the principle of finality of judgment & decree will have no meaning”.

At what rate may interest on money be decreed s. 192

s. 192 (1) - When action is for a sum of money, court can order (a) according to the rate agreed on by the parties in the instrument(b) if no such instrument exists – at the legal rate, to be paid, on the principle sum

* Interest will be calculated from the date of action to the date of decree + any interest accrued on the principle sum for any period prior to the institution of the action.

* Court can also order further interest at the legal rate on the aggregate sum so calculated from the date of the decree until the date of payment (as until a date fixed by the court)If the decree is silent on further interest between date of decree & date of payment – deemed that court has refused to allow such interest. A separate action will no lie for such interest.

Obeysekara v. Fonseka – Where the action is based on an promissory note which represents arrears of interest due on an bond, P cannot recover interest on the money due on the note because this would amount to compound interest. But interest can be allowed on the principle sum that is calculated to be due on the promissory note.

s. 192 (2) – “Legal rate” = the rate per centrum per annum determined by the Monetary Board established by the Monetary Law Act.

When may court order specific performance? s. 193

When the action is for breach of contract, if it appears that D is able to perform the contract, with the consent of P, court can decree specific performance of contract within a time fixed by court. When specific performance is decreed, court must also award an amount of damages which is to be paid as an alternative if the contract is not performed.

Finality of decrees s. 207

All decrees passed by the court must be final between the parties (subject to appeal when such appeal is allowed). No P shall hereafter by non-suited.

Explanation – * Every right to property /money / damages / relief of any kind that is set up/put in issue between P & D in an action

* Whether it be actually claimed/set up/put in issue or not in that action, * Becomes after passing the final decree a res adjudicata, which cannot afterwards be made the subject of action for the same cause between the same parties.

Fernando v. Menikrala – A dismissal of a partition action does not operate as res judicata in a subsequent action for declaration of title since the applicant is only trying to prove a better title to a share of the land although he has no absolutely good title against the whole world.

Peiris v. Peiris – An order dismissing a claim on the ground that the application was improperly made does not make such order operate as res judicata because the order does not fall under s. 244, s. 245 or s. 246.

Palaniappa v. Gomez – P brought action in Colombo DC. D was resident in Kalutara. P was ordered to give security for costs. P failed to do so & the action was dismissed . P brought filed another action on the same cause of action in the DC of Kalutara. D pleaded the dismissal of the action in Colombo as res judicataHeld – Dismissal of first action operated as res Judicata & barred the second action.

Mohamed Cassim v. Sinna Lebbe – Dismissal of an action for declarationof titleto land on the ground that P disclosed no valid cause of action does not operate as a bar to a second action for the same relief.

Kantaiyer v. Ramu – A husband H was unsuccessful in an action brought by him, in claiming certain lands which contended were belonging to his son (S) (a minor) by inheritance from his wife (W). H sued as the guardian of S. Later H obtained letters of administration to W’s estate & sued the same defendant The defendant objected that the decision dismissing the previous action was res Judicata.Held – The decision in the first action is no bar to the second action as the appellant did not appear in the same capacity in both cases.

Muttupillai v. Chinnapillai – A granted a bond in favour of B. After B’s death, C (the illegitimate child of B sued A as B’s sole heir & obtained judgments. Later E, the legitimate child of B sued A on the same bond. Held – E cannot maintain the action.

Manuel Istaky v. Sinnnatamby – Several debtors executed a joint promissory note. A judgment was obtained against only one debtor in an action. The creditor later filed a second action against other debtors.Held – The creditor is debarred from file an action against other joint makers although the judgment obtained against one debtor is not satisfied.

Appuhamy v. Banda – A D who had neglected to set up a claim in reconvention is not barred from bringing a separate action for compensation for the improvements effected to the land when he was in occupation.

Samichi v. Peiris – s. 207 does not embody the whole law as to res Judicata. Our law as to res Judicata is to be found in s. 207 and it may be supplemented by English law. But EL cannot supersede the s. 207 or restrict/expand its scope or meaning.

Perera v. Fernando – The dismissal of an action for declaration of title to land because of P’s failure to proceed operates res Judicata even though the formal decree was not entered in the first case in terms of s. 188

Katiritamby v. Parupathipillai – An erroneous decision an a pure question of law will not operate res Judicata.

Fernando v. Perera – P is barred from filing a new action on the same matter on which P had already instituted an action & withdrawn without reserving the right to bring a fresh action.

Elias Appuhamy v. De Silva – Where P sued Ds on a joint debt & obtains judgment against D1 & withdraws his action against D2,D is barred from suing D2 on the same cause of action a second time.

Saiboo v. Abuthahir – Bond stated that the principal sum is payable on demand and that the interest must be paid for a period 4 years once in 6 months & thereafter monthly. Held – Here the covenants regarding the payment of the principal sum & the interest are separate & independent. So an action to recover the interest will not bar a later action to recover the principle amount.

Banda v. Karohamy – A D is bound to set up by way of defence, every ground available to him. If he fails to do so, he cannot in a subsequent action be permitted to rely on the self same ground in support of his claim. BUTMadan v. Nana Andy – D, in his action pleaded that he was public servant and claimed the benefit of the Public Servants Liabilities Ord. His plea was rejected & judgment was entered against him. In execution proceedings, D sought to raise the plea again. Held – D could raise the plea. The previous finding did not operate as res judicata.

Mohamed Cassim v. Mahmood Lebbe – A decree operates as res Judicata only as between parties or those claiming through such parties. It does not operate in actions brought by / against persons whose interest is almost identical with that of one of the parties to the first action but who do not actually claim through such party.

Punchi v. Tikiri Banda – P applied for maintenance in respect of illegitimate child but later withdrew her case on the date of trial saying that she had not enough evidence to prove paternity. Later, she filed a second action in respect of the same child.Held – the order of dismissal in the first action operated as a bar to the second action.

Ponniah v. Sheriff – The court is not bound by an earlier action in which material cases & statutory provisions were not considered.

Vajiragnana Thero v. Gintota Anomadassi Thero – P of the first action died pending the first action. The first action was abated on the ground that the cause of action did not survive the death of P. Held – it is competent for the deceased P’s successor in title to institute a fresh action against the same D for similar relief.

Fernando v. Fernando – A plea based on facts which did not exist at the time of the 1st action but which came into existence subsequently cannot be said to be one which could have been raised in the 1st action. If a right accrues after the institution of an action, the P is not bound to put in issue that right the moment it accrues to him.

Nilabdeen v. Farook – An order regarding possession made in criminal proceedings (s. 66 action) does not operate as res judicata in respect of the questionof title arising in a subsequent civil action.

Suppiah Veeravagu v. Wilson Samarawicrema – The doctrine of res judicata applies only to a judgment of a court of competent jurisdiction.

Jayasinghe v. Kiribindu – An erroneous decision of law does not prevent the court from deciding the same question arising between same parties in a subsequent action according to law (unlike a decision on a question of fact or of mixed law & fact).

Godagama Chulankara Thero v. Lavndris – Dismissal of the 1st action due to formal defect in the plaint will not terminate the actual controversy by a judgment. The P is entitled to file a 2nd action for the same relief as the res judicata does not operate in such an instance.

Classification of Decrees s. 217

A decree of court may command the person against whom it operates to (a) pay money(b) deliver movable property(c) yield up possession of movable property(d) grant / convey / otherwise pass from himself any right to / interest in any property(e) do any act not falling under any one of the foregoing heads(f) enjoin that persons are not to do a specific act / to abstain from specific conduct / behaviour(g) declare a right a / status.

The End..