THE JUDICIAL INDEPENDENCE

Welcome to the symposium On civil Law

PRE TRIAL STEPS AND CONDUCT

OF CIVIL TRIALS. PRE TRIAL STEPS AND CONDUCT

OF CIVIL TRIALS.

CONDUCT OF CIVIL TRIALS AND PRE TRIAL STEPS IN CIVIL DISPUTES

Prevent unnecessary delay

Encourage settlement

Decreases cost of litigation

Facilitate the effective use of judicial resources.

Civil procedure is aimed at setting the Civil Law in motion by the State/Private or Unincorporated Bodies for redress against denial of a right, refusal to fulfil an obligation, neglect to perform a duty and infliction of an affirmative injury.

SUBSTANTIVE LAW AND PROCEDURAL LAW

Rights and duties are created by substantive law e.g Law of Contract, Torts ect. and Procedural Law is the vehicle that conveys a suitor to his destination to reap the benefit of the substantial Law

Regular procedure contemplates on the defendant’s right to answer the allegations made in the plaint before the pronouncement of the judgement. Under summary procedure the applicant supports the contents of his petition by the affidavit and other evidence (by way of exhibits) and the court after consideration of the same, if a prima-facie case is established immediately passes an order on the defendant on condition that if no opposition is shown that the order will be made absolute.

The court is also empowered under summary procedure to enter interlocutory order appointing a day for the determination of the matter of the petition and intimating to the respondents that he will be heard in opposition. This type of orders are made under 377 (b) of the code.

The Court within the local limits of whoseA) jurisdiction' a party defendant resides,  B) Where the land in respect of which the action is bought lies or is situate in whole or in part,  C) Where the cause of action arises, or  D) Where the contract sought to be enforced was made.

39. Whenever any defendant or accused party shall have pleaded in any action, proceeding or matter brought in any Court of First Instance neither party shall afterwards be entitled to object to the jurisdiction of such court, but such court shall be taken and held to have jurisdiction over such action, proceeding or matter: Provided that where it shall appear in the course of the proceedings that the action, proceeding or matter was brought in a court having no jurisdiction intentionally and with previous knowledge of the want of jurisdiction of such court, the Judge shall be entitled at his discretion to refuse to proceed further with the same, and to declare the proceedings null and void.

CAN JURISTIC PERSONS SAID TO RESIDE AT THE REGISTERED OFFICE In Blue Diamond Diaond Ltd Vs Amsterdam Vs Rotterdam Bank N.L 1993 2 SLR 249 it was held that question as to whether a company could be sued on the basis that the Company being 'resident' at a particular place and it was held that a juristic person cannot be sued on the basis of it being resident at a particular place. Supreme court 

CAN JURISTIC PERSONS SAID TO RESIDE AT THE REGISTERED OFFICE In Blue Diamond Diaond Ltd Vs Amsterdam Vs Rotterdam Bank N.L 1993 2 SLR 249 it was held that question as to whether a company could be sued on the basis that the Company being 'resident' at a particular place and it was held that a juristic person cannot be sued on the basis of it being resident at a particular place. Supreme court 

Martin Silva v. Central Engineering Consultancy 2003 SLR 2 228 (Court of Appeal) it was held that despite the failure to effect the legislative clarification as spelt out in the Civil Courts Commission Report, that a liberal interpretation is permissible to include a corporate body as residing at its registered office, where there is no other place of business."

Somasiri Vs Ceylon Petroleum Corporation 1991 SLR 39 if the residence of the defendant is not distinctly averred it is not a ground to reject a plaint if the principal place of business is situated within the jurisdiction of court.

Somasiri Vs Ceylon Petroleum Corporation 1991 SLR 39 if the residence of the defendant is not distinctly averred it is not a ground to reject a plaint if the principal place of business is situated within the jurisdiction of court.

Davith Appuhamy v Perera 11 NLR150 A mortgage bond action based on immovable property, should be

filed within the territorial limits of the court where the mortgaged property is situated

APPUHAMY VS. GUNASEKARA 2 NLR 155 AN ACTION BY A LESSEE OMPELLING HIS LESSOR TO ACCEPT RENTAL CANNOT BE CONSIDERED AS AN ACTION RELATING TO LAND SINCE THE CLAIM IS BASED ON THE LEASE AGREEMENT.

Pelis Vs Silva 60 NLR 289 an action for specific performance of an agreement to sell land was held not to be an action in respect of land within the meaning of section 9 (b) of the Civil Procedure Code. A Court, therefore, has no jurisdiction to try the case merely on the ground that the land in respects of which the contract was made is situated within the local limits of its jurisdiction.

Ranghamy vs Kirihamy 7 NLR 357. Plaintiff in that case sued the defendant in the District Court of Kandy. Here, the defendants were resident outside Kandy and the land itself was situated outside. The District Court of Kandy was yet held to have had jurisdiction by reason of the fact that the lease agreement was entered into in Kandy

Ranghamy vs Kirihamy 7 NLR 357. Plaintiff in that case sued the defendant in the District Court of Kandy. Here, the defendants were resident outside Kandy and the land itself was situated outside. The District Court of Kandy was yet held to have had jurisdiction by reason of the fact that the lease agreement was entered into in Kandy

Nallathambi Vs Kurukkal 57 NLR 166, an action for the redemption of an OTTY mortgage (where the mortgager reaps only the benefits or fruits of the property) and for the release of the mortgaged land from the mortgage was considered a dispute affecting an interest in land and can, therefore, be brought in the court within the local limits of whose jurisdiction the land in question is situate.

Nallathambi Vs Kurukkal 57 NLR 166, an action for the redemption of an OTTY mortgage (where the mortgager reaps only the benefits or fruits of the property) and for the release of the mortgaged land from the mortgage was considered a dispute affecting an interest in land and can, therefore, be brought in the court within the local limits of whose jurisdiction the land in question is situate.

It requires that the plaint should contain a plain and concise statement of the circumstances constituting each cause of action and where and when it arose and such statement shall be set forth in duly numbered paragraphs; and where two or more causes of action are set out the statement of the circumstances constituting each cause of action must be separate and numbered.

It requires that the plaint should contain a plain and concise statement of the circumstances constituting each cause of action and where and when it arose and such statement shall be set forth in duly numbered paragraphs; and where two or more causes of action are set out the statement of the circumstances constituting each cause of action must be separate and numbered.

If the plaint had been accepted and summons issued on the defendant, it is not a matter for the court to act under 46 (2) but for the defendant to raise the point in his answer. This principle was laid down for the case of Mohideen Vs Gnanaprakasam 14 NLR 33.

If the plaint had been accepted and summons issued on the defendant, it is not a matter for the court to act under 46 (2) but for the defendant to raise the point in his answer. This principle was laid down for the case of Mohideen Vs Gnanaprakasam 14 NLR 33.

When a plaint or an answer is not rejected by a District Judge under section 46 or section 77 of the Civil Procedure Code for deficiency of stamps, the presumption is that the Judge has adjudicated in favour of the party who had tendered the pleading on the question as to the sufficiency of the stamp thereon. See Jayawickrama Vs Amarasooriya 17 NLR 174.

When a plaint or an answer is not rejected by a District Judge under section 46 or section 77 of the Civil Procedure Code for deficiency of stamps, the presumption is that the Judge has adjudicated in favour of the party who had tendered the pleading on the question as to the sufficiency of the stamp thereon. See Jayawickrama Vs Amarasooriya 17 NLR 174.

It is well established principle of law that the plaint cannot be dismissed on the ground of insufficiency of stamps alone. (37 NLR 436).

It is well established principle of law that the plaint cannot be dismissed on the ground of insufficiency of stamps alone. (37 NLR 436).

Sita Rajasingham Vs Maureen Seneviratne and another (Supreme Court) S.C. 5/93 C.A. 194/91 1995 2 SLR 69.in the absence of any statutory provision in relation to the petitions filed under section 86 of the CPC, requiring that stamps should be supplied at the time of its presentation; or that such a petition filed without stamps is valueless is no ground to reject an application.

Sita Rajasingham Vs Maureen Seneviratne and another (Supreme Court) S.C. 5/93 C.A. 194/91 1995 2 SLR 69.in the absence of any statutory provision in relation to the petitions filed under section 86 of the CPC, requiring that stamps should be supplied at the time of its presentation; or that such a petition filed without stamps is valueless is no ground to reject an application.

The proper procedure to be followed when pleadings are not stamped or insufficiently stamped is to call for the stamps to be provided with and upon failure to reject the plaint or other pleadings. (Vide Yusuf Mohamed Vs Indian Overseas Bank 1999 3 SLR 278 and 1999 1 SLR 332.

The proper procedure to be followed when pleadings are not stamped or insufficiently stamped is to call for the stamps to be provided with and upon failure to reject the plaint or other pleadings. (Vide Yusuf Mohamed Vs Indian Overseas Bank 1999 3 SLR 278 and 1999 1 SLR 332.

P Beatrice Perera Vs Commissioner of National Housing were reported in 77 NLR at page 361Judgement delivered without service of summons is ab initio void and can be attacked in the original court itself.

P Beatrice Perera Vs Commissioner of National Housing were reported in 77 NLR at page 361Judgement delivered without service of summons is ab initio void and can be attacked in the original court itself.

JOYCE PERERA V. LAL PERERA 2003 3 SLR 8 Civil Procedure Code, sections 55 (1), 84, 85 (1), 377, and 754 (1) - Summons not served - Order nisi served in respect of alimony pendente lite - Objections filed - Answer not filed - Application for alimony pendente lite withdrawn - Case fixed for ex parte trial - Legality - Is this order a judgment?

In Meeralewai vs. Seenithamby 48 NLR 140 Summons was served on the Defendant in substituted form at his residence which was the last known place of abode according to the Plaintiff. The Defendant was in fact at the Mahara Prisons as last known to the Plaintiff. The service was held to be invalid.

Dharmasena And Another Vs The People's Bank SUPREME COURT 2003 SLR 1 122"The Code must be interpreted as far as possible, in consonance with the principles of natural justice, and the court can only be satisfied that summons had been "duly served" where the defendant has been given a fair opportunity of presenting his case in his answer. If not, the court has the power to give further time for answer even if the defendant does not ask." Held further that the order of the learned district judge refusing to fixed the matter for exparte trial is quite correct.

Jayasiri Edirisinghe Vs City Properties (Pvt) Ltd..,(CHC) peal No. 34/08, S.C.H.C.L.A. 18/08, H.C. Civil) 47/2006(01). The discretionary power to amend pleadings must be exercised subject to the limitations set out in Section 46(2). No amendment is to be made which has the effect of converting an action of one character into an action of another or inconsistent character. The appellate court would be hesitant to interfere with the exercise of such a discretion by the trial Judge. This discretion could be viewed from the perspective of the flexibility and the choice granted to the trial judge based upon a consideration of all factors involved. This judicial discretion of the Court must be exercised so as to do justice in a case that is being tried with the ascertainment, declaration and enforcement of the rights and liabilities of the parties as they exist or are deemed to exist at the time the proceedings were instituted.

Rathwatte v. Owen 2 NLR 141 the court stated that the principle by which a Court ought to be guided in deciding to alter a pleading is that the alteration will make the real issues clear.

Casim Lebbe v. Natchiya 21 NLR 205 it was held that a bonafide Amendment which does not cause prejudice to the other party should be allowed.

Vipassi Nayake Thero vs. Jinarathane Thero 66 CLW 43 it was held that there should not be an objection to a correction sought to be made facilitating the court to identify the real issue between the parties. This principle should however operate subject to the condition that no injustice is done to the opposite party.

Vipassi Nayake Thero vs. Jinarathane Thero 66 CLW 43 it was held that there should not be an objection to a correction sought to be made facilitating the court to identify the real issue between the parties. This principle should however operate subject to the condition that no injustice is done to the opposite party.

Lebbe vs. Sandanam 64 NLR 461

(a) If the amendment sets up a new case.(b) If the amendment converts an action of one character into an action of another character.(c) If the amendment has the effect of defeating an objection based on prescription made by the other party. (d) If the amendment adds a new cause of action. (e) An amendment which prejudices the rights of the opposite party. (f) If the amendment changes the substance and the essence of the original action. 

Uberis v.jayawardene 62 NLR 217

An action in respect of one land cannot be converted into an action in respect of another land by an amendment of pleadings

Abeywardene v. Euginahamy 1984 2 SLLR 231

Belatedness of the application for amendment is not a ground for refusing the application AS FAR AS the Amendment of the plaint does not seeking to widen the scope or alter the character of the action and No new cause of action is averred. Merely seeking to elucidate the title in the original plaint BY THE AMENDMENT SHOULD BE PERMITTED.

De Alwis v. De Alwis - 76 NLR 444 it was laid down as a rule that a Court will not allow to set up a claim by an amendment of the plaint if a fresh claim would be barred by prescription at the date of the application to amend the plaint. However, where there are special and peculiar circumstances which require the amendment to be ordered in the interests of justice the provisions of section 93 of the Civil Procedure Code are wide enough to allow such an amendment.

Gunasekera v. Abdul Latiff 1995 1 SLR 225 that an application for an Amendment should not be allowed unless the delay is explained. In A vudiappan v. Indian Overseas Bank Ltd 1995 2 SLR 131 it was held that "laches" mean delay that cannot be reasonably explained.

In the recent case of Kuruppuarachchi v. Andrea

1996 2 SLR 11 it was held that consequent to the 1991 amendment a Court is precluded from allowing an Amendment once a matter is fixed for trial . except for the reasons set out in the subsection to Section 93.

Ceylon Insurance Co. Ltd. V. Nanayakkara 1999 3 SLR 50 an amendment should not be allowed unless the Court is satisfied that; a) Grave and irremediable injustice will be caused to the party applying, and b) That such party is not guilty of Laches. It was further held in this case that the Court must be satisfied about both reasons above and then record the reasons for its order.

Hatton National Bank v. Silva 1999 3 SLR 113 the plaintiff had instituted action against the Defendants, and later sought to add a cause of action based on damages. The application was allowed by the trial Judge. However, it was held by the Court of Appeal that the Amendment should not have been allowed since it introduces a new cause of action.

 In Gunasekera v. Punchimenike 2002 2 SLR 43 IT WAS ALID DOWN THAT no amendment should be allowed once an ex-parte trial has been ordered.

Seylan Bank v. Thangaveil 2004 2 SLR 101 Court of Appeal had to consider the question whether the Caption of a plaint could be amended to correct the name of the party. In this case the correct surname of the defendant was put in the caption but his other names were incorrect. It was held by Wimalachandra J that such an error would not be one which is contemplated under Section 93 of the Code and that such error amounts to a correction of a clerical error.

The right to postpone a trial is indispensable in any system of justice, for without that right the system can collapse altogether because it can result in a miscarriage of justice, if a postponement on a genuine ground is unreasonably turned down. The Code provides that when any case is called for hearing, the court may, for sufficient cause, postpone the hearing to another day, upon such terms as to costs or otherwise as the court shall think fit.

*After the case is fixed for trial there is nothing in the Civil Procedure Code to the abate an action if a period of twelve months elapses after the last entry of an order or proceeding in the record without the plaintiff taking a necessary step to prosecute his cause.

It is the duty of court to fix a day for the hearing of a case, and not to wait for an application of a party. The case of Fernando vs. Curera, 2 N.L.R. 29 amply recognizes the rule as to who should take the initiative to fix a case for hearing.

*an order of abatement of an action can be made under section 402 of the Civil Procedure Code only if the plaintiff has failed to take a step rendered necessary by the law. It was further emphasized that when an order " laying by " a case has been made by a Court, the duty of restoring the case to the trial roll rests on the Court and not on the parties.

In Suppramaniam v. Symons [1 (1915) 18 N. L. R. 229]

*After the case is fixed for trial there is nothing in the Civil Procedure Code to abate an action if a period of twelve months elapses after the last entry of an order or proceeding in the record without the plaintiff taking a necessary step to prosecute his cause. In this context plaintiff includes a defendant who has preferred a claim in reconvention.

*when an order

*" laying by " a case has been made by a Court, the duty of restoring the case to the trial roll rests on the Court and not on the parties.

*Abating a suit could not be made without notice to parties. If an order under 402 is made without notice, it was said that it would destroy the very foundation of the right to have notice. Therefore, Judges who desire to act ex mero motu under section 402 should not ignore the view expressed in Suppramaniam v. Symons

*Abating a suit could not be made without notice to parties. If an order under 402 is made without notice, it was said that it would destroy the very foundation of the right to have notice. Therefore, Judges who desire to act ex mero motu under section 402 should not ignore the view expressed in Suppramaniam v. Symons

*IF THE LAST ORDER MADE BY THE DISTRICT JUDGE BEFORE ENTERING THE ORDER OF ABATEMENT WAS "NO ORDER" THERE WAS NO FAILURE ON THE PART OF THE PLAINTIFF TO TAKE ANY NECESSARY STEP TO PROSECUTE THE ACTION.

*See Associated Newspapers of Ceylon, Ltd. v. Kadirgamar and Lorensu Apphamy v. Paaris.

* [1 (1934) 36 N.L.R. 108.]

*[2 (1908) 11N.L.R. 202.]

*Application for postponements due to absence of witnesses should be considered in the light of the culpability of a party who relies on the evidence of absent witnesses.

*The ground, relied upon was the absence of a material witness who was duly summoned. The court held that the postponement applied for should have been allowed. Sammy Singho vs. Henry Silva.

50 N.L.R. 192

* In Fernando v. Andiris there was no material to show that the evidence of the plaintiff was necessary to continue with the plaintiff’s action. However the plaintiff moved for an adjournment and the same was refused. It was pointed out that the plaintiff's Proctor should have called such evidence as was available on behalf of the plaintiff and should not have declined to call any evidence after the refusal of the application for postponement and there being no evidence, the order of the District Judge dismissing the plaintiff's claim was justified. (1905)2 A.C.R.141

* 

* (1905) 2 A. C. R. 141.]

*SUBSEQUENT TO THE CLOSURE OF THE PLAINTIFF’S CASE THE DEFENDANT LED THE EVIDENCE OF ONE WITNESS AND THEREAFTER AT THE RESUMPTION OF THE TRIAL DEFAULTED IN HIS APPEARANCE.

*CAN THE TRIAL BE REGARDED AS INTERPATES? IN SUCH A SITUATION, IT WAS LAID DOWN THAT THE ONLY COURSE WHICH THE COURT COULD HAVE ADOPTED WAS TO ENTER DECREE NISI IN FAVOUR OF THE PLAINTIFF IN TERMS OF SECTION 85 OF THE CPC AND THAT IN SUCH A CASE THE COURT CANNOT GIVE JUDGEMENT TO THE PLAINTIFF ON THE BASIS THAT THE DEFENDANT DID NOT INTEND TO LEAD ANY FURTHER EVIDENCE. JOHANIS APPUHAMY VS CARLINCHO

* 

*67 N.L.R. 144

*UPON REFUSAL OF POSTPONEMENT, Counsel has no right to withdraw from the case without the consent of the Judge, and that it is his duty as an advocate to proceed as far as he can with the examination of the witnesses called by the opponent, and to adduce all the evidence he has on his own side, and if it then transpires that the evidence of a particular witness whose absence was the cause of the application being made was material, the trial Judge may at that stage allow a postponement.

*Section 109 (1) of the CPC - for failure to comply with any order to answer interrogatories, or for discovery, production, or inspection, which has been duly served. In case of the defendant, such failure may result in the defence, if any, be struck out, and he be placed in the same position as if he had not appeared and answered. Failure to comply with such orders may even result in the possibility of the defaulter being found guilty of the offence of contempt of court.

*However, it is trite Law that the dismissal of an action under section 109 of the Civil Procedure Code can only be imposed on a party who is guilty of wilful or contumacious refusal to carry out an order to answer interrogatories.

3rd plaintiff, who was a resident in Beirut, failed to comply with an order to answer interrogatories as the time given was insufficient. Hence, the court held that the 3rd plaintiff could not be said to have been guilty of contumacious or wilful refusal to carry out the order. Therefore, the order dismissing the action in terms of section 109 of the Civil Procedure Code was set aside.

* FOR VALID REASONS RECORDED COURT CAN DEVIATE FROM THE RULE AS TO DAY TO HEARING AND REFRAIN FROM FIXING FURTHER HEARING WITHIN 6 WEEKS FROM THE LAST DAY.

*AS FAR AS PRACTIBLE THE CONCEPT REGARDING DAY TO DAY HEARING, WOULD BRING IMEMNSE BENEFIT TO THE PARTIES

WHAT IS DISCRETION? IS IT WHAT THE JUDGE WISHES TO GIVE EFFECT TO?

“The person in whom is vested a discretion must exercise his discretion upon reasonable grounds. A discretion does not empower a man to do what he likes merely because he is minded to do so-he must in the exercise of his discretion do not what he likes but what he ought. In other words, he must, by use of his reason, ascertain and follow the cause which reasons direct. He must act reasonably”.

Roberts vs. Hopwood and others1925 AC page 578 at page 613 where Lord Wrenbury (House of Lords)

*1. IT HAS TO BE OF CONSENT OF PARTIES IF THE CASE IS TO BE DECIDED ON THE FAILURE TO PAY COSTS.

*Etena vs. Appu 4N.L.R.185

*Weerasingha 47N.L.R. 281

*Simon Sinno vs. William Appuhamy,

* when pre-payment of costs is ordered, a particular time is also fixed in the order before which the payment of cost must be made. In that event, the payment must be in compliance with the time mentioned.

6 Cey. L. Rec. 99

1. Dismissal of plaintiffs case, NOT JUSTIFIED because cost of an adjournment, granted at the plaintiffs instance, had not been paid as ordered.

2. It is the duty of the fiscal to serve summons for attendance of witnesses. His failure is not a default of the plaintiff.

*Where a party to an action has been granted time to produce certain evidence and fails to do so at the hearing, the court has no power to dismiss the action. It must proceed to hear such other evidence as may be tendered on behalf of the party in default and decide the action forthwith."

COURT HAS NO POWER TO DISMISS AN ACTION IF A PARTICULAR WITNESS OR DOCUMENT NOT PRODUCED CONSEQUENT UPON THE ADJOURNMENT FOR THAT PURPOSE

Under sections 143 of the Code adjournment is entirely discretionary. Under section 145 of the Code, if a party to whom time has been granted fails to produce his evidence or to bring his witnesses or to do any other act necessary for the further progress of the case, for which time has been allowed, the Court has power notwithstanding such default, to decide the action forthwith.When the defendant repeatedly seeks adjournments on one ground or the other and fails to bring evidence, the Court should proceed to decide the suit by rejecting the adjournment application. It is appropriate for the court to dispose of the suit on merits on the available evidence". ABREW VS. HOUSING DEVELOPMENT AND FINANCE CORPORATION AND OTHERS.

2006 (2) S.L.R. 365

Ramanaden Chetty vs. Fernando, an application for a postponement by the defendants was granted on their consenting to pay Rs.75 to the plaintiff as his costs of the day along with a sum of Rs.6.50 before the next date of trial. In default of such payment the defendants agreed to judgment being entered as prayed for. On the trial date the defendants tendered the money but the plaintiff refused to accept it and claimed judgment. The District Court held in favour of the defendant and postponed the case for trial sine die. The Supreme Court upheld the plaintiffs

24 N.L.R. 411

Punchi Nona vs. Peiris, a postponement of the trial was granted to the defendant on his consenting to pay the plaintiff a fixed sum of money by way of costs before the next date of trial. The defendant also agreed to judgment being entered for the plaintiffs if he made default in the payment of costs. The defendant defaulted in the payment of the costs but pleaded that this was due to his being hindered by the floods. The appellate Court held that the Court had no power to grant relief to the defendants against the breach of the undertaking to pay costs in terms of the agreement. 26 N.L.R.411

*In the latter case, the plaintiff undertook to pay the defendant a stipulated amount as costs before 10 a.m. of a specified date. He agreed to his action being dismissed in the event of default. The plaintiff who failed to make the payment of costs as agreed attempted to prove impossibility of performance without success. The court in appeal held that his action was liable to be dismissed in accordance with his agreement.

*

*In the latter case, the plaintiff undertook to pay the defendant a stipulated amount as costs before 10 a.m. of a specified date. He agreed to his action being dismissed in the event of default. The plaintiff who failed to make the payment of costs as agreed attempted to prove impossibility of performance without success. The court in appeal held that his action was liable to be dismissed in accordance with his agreement.

*

The rule, however, is applicable even where the terminal date fixed for the payment of costs falls on a Sunday or on a holiday. Simon Singho vs. William Appuhamy, 26 N.L.R.408

*Defendant was granted a postponement upon his undertaking to pay Rs.75 a particular day that was a Poya day. If payment was not made according to the undertaking the defendant agreed to judgment being entered for the plaintiff.

*Costs tendered on the next day as he was unable to pay the money on the previous day because, it was declared a holiday. It was held in appeal that the undertaking to pay costs simpliciter did not imply payment into Court. Accordingly, the failure to make payment on 10th September, 1969 brought into operation the consequences provided for in the agreement.

*Defendant was granted a postponement upon his undertaking to pay Rs.75 a particular day that was a Poya day. If payment was not made according to the undertaking the defendant agreed to judgment being entered for the plaintiff.

*Costs tendered on the next day as he was unable to pay the money on the previous day because, it was declared a holiday. It was held in appeal that the undertaking to pay costs simpliciter did not imply payment into Court. Accordingly, the failure to make payment on 10th September, 1969 brought into operation the consequences provided for in the agreement.

Francis Wanigasekera vs. Pathirana, 1997 (3) Sri L.R. 231

The 2nd defendant-appellant was present and represented by an Attorney-at Law when the order for prepayment was made. The proceedings have a statement that the defendant-appellant agreed to the prepayment order. What more than this is necessary to indicate the consent to prepay cost. The defendant had not signed the record, if that is what is sought to be argued as being what is required to signify consent, I cannot subscribe to this view where the party agreeing to the prepayment is present and is represented by an Attorney-at-Law and signified in the proceedings as having agreed to comply with the prepayment order - this would satisfy the provisions of sections 82 142, 91A Civil Procedure Code.

*Section 24 of the Civil Procedure Code is demonstrative that an appearance of a party may be by an attorney-at-law. When the client requested attorney-at-law to make an application it is an application the attorney-at-law makes on behalf of the party he represents for the administration of justice.

*Isek Fernando vs Rita Fernando - 1999 3 SLR at page 29

*Section 24 of the Civil Procedure Code is demonstrative that an appearance of a party may be by an attorney-at-law. When the client requested attorney-at-law to make an application it is an application the attorney-at-law makes on behalf of the party he represents for the administration of justice.

*Isek Fernando vs Rita Fernando - 1999 3 SLR at page 29

the main question that arose for determination in that case was whether a settlement entered in the presence of an attorney-at-law of a party who was absent in court can assail the settlement on the ground that he was not present in court at the time the attorney-at-law adjusted the matter.

HELD that the attorney-at-law for the petitioners had acted within the authority granted to him by the proxy and therefore the settlement cannot be assailed  merely on the ground of the party not being present in court at the time the compromise was recorded.

* 49. (1) The plaintiff shall endorse on the plaint, or annex thereto, a memorandum of the documents, if any, which he has produced along with it

* 50. If a plaintiff sues upon a document in his possession or power, he shall produce it in court when the plaint is presented.

* 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.

* 53. In the case of any action upon a bill of exchange, promissory note, cheque, or any negotiable instrument, if the instrument is lost, and if an indemnity be given by the plaintiff, against the claims of any other person upon such instrument, the court may make ENTER decree.

* 54. A document which ought to be produced in court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint, and which is not produced or entered accordingly, shall not, without the leave of the court, be received in evidence on his behalf at the hearing of the action

*121 (2) Every party to an action shall, not less than fifteen days before the date fixed or the trial of an action, tile or cause to be filed in court after notice to the opposite party- (a) a list of witnesses to be called by such party at the trial, and (b) a list of the documents relied upon by such party and to be produced at the trial

*121 (2) Every party to an action shall, not less than fifteen days before the date fixed or the trial of an action, tile or cause to be filed in court after notice to the opposite party- (a) a list of witnesses to be called by such party at the trial, and (b) a list of the documents relied upon by such party and to be produced at the trial

175 (1) No witness shall be called on behalf of any party unless such witness shall have been included in the list of witnesses previously filed in court by such party as provided by section 121: Provided, however, that the court may in its discretion, if special circumstances appear to it to render such a course advisable in the interests of justice, permit a witness to be examined, although such witness may not have been included in such list aforesaid, Provided also that any party to an action may be called as a witness without his name having been included in any such list. (2) A document which is required to be included in the list of documents filed in court by a party as provided by section 121 and which is not so included shall not, without the leave of the court, be received in evidence at the trial of the action : Provided that nothing in this subsection shall apply to documents produced for cross examination of the witnesses of the opposite party or handed over to a witness merely to refresh his memory.

*"before the day fixed for hearing” MEANS the first date on which the trial is fixed for hearing. The question whether the trial Judge can allow the entire list of documents in the event of overruling an objection raised by a party in respect of a single document contained in such list, should be answered in the negative.

* Judge's finding that the plaintiff-petitioner’s objection was belated is an error as the procedure adopted in the original courts objecting to a document/witness, is namely, to object when the document in question is sought to be marked or when the witness in question is called to the witness box to give evidence.

"The learned District Judge refused the application because the plaintiffs ‘would be placed at a disadvantage if Inspector Sivasambo’s evidence was allowed to be called’. This is no doubt correct in a sense, but the paramount consideration is the ascertainment of the truth and not the readily understandable desire of a litigant to be placed at a tactical advantage by reason of some technicality”.

"The learned District Judge refused the application because the plaintiffs ‘would be placed at a disadvantage if Inspector Sivasambo’s evidence was allowed to be called’. This is no doubt correct in a sense, but the paramount consideration is the ascertainment of the truth and not the readily understandable desire of a litigant to be placed at a tactical advantage by reason of some technicality”.

Tikiri Banda vs. Loku Menika, (decided in 1968) the name of the witness was not included in list of witnesses. The district judge gave judgment in favour of the plaintiff upon the evidence of a witness whose name was not included in the list of witnesses filed in accordance with section 121 of the Civil Procedure Code. His Lordship Basnayaka CJ, taking a contrary view held that the evidence of the witness was illegally admitted, and his evidence could not form the basis of the judgment. 68N.L.R. 342

 INQUIRIESThe provisions of section 121(2) and 175(2) of the Civil Procedure Code relating to listing of documents do not apply to an inquiry under section 86(2) of the Civil Procedure Code to set aside a decree entered for default. These provisions are applicable only to trials of actions of regular procedure.” see Mercantile Credit Ltd. vs. Sisira Kumara and Another. 1991 (1) Sri L.R. 308

 INQUIRIESThe provisions of section 121(2) and 175(2) of the Civil Procedure Code relating to listing of documents do not apply to an inquiry under section 86(2) of the Civil Procedure Code to set aside a decree entered for default. These provisions are applicable only to trials of actions of regular procedure.” see Mercantile Credit Ltd. vs. Sisira Kumara and Another. 1991 (1) Sri L.R. 308

Walker & Sons Co. Ltd. vs. Masood, the list of documents relied upon by the plaintiff was not filed fifteen days prior to the date of trial. Upon it being objected to, the District Judge upheld the objection and rejected the document. The order of the District Judge was set aside by the Court of Appeal and the Supreme Court on special leave being granted held that the document has been referred to in the plaint, and in the answer by way of reply to the plaint and made the following pertinent observations before directing that the document should be accepted in evidence.2004 (3) Sri L.R 195

*The DC has the discretion in terms of Section 175 (2) to admit or to reject documents. The discretion of the trial Judge is exercised purely to meet the ends of justice and the refusal to receive the documents in question in evidence would in all probability prevent the trial Judge coming to a just and equitable determination. The Court in that case observed that the refusal to receive the documents in question in evidence would in all probability prevent the trial Judge coming to a just and equitable determination.

General rules as to the exception

where there is in the interest of justice to do so;where it is necessary for the ascertainment of the truth;where there is no doubt about the authenticity of the documents (as for instance certified copies of public documents or records of judicial proceedings);where sufficient reasons are adduced for the failure to list the document (as for instance where the party was ignorant of its existence at the trial).