IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA Niyakulage Dilruk Sanjeewa Fernando, No. 137, Nisalagiri Uyana, Boraegoda, Poruwadanda, Horana.

Plaintiff-Petitioner-Appellant SC/APPEAL/1/2025 SC/HCCA/LA 227/23 WP/HCCA/KAL/57/21/LA DC PANADURA 2564/L Vs.

1. Diyagama Vidanelage Somawathie Perera, No. 412, Ratiyagoda, Kuda Aruggoda, Aruggoda.

1A. Meddakandage Anilka Rohini Perera, (Substituted 1st Defendant)

No. 412, Ratiyagoda, Kuda Aruggoda, Aruggoda.

2. Meddakandage Anilka Rohini Perera, No. 412, Ratiyagoda, Kuda Aruggoda, Aruggoda.

Defendant-Respondents-Respondent Before: Hon. Justice P. Padman Surasena Hon. Justice E.A.G.R. Amarasekara Hon. Justice Mahinda Samayawardhena Counsel: Neomal Senathilleke with Vinura Jayawardena for the Plaintiff-Petitioner-Appellant.

Yuwin Matugama with Gihini Yapa for the Defendant-

Respondent-Respondents.

Argued on: 09.12.2024 Written submissions:

By the Appellant on 17.12.2024 By the Respondents on 20.12.2024 Decided on: 10.02.2025 Samayawardhena, J.

This appeal arises from the order of the District Court of Panadura dated 29.11.2021, wherein the Court upheld the objection raised by the defendant’s counsel to the marking of a document through the plaintiff and, further, rejected the entire list of witnesses and documents filed by the plaintiff including the said document, on the ground that the list had been filed out of time. On appeal, the High Court of Civil Appeal of Kalutara, by its judgment dated 28.04.2023, affirmed this finding.

I must make it clear that this judgment primarily focuses on the legal position as it stood prior to the significant changes made by the Civil Procedure Code (Amendment) Act, No. 29 of 2023 on this subject under consideration. However, this analysis is not a futile exercise as there are a large number of cases pending in District Courts and Appellate Courts that remain governed by the previous provisions in view of the transitional provisions embodied in section 21 of Act No. 29 of 2023. In addition, the principles enunciated herein may also serve as a guide for interpreting the current provisions where appropriate.

Pre-trial proceedings were introduced to the District Court for the first time by the Civil Procedure Code (Amendment) Act, No. 8 of 2017. Although it is widely regarded that filing the list of witnesses and documents constitutes a pre-trial step, this Act did not consider it to be so. Sections 121 and 175 of the Civil Procedure Code, which governed the filing of the list of witnesses and documents, were not amended by this Act to facilitate an effective pre-trial hearing. Therefore, it was permissible to file lists of witnesses and documents even after the pre- trial hearing. As the filing of the list of witnesses and documents was not considered a pre-trial step, section 80A, introduced by this Act, which debars pre-trial steps after the date fixed for the trial (unless grave and irremediable injustice would result from not permitting such steps and subject to costs), does not apply to the filing of lists of witnesses and documents. While this may have been an oversight on the part of the draftsman, at the time relevant to this appeal, sections 121 and 175 remained in force. Hence, the Court is bound to take cognizance of these provisions and cannot disregard them or introduce new words to give a different interpretation to those provisions.

Section 121(2) of the Civil Procedure Code, No. 2 of 1889, addressed only the filing of the list of witnesses. It provided that a list of witnesses shall be filed “within such time before the trial as the Judge shall consider reasonable, or at any time before the trial with the consent of the other side”. The filing of the list of documents, however, was primarily governed by sections 50-54. Section 50 required that if the plaintiff sues upon a document in his possession, it must be produced along with the plaint. Section 51 stipulated that if the plaintiff relies on any other documents, he must file