IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA In the matter of an Application to the Supreme Court for Leave to Appeal under Section 5C of the High Court of the Provinces (Special Provisions)

Amendment Act No. 54 of 2006 SC/Appeal 150/2016 SC/HCCA/LA/171/16 CP/HCC/KAN/37/2013(FA)

DMS 11288 (DC Kandy) D.J.M.G. Kusumawathie, Rajasinghapura, Dodanwella Plaintiff Vs.

H.M. Tikiri Banda Herath, No. 53., Dehideniya, Peradeniya Defendant AND THEN BETWEEN H.M. Tikiri Banda Herath, No. 53., Dehideniya, Peradeniya Defendant – Appellant Vs.

D.J.M.G. Kusumawathie, Rajasinghapura, Dodanwella Plaintiff - Respondent AND NOW BETWEEN H.M. Tikiri Banda Herath, No. 53., Dehideniya, Peradeniya Defendant – Appellant – Appellant Vs.

D.J.M.G. Kusumawathie, Rajasinghapura, Dodanwella NEW ADDRESS

94B, Godamuduna Dodanwela Murutalawa Plaintiff – Respondent – Respondent BEFORE: B.P. Aluwihare, P.C., J Vijith K. Malalgoda, P.C., J Murdu N.B. Fernando, P.C., J COUNSEL: Harith de Mel with Dulani Peiris and Lakindu Wijesundara instructed by Jayamuditha Jayasooriya for the Defendant-Appellant-Appellant.

Charitha N. Jayawickrema instructed by Poornima Gunasekara for the Plaintiff-Respondent-Respondent.

ARGUED ON: 23.06.2020 and 06.07.2020.

WRITTEN SUBMISSIONS: Written Submissions of the Defendant-Appellant-

Petitioner on 28.02.2017 Written Submissions of the Plaintiff-Respondent-

Respondent on 25.09.2016 DECIDED ON: 10.11.2023.

Judgement Aluwihare, P.C., J The Defendant-Appellant-Petitioner-Appellant (hereinafter the Defendant) sought Leave to Appeal against the Judgement of the Civil Appellate High Court of Kandy, which upheld the Judgment of the District Court of Kandy.

The Plaintiff-Respondent-Respondent (hereinafter the Plaintiff) filed action in the District Court of Kandy under Chapter LIII of the Civil Procedure Code to recover a liquidated sum of Rs. 184, 000 /- on a promissory note together with a further sum of Rs. 36, 800 /- and legal interest until the due execution of the decree. Summons were issued to the Defendant and the Defendant applied to court by way of a petition and affidavit for leave to appear and defend the action. The District Court allowed the Defendant to file an answer upon furnishing security and the Defendant sought to dismiss the action.

The Defendant by way of his answer admitted that the money-transaction took place but denied placing the signature on the Promissory Note and Deed No. 958 and contended that the signatures are forgeries. Defendant sought by way of a prayer to the Answer an order that the impugned promissory note be forwarded to the Examiner of Questioned Documents (hereinafter the EQD) for examination and a report to be tendered to Court. The contention of the Plaintiff on the other hand was that the Defendant placed his signature on the Promissory Note as well as the Deed No. 958 on the same day. The Deed was for an unrelated transaction and Hapugaskuburegedara Samel was a witness for both transactions.

To issue a Commission on the EQD sample signatures were tendered before the Registrar of the Court by the Defendant on 15.09.2006 but the EQD by a letter dated 27.11.2006 informed the Learned District Judge that the sample signatures were dissimilar from the document in question and requested the signatures of the Defendant in the ordinary course of affairs. Thereafter the Defendant provided the sample signatures along with amended draft Commission papers by way of a Motion dated 29.05.2007. The application was allowed by the Learned District Judge. Subsequently, it was reported that Deed No. 958 had been misplaced which was kept at the Registry for safekeeping and the Commission on the EQD was also not forthcoming. Eventually the document was found in the custody of the Registry. It seems owing to the administrative lapses and the Defendant’s conduct a conclusive Commission of the EQD was unavailable.

On 27.08.2012 as the Defendant was absent and unrepresented, the case was fixed for ex-parte trial ag