IN THE SUPREME COURT OF THE SOCIALIST DEMOCRATIC REPUBLIC OF SRI LANKA In the matter of an Application for Leave to Appeal against Judgment dated 01/03/2011 delivered by the High Court of Western Province exercising civil appellate jurisdiction at Kalutara in WP/HCCA/Kalutara/02/2010 (Revision) D.C. Kalutara 5350/L.

SC Appeal No. 97/2011 SC/HCCA/LA 121/2011 WP/HCCA/Kalutara/02/2010 (Rev) Matilda Herathge, of No.1118 F, Jayawardena Avenue, Matugama D.C. Kalutara Case No. 5350/L Road, Nagoda, Dodamgoda.

Plaintiff Vs.

Halowita Arachchige Dayananda, of No.1118E, Jayawardena Avenue, Matugama Road, Nagoda, Dodamgoda Defendant AND Matilda Herathge, of No. 1118F, Jayawardena Avenue, Matugama Road, Nagoda, Dodamgoda Plaintiff - Petitioner Vs.

Halowita Arachchige Dayananda, of No.1118E, Jayawardena Avenue, Matugama Road, Nagoda, Dodamgoda –

AND NOW BETWEEN Matilda Herathge, of No. 1118F, Jayawardena Avenue, Matugama Road, Nagoda, Dodamgoda Plaintiff – Petitioner – Appellant Vs.

Halowita Arachchige Dayananda, of No. 1118E, Jayawardena Avenue, Matugama Road, Nagoda, Dodamgoda Defendant-Respondent-

Respondent Before: Buwaneka. P. Aluwihare, PC, J.

Vijith K. Malalgoda, PC, J. E. A. G. R. Amarasekara, J.

Counsel: Ms. Sudarshani Coorey for the Plaintiff-Petitioner- Appellant Argued on: 11^th January 2021 Decided on: 19^th October 2023 E. A. G. R. Amarasekara, J.

The leave to appeal application relevant to this appeal was filed by the Plaintiff Appellant Petitioner (hereinafter sometimes referred to as the Plaintiff) against the order dated 01.03.2011 made by the learned High Court Judges of the Civil Appellate High Court of the Western Province after the hearing of a revision application made to that Court. Being aggrieved by the order dated

11.12.2009 made by the learned Additional District Judge of Kalutara in case no. 5350/L, the Plaintiff made the aforesaid revision application to the said High Court. The learned District Judge made the said order refusing to accept a land registry folio G /63/221 which had also not been listed in terms of the provisions of the Civil Procedure Code, when the Plaintiff attempted to mark the said folio in evidence as P7 (marked as P10 with the Petition) during re-examination of the Plaintiff. The Plaintiff had argued before the learned Additional District Judge that, since there is a reference to this G/63/221 in the folio marked as V2, no harm would be caused to the Defendant Respondent Respondent (hereinafter sometimes referred to as the Defendant) by allowing to produce this document in evidence during re-examination and producing it in evidence would help to answer the matters in issue. The Defendant objected to the document as neither was it listed in terms of the law nor was shown during cross- examination. It was further stated on behalf of the Defendant before the District Court that documents cannot be marked during the re-examination; perhaps counsel for the Defendant would have meant that new evidence contained in documents cannot be allowed through re-examination- vide proceedings dated 11.12.2009 before the District Court).

As per the order made, the learned Additional District Judge has refused to allow the Plaintiff to mark the document stating that as per the provisions of Section 138(3) of the Evidence Ordinance, a document cannot be marked without permission, therefore, P7 (P10 with the Petition) was not allowed to be marked as evidence. I must state that what the learned Additional District Judge meant by “without permission’ is not clear as the objection was raised when the permission was asked by the lawyer for the Plaintiff. Perhaps, what he meant would have been that there was no proper application due to the fact that when permission was sought it was not revealed that it was not listed in terms of section 175(2) of the Civil Procedure Code or it contains new evidence as contemplated in section 138(3) of the Evidence Ordinance. It must be noted here that a document cannot be produced in evidence