CENTRAL FINANCE COMPANY PLC

CENTRAL FINANCE COMPANY PLC

VS.

CHANDRASEKERA AND ANOTHER

SUPREME COURT
JAYAWARDENA, J.
DEHIDENIYA, J.
FERNANDO, J.
SC/APPEAL/37/2013
CHC/440/2008/MR
NOVEMBER 1, 2018

Civil Procedure Code, sections 114, 154, 165-Affidavit evidence-Marking of documents in evidence-Judicature Act, section 48- Continuation of a trial commenced before the predecessor judge-Duty of the judge to call for all marked documents before writing the judgment-Actus curia neminem gravabit

The plaintiff tendered to court by way of a motion the affidavit evidence of the main witness, with a copy served on the defendant's attorney. At the trial, formal evidence of that witness was led followed by cross-examination and re-examination in the belief that the said affidavit evidence had been filed of record. The plaintiff called another witness and closed its case. The defendant did not call evidence. The judge before whom evidence had been led was elevated as a judge of the Court of Appeal before the judgment was delivered. The succeeding judge who

took over the burden of writing the judgment, having found that the affidavit evidence of the principal witness for the plaintiff was not in the case record, dismissed the plaintiffs case for want of evidence. On appeal before the Supreme Court, it was pointed out that unbeknownst to both parties and the trial judge, the affidavit evidence had been mistakenly filed in a wrong case record due to a wrong case number having been stated on the affidavit and the motion filed with it.

Held :

1. Sections 114, 154, 165 of the Civil Procedure Code set out the manner in which documents should be produced and marked in evidence at a civil trial and should be followed in the original civil courts. Neglecting to do so usually leads to mistakes, delay and substantial prejudice to the parties.

2. Even where there has been a lapse on the part of a party to ensure that the documents marked in evidence at the trial are before the court when a case is reserved for judgment, there is an overarching duty placed upon the court to ensure that all such documents are before the judge and are given due consideration in the judgment.

3. A court of justice will not permit a suitor to suffer by reason of its own wrongful act and it is under a duty to use its inherent powers to repair the injury done to a party by its own act. The time-honoured maxim actus curia neminem gravabit (an act of court shall prejudice no man) becomes applicable in such instances.

4. Section 48 of the Judicature Act vests a discretion in the succeeding judge in a civil trial to decide which of the following three lines of action referred to in that section should be followed: (i) if the trial has been concluded but the judgment is not delivered, deliver the judgment; (ii) if the trial is underway, proceed with the further trial by adopting the evidence already led and deliver the judgment; or (iii) commence the trial afresh. The judge must exercise his discretion judicially.

Cases referred to :

1. Mohamed Fauz v. Salha Umma 58 CLW 46 at 48
2. Podiralahamy v. Ran Banda [1993] 2 Sri LR 20 at 21

3. Perera v. Caldera [2007] 1 Sri LR 165 at 167
4. Perera v. Perera (SC/Appeal/41/2008, SC Minutes of 03.08.2018)
5. Perera v. Avishamy 12 NLR 26 at 27
6. Suresh Kumar v. Baldev AIR 1984 439
7. Madubhai Amthalal v. Amthalal Nanalal AIR 1947 156
8. Sivapathalingam v. Sivasubramaniam [1990] 1 Sri LR 378 at 388
9. Roger v. The Comptoir D' Escompte De Paris [1871] LR 3 PC 465
10. Sirinivasa Thero v. Sudassi Thero 63 NLR 31 at 34
11. Salim v. Santhiya 69 NLR 490 at 492
12. Dharmaratne v. Dassenaike [2006] 3 Sri LR 130
13. Dassenaike v. Dharmaratne [2008] 2 Sri LR 184 at 185
14. AG v. Siriwardane [2009] 2 Sri LR 337 at 353
15. MV Ocean Envoy v. AI-Linshrah Bulk Carriers Ltd [2002] 2 Sri LR 337

APPEAL from the Judgment of the Commercial High Court.

Harsha Amarasekera, P.C., with Dhammika Welagedara for the Pl

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