CAMIL
VS.
PODIMENIKE

COURT OF APPEAL
CHANDRA EKANAYAKE, J.
SRI SKANDARAJAH, J.
CA 1219/2001 [REV]
DC KULIYAPITIYA 11190/L/95

Revision - Declaration sought- Evidence led - Inspection by Court - Observation of Judge at an inspection - Does it amount to evidence? -Issues to be answered on evidence led - Defendant not permitted to lead evidence - Consent to an inspection by Court - Can the judgment entered after inspection be challenged? - No leave to appeal- Does Revision lie ?- Section 754 Civil Procedure Code.

The plaintiff - respondent instituted action seeking a declaration that the defendant - petitioner is not entitled to a road way over the plaintiff's land. After settling issues and leading evidence of several witnesses further trial and inspection by Court was agreed by the parties. After inspection by Court, date was given for submissions of the defendant. The plaintiff objected to the application of the defendant to call witnesses. This objection was upheld by Court. The defendant moved by way of Revision.

The plaintiff-respondent contended that no revision lies as the defendant­ appellant has not resorted to the procedure under Section 754, and that there was a delay and as the defendant has consented to an inspection by Court, the defendant is precluded from challenging the judgment which has been entered after the inspection.

HELD:

Per Chandra Ekanayake. J.

"It is seen that when trial was proceeding before calling the plaintiff it had been recorded that though both parties consent to a scene inspection they had not been agreeable for pronouncement of the judgment after inspection".

(1) Observations of the judge at an inspection does not amount to evidence in the case. The observations cannot be imported as evidence in the case and cannot be relied upon by the judge in a case In which judgment has to be pronounced not on the inspection but on the evidence adduced at the trial.

Issues have to be answered after analyzing the evidence adduced before Court at the trial. In the instant case parties had not agreed to abide by a judgment given on inspection.

(2) The existence of exceptional circumstances is a pre-condition for the exercise of the powers of revision. Practice had been that revising powers will be exercised if there is an alternative remedy available but not availed of only if it is established that special circumstances exist.

(3) Revisionary power-object is the due administration of justice and correction of errors sometimes committed by the Court itself in order to avoid miscarriage of justice.

(4) As a result of an erroneous order and the erroneous judgment - a miscarriage of justice has occasioned - Revision would lie

(5) Question whether delay is fatal to an application in revision depends on the facts and circumstances of the case.

Per Chandra Ekanayake, J.

"In my view in this case the grounds already enumerated as above suffice to constitute exceptional circumstances that would demand the invocation of the revisionary jurisdiction".

APPLICATION in Revision from an order of the District Court of Kuliyapitiya.

Cases referred to:-

(1) Thilagaratnam vs. Edirisinghe 1982 1 Sri LR 56
(2) Caderamanpulle vs. Ceylon Paper Sacka Ltd. 2001 3 Sri LR 112
(3) Dharmaratne and another vs. Palm Paradise Cabanas Ltd. and other- 2003 Sri LR 25
(4) Rustom vs. Hapangama & Co. 1978 80 1 Sri LR 360
(5) Manam Bee Bee vs. Seyed Mohamed 1965 68 NLR 36
(6) Soysa vs. Silva and others 2000 2 Sri LR 235
(7) Gnanapanditham & another vs. Balanayagam and another 1998 1 Sri LR 391

W. Dayaratne for defendant - petitioner.

S.A.D.S. Suraweera for plaintiff - respondent.

November 16, 2007
Chandra Ekanayake, J.

The defendant-petitioner (hereinafter sometimes referred to as the defendant) by his petition dated 21.7.2001 has sought inter alia to revise the order dated 8.6.2000 and the judgment dated 30 November 2000 of the learned District Judge of Kuliyapitiya pronounced