RlZAN AND OTHERS v. RATNASIRI

RlZAN AND OTHERS
v.
RATNASIRI

COURT OF APPEAL
BASNAYAKE. J.
CHITRASIRI. J.
CALA 514/06(LG)
DC MATARA 10305/L
JUNE 2,2009

Civil Procedure Code-Section 121 - Section 175 (1) Section 175 (2) - Document not listed - Discretion given to Court under Section 175 (1) and 175 (2) - Is it wider under Section 175(2) - Guidelines? - All requirements need not exist simultaneously?

The learned District Judge allowed the defendant-respondent to mark 2 unlisted documents in evidence, under Section 175(2). The plaintiff-petitioner sought leave and leave was granted from the said order.

Held

(1) It is pertinent to note that Section 175(1) and Section 175(2) which refer to listing of witnesses/documents envisage two different criteria.

(2) Under Section 175 (1) a witness who is not listed could be allowed to be called if and when special circumstances appear to Court in order to meet the interest of justice.

Under Section 175 (2) - a document is allowed to be marked with leave of Court considering the circumstances of each case;

Per Chitrasiri. J.

"A wider discretion is given to Courts when a document that has not been listed is to be marked in evidence than where an unlisted witness is to be called to give evidence".

(3) The decision in Kandiah's case lays down the guidelines to be followed, one such reason may even be sufficient - to allow an unlisted document to be marked in evidence depending on the circumstances of a given situation -all four requirements viz

(i) where it is in the interest of justice to do so

(ii) where it is necessary for the ascertainment of the truth

(iii) there is no doubt about the authenticity of the document

(iv) where sufficient reasons are adduced for the failure to list a  document-need not co-exist simultaneously in order to allow an unlisted document to be marked in evidence.

Cases refereed to :

(1)    Kandiah v. Wiswanathan and another 1991 - 1 Sri LR 269

(2)    Read v. Samusudeen 1 NLR 292

(3)    Fernando v. Fernando- 7 NLR 147

(4)    Killonchiya v. Clark - 80, 2 Leader 153

(5)   Jones v. Channel 8 Ch D. 506

(6)    Andiris Hamy v. Dinneris Appu - 2 Times 161

(7)    Girantha v. Maria - 50 NLR 519

APPLICATION for leave to appeal with leave being granted from an order of the District Court of Matara.

N.R.M. Daluwatte P.C. with H.L. Kamwita for substituted plaintiff-appellants-petitioners

Rohan Sahabandu for defendant-respondent.

Cur.adv.vult

CHITRASIRI,J

    Substituted-Plaintiffs-appellant-petitioners (hereinafter referred to as the Petitioners) filed this leave to appeal application to set aside the order of the learned Additional District Judge of Matara dated 12th December 2006. Con- sequently having granted leave, this Court fixed the matter for argument and it was concluded on 2nd June 2009.

    This is a rei-vindicatio action filed by Mohamed Mustapha Sitthi Fathima against the Defendant-Respondent (herein-

after referred to as the Respondent). The Petitioners were substituted and were named as the Substituted-Plaintiffs to the original action since the said plaintiff Mohamed Mustapha Sitthi Fathima died while the action was pending. When the defendant was giving evidence in the District Court, an application was made to mark two documents in evidence claimed to be the Birth Certificate of the Defendant and the Marriage Certificate of the defendant's parents. The two documents were given the making "D4" and "D5". The Plaintiff objected , to those documents being marked on the ground that those  were not listed in terms of Section 121 of the Civil Procedure  Code. Having allowed the parties to file submissions on the matter Court made order allowing the aforesaid two documents to be marked in evidence. It is against this order that this application had been filed.

    Admittedly, the two documents in question had not been listed in terms of Section 121 of the Civil Procedure Code. The learned Additional Distri

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