SAMARAWEERA v. JAYAWARDANA.

SAMARAWEERA v. JAYAWARDANA.

D. C., Matara, 2,133.

Action for divorce-Vagueness of allegation of misconduct-Judgment of District Judge founded on evidence heard by another District Judge-Irregularity -Courts Ordinance, s. 89.

An allegation of misconduct, in an action for divorce, ought to specify the date and place of the act complained of.

Though The Courts Ordinance, section 89, provides that in the case of a removal of a judge, while the suit is pending, another judge may take up the case and act on the evidence already recorded, yet such a course should not be followed except where such evidence is of a merely formal character.

In a case where the decision depends altogether upon the credit to be given to the plaintiff and his witnesses, it is not proper for a judge who has not heard the plaintiff and his witnesses to decide on their veracity and trustworthiness, when he has the means in his power of judging for himself by calling and examining them.

THIS was an action for a divorce on the ground of adultery of the first defendant (plaintiff's wife) with the second defendant. No specific act of adultery was charged, but the following averment was made in the plaint:-" Since the last few " months the fifth defendant has been living in adultery with the " second defendant, and she also threatens and abuses the plaintiff, " and has often attempted to strike and injure him." The first defendant pleaded that the plaint was insufficient and vague, in that it did not state the date when, or place where, the alleged acts of misconduct were committed. She denied the general charge of adultery alleged against her, and averred that plaintiff himself was living in adultery with a certain woman.

The case came on for hearing before Mr. G. Woodhouse, who, after recording evidence for the plaintiff, did not call upon the defendants for the defence, as he thought that the evidence adduced was too vague and indefinite to prove adultery. He dismissed the plaintiff's action.

On appeal, the Supreme. Court was of opinion that the plaintiff had made out a prima facie case, and that the District Judge ought to have called on the defendants to lead evidence. Their Lordships sent the case, back for further trial, with certain directions as to the proof of marriage, between the plaintiff and first defendant.

The further trial came on. before Mr. W. E. Thorpe, who having hoard two witnesses for the plaintiff and the first and

second defendants, delivered judgment dismissing plaintiff's action with costs.

Plaintiff appealed.

Sampayo, for appellant.

Bawa, for respondent.

Bonser, C.J.-

This is an action for a divorce, and I think there has been a miscarriage of justice. The plaintiff alleged the misconduct complained of in this way: -'' That since the last few months the " first defendant, who is the wife, has been living in adultery with " the second defendant, and who also threatens and abuses the " plaintiff and has often attempted to strike him." That is the allegation of misconduct. The defendant took the reasonable objection that this allegation was too vague. It seems to me that the District Judge ought to have given effect to that objection, and to have called upon the plaintiff to specify the particulars as to dates, &c, of the acts of misconduct on which he relied. This was not done, and at the trial certain issues were framed. The first issue is the only one which refers to the alleged adultery, 'and it is in these terms:-" Whether the first defendant is living in adultery with second defendant." That certainly is a very 'extraordinary issue, because it makes the right to a divorce depend on the question whether the wife and the co-respondent were living in adultery on the day of trial. However, the parties went to trial on that issue, and after hearing the plaintiff and his witnesses the District Judge dismissed the action. The plaintiff appealed to this Court; and this Court

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