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COREA v. ASSISTANT GOVERNMENT AGENT
NLR22V172
1920. Present : Bertram C.J.
and De Sampayo J.
COREA v. ASSISTANT GOVERNMENT AGENT, PUTTALAM.
56-D. C. Puttalam, 14.
Summons-Duty of proctors to prepare summons and tender same to Court-Civil
Procedure Code, ss. 55 and 121- Waste Lands Ordinance, No. 1 of 1897, s. 15.
Both under the Civil Procedure Code and in proceedings under the Waste Lands
Ordinance summons to witnesses must be prepared by the proctors and submitted to
Court for issue ; the Secretary is entitled to withhold any action for the
purpose until forms have been submitted to him.
" The rule is not a rigid one. There obviously must be a certain elasticity,
otherwise there must be some hardship to the poor litigants."
THE
facts appear from the judgment.
H. J. C. Pereira (with him Croos-Dabrera),
for the appellant.
Akbar, Acting S. G. (with him V. M. Fernando, C.C.), for the respondent.
September 7, 1920. BERTRAM C.J.-
This case raises a question of procedure under section 15 of the Waste Lands
Ordinance, No. 1 of 1897. The appellant in this case was a claimant under that
Ordinance, and, after the case had been fixed for trial, he filed a motion in
the District Court applying for the issue of summonses on certain witnesses. On
a subsequent date -several days before the trial date-he inquired from the
Secretary
whether the summonses had been issued. The Secretary intimated to him that the
practice was, when summonses were applied for by a proctor, for the proctor so
applying to furnish the forms of summonses for signature. This was in effect an
intimation from the Secretary that before he could obtain an order for the issue
of summonses he required the claimant, who in this case was represented by
proctors, to furnish forms for the purpose. The claimant took no further steps
on this intimation, but when the case came on for trial he applied for an
adjournment, on the ground that the witnesses were not present, giving as a
ground for their absence, that they were not duly summoned in accordance with
the application. The District Judge refused an adjournment except on terms,
these terms being that the claimant, whose action had led to the other side
being in attendance, should pay the costs of the other side of the day. The
claimant refused to accept these terms or to take part in the subsequent
proceedings, and the District Judge, having heard the evidence of the Assistant
Government Agent, dismissed the action, with costs.
It was contended before us on the appeal, that under section 15 the intention of
the Legislature was, not only to provide a summary trial of the issues arising
in cases under the Ordinance, but to relieve the parties of obligations they
have under the ordinary civil procedure of taking steps to procure the
attendance of their witnesses. The intention was, so it was argued, that when
once the claimant or the Government Agent had intimated to the Court that he
required the attendance of certain witnesses, the Court should take all
necessary steps to procure their attendance, and itself issue the summonses
without requiring any assistance for the purpose from the applicants. It was
admitted that this was a departure from the existing practice under the Civil
Procedure Code, but it was maintained that this was the specific intention of
the section.
With regard to that particular contention, it appears that it has already been
before this Court in a previous case-Abeyeratne v. The Assistant Government
Agent, Chilaw.1[(1919) 6 C. W. R. 82.] In the argument before the District Court in that case this
point was specifically raised, and raised by the same proctors who appear in
this case, in the following words : " The Waste Lands Ordinance enacts a cheap
and inexpensive method of coming to trial. From reference up to judgment of the
District Court all the burden of regular procedure is taken away both from the
claimant and from the Crown's representative.
