Carolis Appuhamy V. Peter Singho Et Al.,

Present: Bertram C. J. and Schneider J.

CAROLIS APPUHAMY v. PETER SINGHO et al.

107-D. C. (Inty. ), Colombo, 51, 798.

Civil Procedure Code, s. 145-Postponement of trial for the production of evidence-Party in default-Dismissal of action-Powers of Court.

Where a party to an action has been granted time to produce certain evidence and fails to do so at the hearing, the court has no power to dismiss the action. It must proceed to hear such other evidence as may be tendered on behalf of the party in default and decide the action forthwith.

APPEAL from an order of the District Judge of Colombo, dismissing the plaintiff's action. The action had commenced in 1918, but no steps had been taken to prepare the case for trial, when under a peremptory order of the learned Judge, it was fixed for hearing on May 28. The case had been adjourned from time to time to enable the plaintiff to obtain a survey of the subject-matter of the action and a report by an impartial expert witness. When the case came on for hearing, the learned District Judge finding that the necessary evidence was not available refused a motion for another adjournment and dismissed the action.

Samarawickreme (with him Arulanandan), for the plaintiff, appellants.

R. L. Pereira (with him Navaratnam), for the defendant, respondents.

October 3, 1954. Bertram C. J. -

This is an appeal against an order of the learned Judge dismissing the action on the ground that, after repeated delays, and after a prolonged course of a most dilatory procedure, the plaintiff was, in the opinion of learned Judge, not in, a position effectively to prove his case, and that it would be a waste of time to allow him to attempt to do so. I have the greatest sympathy with the impatience which the learned Judge displayed. I think he was most justified in his impatience. It is very much to be regretted that at some earlier period in these proceedings a peremptory order was not made.

The action was commenced in 1918, and nothing effective had been done to prepare the case for trial when under a peremptory order of the learned Judge, it was fixed for hearing on May 28 of this year. It had been clearly realized throughout the case that it was most desirable that there should be a survey of the subject-matter of the action and a report by an impartial expert witness. The case had been adjourned time after time because this evidence was not available, and the plaintiff had not taken the necessary steps to make it available. When the case came on for hearing, there was yet another motion for adjournment, which was refused. The case was thus exactly in the position provided for by section 145 of the Civil Procedure Code, which says that if any party to an action to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary for the further progress of the action for which time has been allowed, the Court may, notwithstanding such default, proceed to decide the action forthwith.

It seems to me that what that section contemplated was that when the Court found itself in such a position it should hear what other evidence available that might be tendered on behalf of the party in default, and should then decide the action. It does not say that in such a case the Court may dismiss the action. If such a special proceeding has been contemplated by the framers of the Code, I think that they would have inserted an express provision on this very point in the Code.

This question has in another form come up before this Court in more than one case, and in particular in the case of Mamnoor v. Mohamed [1 (1923) 23 N. L. R. 493.]. which is a decision of three Judges of this Court. The Court there carefully considered a previous decision-Sumanasara Unnanse v. Seneviratne [2 (1912) 15 N. L. R. 375.],  and the principle enunciated in that case

was that i

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