CIVIL PROCEDURE

1. THE JUDICIAL INDEPENDENCE Welcome to the symposium

On civil Law
2. PRE TRIAL STEPS AND CONDUCT OF CIVIL TRIALS. PRE
TRIAL STEPS AND CONDUCT OF CIVIL TRIALS. CONDUCT
OF CIVIL TRIALS AND PRE TRIAL STEPS IN CIVIL DISPUTES
3. Prevent unnecessary delay Encourage settlement Decreases
cost of litigation Facilitate the effective use of judicial resources.
4. Civil procedure is aimed at setting the Civil Law in motion by
the State/Private or Unincorporated Bodies for redress against
denial of a right, refusal to fulfil an obligation, neglect to perform a
duty and infliction of an affirmative injury.
5. SUBSTANTIVE LAW AND PROCEDURAL LAW Rights and
duties are created by substantive law e.g Law of Contract, Torts
ect. and Procedural Law is the vehicle that conveys a suitor to his
destination to reap the benefit of the substantial Law

6. Regular procedure contemplates on the defendants right to

answer

the

allegations

made

in

the

plaint

before

the

pronouncement of the judgement. Under summary procedure the

applicant supports the contents of his petition by the affidavit and
other evidence (by way of exhibits) and the court after
consideration of the same, if a prima-facie case is established
immediately passes an order on the defendant on condition that if
no opposition is shown that the order will be made absolute.
7. The court is also empowered under summary procedure to
enter interlocutory order appointing a day for the determination of
the matter of the petition and intimating to the respondents that he
will be heard in opposition. This type of orders are made under
377 (b) of the code.
8. The Court within the local limits of whose A) jurisdiction' a party
defendant resides,

B) Where the land in respect of which the

action is bought lies or is situate in whole or in part,

C) Where

the cause of action arises, or D) Where the contract sought to be

enforced was made.

9. 39. Whenever any defendant or accused party shall have

pleaded in any action, proceeding or matter brought in any Court
of First Instance neither party shall afterwards be entitled to object
to the jurisdiction of such court, but such court shall be taken and
held to have jurisdiction over such action, proceeding or matter:

Provided that where it shall appear in the course of the

proceedings that the action, proceeding or matter was brought in
a court having no jurisdiction intentionally and with previous
knowledge of the want of jurisdiction of such court, the Judge
shall be entitled at his discretion to refuse to proceed further with
the same, and to declare the proceedings null and void.
10. CAN JURISTIC PERSONS SAID TO RESIDE AT THE
REGISTERED OFFICE

In Blue Diamond Diaond Ltd Vs

Amsterdam Vs Rotterdam Bank N.L 1993 2 SLR 249 it was held

that question as to whether a company could be sued on the
basis that the Company being 'resident' at a particular place and it
was held that a juristic person cannot be sued on the basis of it
being resident at a particular place. Supreme court

CAN

JURISTIC PERSONS SAID TO RESIDE AT THE REGISTERED

OFFICE

In Blue Diamond Diaond Ltd Vs Amsterdam Vs

Rotterdam Bank N.L 1993 2 SLR 249 it was held that question as
to whether a company could be sued on the basis that the
Company being 'resident' at a particular place and it was held that
a juristic person cannot be sued on the basis of it being resident
at a particular place. Supreme court
11. Martin Silva v. Central Engineering Consultancy 2003 SLR 2
228 (Court of Appeal) it was held that despite the failure to effect

the legislative clarification as spelt out in the Civil Courts

Commission Report, that a liberal interpretation is permissible to
include a corporate body as residing at its registered office, where
there is no other place of business."
12. Somasiri Vs Ceylon Petroleum Corporation 1991 SLR 39 if
the residence of the defendant is not distinctly averred it is not a
ground to reject a plaint if the principal place of business is
situated within the jurisdiction of court.
13. Davith Appuhamy v Perera 11 NLR150 A mortgage bond
action based on immovable property, should be filed within the
territorial limits of the court where the mortgaged property is
situated
14. APPUHAMY VS. GUNASEKARA 2 NLR 155 AN ACTION BY
A LESSEE OMPELLING HIS LESSOR TO ACCEPT RENTAL
CANNOT BE CONSIDERED AS AN ACTION RELATING TO
LAND SINCE THE CLAIM IS BASED ON THE LEASE
AGREEMENT.
15. Pelis Vs Silva 60 NLR 289 an action for specific performance
of an agreement to sell land was held not to be an action in
respect of land within the meaning of section 9 (b) of the Civil
Procedure Code. A Court, therefore, has no jurisdiction to try the
case merely on the ground that the land in respects of which the

contract was made is situated within the local limits of its

jurisdiction.
16. Ranghamy vs Kirihamy 7 NLR 357. Plaintiff in that case sued
the defendant in the District Court of Kandy. Here, the defendants
were resident outside Kandy and the land itself was situated
outside. The District Court of Kandy was yet held to have had
jurisdiction by reason of the fact that the lease agreement was
entered into in Kandy
17. Nallathambi Vs Kurukkal 57 NLR 166, an action for the
redemption of an OTTY mortgage (where the mortgager reaps
only the benefits or fruits of the property) and for the release of
the mortgaged land from the mortgage was considered a dispute
affecting an interest in land and can, therefore, be brought in the
court within the local limits of whose jurisdiction the land in
question is situate.
18. It requires that the plaint should contain a plain and concise
statement of the circumstances constituting each cause of action
and where and when it arose and such statement shall be set
forth in duly numbered paragraphs; and where two or more
causes of action are set out the statement of the circumstances
constituting each cause of action must be separate and
numbered.

19. If the plaint had been accepted and summons issued on the
defendant, it is not a matter for the court to act under 46 (2) but
for the defendant to raise the point in his answer. This principle
was laid down for the case of Mohideen Vs Gnanaprakasam 14
NLR 33.
20. When a plaint or an answer is not rejected by a District Judge
under section 46 or section 77 of the Civil Procedure Code for
deficiency of stamps, the presumption is that the Judge has
adjudicated in favour of the party who had tendered the pleading
on the question as to the sufficiency of the stamp thereon. See
Jayawickrama Vs Amarasooriya 17 NLR 174.
21. It is well established principle of law that the plaint cannot be
dismissed on the ground of insufficiency of stamps alone. (37
NLR 436).
22. Sita Rajasingham Vs Maureen Seneviratne and another
(Supreme Court) S.C. 5/93 C.A. 194/91 1995 2 SLR 69. in the
absence of any statutory provision in relation to the petitions filed
under section 86 of the CPC, requiring that stamps should be
supplied at the time of its presentation; or that such a petition filed
without stamps is valueless is no ground to reject an application.
23. The proper procedure to be followed when pleadings are not
stamped or insufficiently stamped is to call for the stamps to be

provided with and upon failure to reject the plaint or other

pleadings. (Vide Yusuf Mohamed Vs Indian Overseas Bank 1999
3 SLR 278 and 1999 1 SLR 332.
24. P Beatrice Perera Vs Commissioner of National Housing were
reported in 77 NLR at page 361 Judgement delivered without
service of summons is ab initio void and can be attacked in the
original court itself.
25. JOYCE PERERA V. LAL PERERA 2003 3 SLR 8 Civil
Procedure Code, sections 55 (1), 84, 85 (1), 377, and 754 (1) Summons not served - Order nisi served in respect of alimony
pendente lite - Objections filed - Answer not filed - Application for
alimony pendente lite withdrawn - Case fixed for ex parte trial Legality - Is this order a judgment?
26. In Meeralewai vs. Seenithamby 48 NLR 140 Summons was
served on the Defendant in substituted form at his residence
which was the last known place of abode according to the
Plaintiff. The Defendant was in fact at the Mahara Prisons as last
known to the Plaintiff. The service was held to be invalid.
27. Dharmasena And Another Vs The People's Bank SUPREME
COURT 2003 SLR 1 122 "The Code must be interpreted as far as
possible, in consonance with the principles of natural justice, and
the court can only be satisfied that summons had been "duly

served" where the defendant has been given a fair opportunity

of presenting his case in his answer. If not, the court has the
power to give further time for answer even if the defendant does
not ask." Held further that the order of the learned district judge
refusing to fixed the matter for exparte trial is quite correct.
28. Jayasiri Edirisinghe Vs City Properties (Pvt) Ltd..,(CHC) peal
No. 34/08, S.C.H.C.L.A. 18/08, H.C. Civil) 47/2006(01). The
discretionary power to amend pleadings must be exercised
subject to the limitations set out in Section 46(2). No amendment
is to be made which has the effect of converting an action of one
character into an action of another or inconsistent character. The
appellate court would be hesitant to interfere with the exercise of
such a discretion by the trial Judge. This discretion could be
viewed from the perspective of the flexibility and the choice
granted to the trial judge based upon a consideration of all factors
involved. This judicial discretion of the Court must be exercised so
as to do justice in a case that is being tried with the
ascertainment, declaration and enforcement of the rights and
liabilities of the parties as they exist or are deemed to exist at the
time the proceedings were instituted.

29. Rathwatte v. Owen 2 NLR 141 the court stated that the
principle by which a Court ought to be guided in deciding to alter a
pleading is that the alteration will make the real issues clear.
30. Casim Lebbe v. Natchiya 21 NLR 205 it was held that a
bonafide Amendment which does not cause prejudice to the other
party should be allowed.
31. Vipassi Nayake Thero vs. Jinarathane Thero 66 CLW 43 it
was held that there should not be an objection to a correction
sought to be made facilitating the court to identify the real issue
between the parties. This principle should however operate
subject to the condition that no injustice is done to the opposite
party. Vipassi Nayake Thero vs. Jinarathane Thero 66 CLW 43 it
was held that there should not be an objection to a correction
sought to be made facilitating the court to identify the real issue
between the parties. This principle should however operate
subject to the condition that no injustice is done to the opposite
party.
32. Lebbe vs. Sandanam 64 NLR 461 (a) If the amendment sets
up a new case. (b) If the amendment converts an action of one
character into an action of another character. (c) If the
amendment has the effect of defeating an objection based on
prescription made by the other party. (d) If the amendment adds a

new cause of action. (e) An amendment which prejudices the

rights of the opposite party. (f) If the amendment changes the
substance and the essence of the original action.
33. Uberis v.jayawardene 62 NLR 217 An action in respect of one
land cannot be converted into an action in respect of another land
by an amendment of pleadings
34. Abeywardene v. Euginahamy 1984 2 SLLR 231 Belatedness
of the application for amendment is not a ground for refusing the
application AS FAR AS the Amendment of the plaint does not
seeking to widen the scope or alter the character of the action and
No new cause of action is averred. Merely seeking to elucidate
the title in the original plaint BY THE AMENDMENT SHOULD BE
PERMITTED.
35. De Alwis v. De Alwis - 76 NLR 444 it was laid down as a rule
that a Court will not allow to set up a claim by an amendment of
the plaint if a fresh claim would be barred by prescription at the
date of the application to amend the plaint. However, where there
are special and peculiar circumstances which require the
amendment to be ordered in the interests of justice the provisions
of section 93 of the Civil Procedure Code are wide enough to
allow such an amendment.

36. Gunasekera v. Abdul Latiff 1995 1 SLR 225 that an application

for an Amendment should not be allowed unless the delay is
explained. In A vudiappan v. Indian Overseas Bank Ltd 1995 2
SLR 131 it was held that "laches" mean delay that cannot be
reasonably explained.
37. In the recent case of Kuruppuarachchi v. Andrea 1996 2 SLR
11 it was held that consequent to the 1991 amendment a Court is
precluded from allowing an Amendment once a matter is fixed for
trial . except for the reasons set out in the subsection to Section
93.
38. Ceylon Insurance Co. Ltd. V. Nanayakkara 1999 3 SLR 50 an
amendment should not be allowed unless the Court is satisfied
that; a) Grave and irremediable injustice will be caused to the
party applying, and b) That such party is not guilty of Laches. It
was further held in this case that the Court must be satisfied
about both reasons above and then record the reasons for its
order.
39. Hatton National Bank v. Silva 1999 3 SLR 113 the plaintiff had
instituted action against the Defendants, and later sought to add a
cause of action based on damages. The application was allowed
by the trial Judge. However, it was held by the Court of Appeal

that the Amendment should not have been allowed since it

introduces a new cause of action.
40.

In Gunasekera v. Punchimenike 2002 2 SLR 43 IT WAS

ALID DOWN THAT no amendment should be allowed once an exparte trial has been ordered.
41. Seylan Bank v. Thangaveil 2004 2 SLR 101 Court of Appeal
had to consider the question whether the Caption of a plaint could
be amended to correct the name of the party. In this case the
correct surname of the defendant was put in the caption but his
other names were incorrect. It was held by Wimalachandra J that
such an error would not be one which is contemplated under
Section 93 of the Code and that such error amounts to a
correction of a clerical error.
42. The right to postpone a trial is indispensable in any system of
justice, for without that right the system can collapse altogether
because it can result in a miscarriage of justice, if a postponement
on a genuine ground is unreasonably turned down. The Code
provides that when any case is called for hearing, the court may,
for sufficient cause, postpone the hearing to another day, upon
such terms as to costs or otherwise as the court shall think fit.
43. *After the case is fixed for trial there is nothing in the Civil
Procedure Code to the abate an action if a period of twelve

months elapses after the last entry of an order or proceeding in

the record without the plaintiff taking a necessary step to
prosecute his cause.
44. It is the duty of court to fix a day for the hearing of a case, and
not to wait for an application of a party. The case of Fernando vs.
Curera, 2 N.L.R. 29 amply recognizes the rule as to who should
take the initiative to fix a case for hearing.
45. *an order of abatement of an action can be made under
section 402 of the Civil Procedure Code only if the plaintiff has
failed to take a step rendered necessary by the law. It was further
emphasized that when an order " laying by " a case has been
made by a Court, the duty of restoring the case to the trial roll
rests on the Court and not on the parties. In Suppramaniam v.
Symons [1 (1915) 18 N. L. R. 229] *After the case is fixed for trial
there is nothing in the Civil Procedure Code to abate an action if a
period of twelve months elapses after the last entry of an order or
proceeding in the record without the plaintiff taking a necessary
step to prosecute his cause. In this context plaintiff includes a
defendant who has preferred a claim in reconvention.
46. *when an order *" laying by " a case has been made by a
Court, the duty of restoring the case to the trial roll rests on the
Court and not on the parties.

47. *Abating a suit could not be made without notice to parties. If

an order under 402 is made without notice, it was said that it
would destroy the very foundation of the right to have notice.
Therefore, Judges who desire to act ex mero motu under section
402 should not ignore the view expressed in Suppramaniam v.
Symons *Abating a suit could not be made without notice to
parties. If an order under 402 is made without notice, it was said
that it would destroy the very foundation of the right to have
notice. Therefore, Judges who desire to act ex mero motu under
section

402

should

not

ignore

the

view

expressed

in

Suppramaniam v. Symons
48. *IF THE LAST ORDER MADE BY THE DISTRICT JUDGE
BEFORE ENTERING THE ORDER OF ABATEMENT WAS "NO
ORDER" THERE WAS NO FAILURE ON THE PART OF THE
PLAINTIFF TO TAKE ANY NECESSARY STEP TO PROSECUTE
THE ACTION. *See Associated Newspapers of Ceylon, Ltd. v.
Kadirgamar and Lorensu Apphamy v. Paaris. * [1 (1934) 36
N.L.R. 108.] *[2 (1908) 11N.L.R. 202.]
49. *Application for postponements due to absence of witnesses
should be considered in the light of the culpability of a party who
relies on the evidence of absent witnesses. *The ground, relied
upon was the absence of a material witness who was duly

summoned. The court held that the postponement applied for

should have been allowed. Sammy Singho vs. Henry Silva. 50
N.L.R. 192
50. *In Fernando v. Andiris there was no material to show that the
evidence of the plaintiff was necessary to continue with the
plaintiffs action. However the plaintiff moved for an adjournment
and the same was refused. It was pointed out that the plaintiff's
Proctor should have called such evidence as was available on
behalf of the plaintiff and should not have declined to call any
evidence after the refusal of the application for postponement and
there being no evidence, the order of the District Judge
dismissing the plaintiff's claim was justified. (1905)2 A.C.R.141 * *
(1905) 2 A. C. R. 141.]
51. *SUBSEQUENT TO THE CLOSURE OF THE PLAINTIFFS
CASE THE DEFENDANT LED THE EVIDENCE OF ONE
WITNESS AND THEREAFTER AT THE RESUMPTION OF THE
TRIAL DEFAULTED IN HIS APPEARANCE. *CAN THE TRIAL BE
REGARDED AS INTERPATES? IN SUCH A SITUATION, IT WAS
LAID DOWN THAT THE ONLY COURSE WHICH THE COURT
COULD HAVE ADOPTED WAS TO ENTER DECREE NISI IN
FAVOUR OF THE PLAINTIFF IN TERMS OF SECTION 85 OF
THE CPC AND THAT IN SUCH A CASE THE COURT CANNOT

GIVE JUDGEMENT TO THE PLAINTIFF ON THE BASIS THAT

THE DEFENDANT DID NOT INTEND TO LEAD ANY FURTHER
EVIDENCE. JOHANIS APPUHAMY VS CARLINCHO *

*67

N.L.R. 144
52. *UPON REFUSAL OF POSTPONEMENT, Counsel has no
right to withdraw from the case without the consent of the Judge,
and that it is his duty as an advocate to proceed as far as he can
with the examination of the witnesses called by the opponent, and
to adduce all the evidence he has on his own side, and if it then
transpires that the evidence of a particular witness whose
absence was the cause of the application being made was
material, the trial Judge may at that stage allow a postponement.
53. *Section 109 (1) of the CPC - for failure to comply with any
order to answer interrogatories, or for discovery, production, or
inspection, which has been duly served. In case of the defendant,
such failure may result in the defence, if any, be struck out, and
he be placed in the same position as if he had not appeared and
answered. Failure to comply with such orders may even result in
the possibility of the defaulter being found guilty of the offence of
contempt of court. *However, it is trite Law that the dismissal of an
action under section 109 of the Civil Procedure Code can only be

imposed on a party who is guilty of wilful or contumacious refusal

to carry out an order to answer interrogatories.
54. 3rd plaintiff, who was a resident in Beirut, failed to comply with
an order to answer interrogatories as the time given was
insufficient. Hence, the court held that the 3rd plaintiff could not
be said to have been guilty of contumacious or wilful refusal to
carry out the order. Therefore, the order dismissing the action in
terms of section 109 of the Civil Procedure Code was set aside.
55. *FOR VALID REASONS RECORDED COURT CAN DEVIATE
FROM THE RULE AS TO DAY TO HEARING AND REFRAIN
FROM FIXING FURTHER HEARING WITHIN 6 WEEKS FROM
THE LAST DAY. *AS FAR AS PRACTIBLE THE CONCEPT
REGARDING

DAY TO

DAY HEARING,

WOULD

BRING

IMEMNSE BENEFIT TO THE PARTIES

56. WHAT IS DISCRETION? IS IT WHAT THE JUDGE WISHES
TO GIVE EFFECT TO?
57. The person in whom is vested a discretion must exercise his
discretion upon reasonable grounds. A discretion does not
empower a man to do what he likes merely because he is minded
to do so-he must in the exercise of his discretion do not what he
likes but what he ought. In other words, he must, by use of his
reason, ascertain and follow the cause which reasons direct. He

must act reasonably. Roberts vs. Hopwood and others1925 AC

page 578 at page 613 where Lord Wrenbury (House of Lords)
58. *1. IT HAS TO BE OF CONSENT OF PARTIES IF THE CASE
IS TO BE DECIDED ON THE FAILURE TO PAY COSTS. *Etena
vs. Appu 4N.L.R.185 *Weerasingha 47N.L.R. 281 *Simon Sinno
vs. William Appuhamy, * when pre-payment of costs is ordered, a
particular time is also fixed in the order before which the payment
of cost must be made. In that event, the payment must be in
compliance with the time mentioned. 6 Cey. L. Rec. 99
59. 1. Dismissal of plaintiffs case, NOT JUSTIFIED because cost
of an adjournment, granted at the plaintiffs instance, had not been
paid as ordered. 2. It is the duty of the fiscal to serve summons for
attendance of witnesses. His failure is not a default of the plaintiff.
60. *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." COURT HAS NO POWER TO
DISMISS AN ACTION IF A PARTICULAR WITNESS OR
DOCUMENT NOT PRODUCED CONSEQUENT UPON THE
ADJOURNMENT FOR THAT PURPOSE

61. Under sections 143 of the Code adjournment is entirely

discretionary. Under section 145 of the Code, if a party to whom
time has been granted fails to produce his evidence or to bring his
witnesses or to do any other act necessary for the further
progress of the case, for which time has been allowed, the Court
has power notwithstanding such default, to decide the action
forthwith. When the defendant repeatedly seeks adjournments on
one ground or the other and fails to bring evidence, the Court
should proceed to decide the suit by rejecting the adjournment
application. It is appropriate for the court to dispose of the suit on
merits on the available evidence". ABREW VS. HOUSING
DEVELOPMENT AND FINANCE CORPORATION
62. Ramanaden Chetty vs. Fernando, an application for a
postponement by the defendants was granted on their consenting
to pay Rs.75 to the plaintiff as his costs of the day along with a
sum of Rs.6.50 before the next date of trial. In default of such
payment the defendants agreed to judgment being entered as
prayed for. On the trial date the defendants tendered the money
but the plaintiff refused to accept it and claimed judgment. The
District Court held in favour of the defendant and postponed the
case for trial sine die. The Supreme Court upheld the plaintiffs 24
N.L.R. 411

63. Punchi Nona vs. Peiris, a postponement of the trial was

granted to the defendant on his consenting to pay the plaintiff a
fixed sum of money by way of costs before the next date of trial.
The defendant also agreed to judgment being entered for the
plaintiffs if he made default in the payment of costs. The
defendant defaulted in the payment of the costs but pleaded that
this was due to his being hindered by the floods. The appellate
Court held that the Court had no power to grant relief to the
defendants against the breach of the undertaking to pay costs in
terms of the agreement. 26 N.L.R.411
64. *In the latter case, the plaintiff undertook to pay the defendant
a stipulated amount as costs before 10 a.m. of a specified date.
He agreed to his action being dismissed in the event of default.
The plaintiff who failed to make the payment of costs as agreed
attempted to prove impossibility of performance without success.
The court in appeal held that his action was liable to be dismissed
in accordance with his agreement. * *In the latter case, the
plaintiff undertook to pay the defendant a stipulated amount as
costs before 10 a.m. of a specified date. He agreed to his action
being dismissed in the event of default. The plaintiff who failed to
make the payment of costs as agreed attempted to prove
impossibility of performance without success. The court in appeal

held that his action was liable to be dismissed in accordance with

his agreement. *
65. The rule, however, is applicable even where the terminal date
fixed for the payment of costs falls on a Sunday or on a holiday.
Simon Singho vs. William Appuhamy, 26 N.L.R.408
66. *Defendant

was

granted

postponement

upon

his

undertaking to pay Rs.75 a particular day that was a Poya day. If

payment was not made according to the undertaking the
defendant agreed to judgment being entered for the plaintiff.
*Costs tendered on the next day as he was unable to pay the
money on the previous day because, it was declared a holiday. It
was held in appeal that the undertaking to pay costs simpliciter
did not imply payment into Court. Accordingly, the failure to make
payment on 10th September, 1969 brought into operation the
consequences provided for in the agreement. *Defendant was
granted a postponement upon his undertaking to pay Rs.75 a
particular day that was a Poya day. If payment was not made
according to the undertaking the defendant agreed to judgment
being entered for the plaintiff. *Costs tendered on the next day as
he was unable to pay the money on the previous day because, it
was declared a holiday. It was held in appeal that the undertaking
to pay costs simpliciter did not imply payment into Court.

Accordingly, the failure to make payment on 10th September,

1969 brought into operation the consequences provided for in the
agreement.
67. Francis Wanigasekera vs. Pathirana, 1997 (3) Sri L.R. 231
The 2nd defendant-appellant was present and represented by an
Attorney-at Law when the order for prepayment was made. The
proceedings have a statement that the defendant-appellant
agreed to the prepayment order. What more than this is
necessary to indicate the consent to prepay cost. The defendant
had not signed the record, if that is what is sought to be argued as
being what is required to signify consent, I cannot subscribe to
this view where the party agreeing to the prepayment is present
and is represented by an Attorney-at-Law and signified in the
proceedings as having agreed to comply with the prepayment
order 68. *Section 24 of the Civil Procedure Code is demonstrative that
an appearance of a party may be by an attorney-at-law. When the
client requested attorney-at-law to make an application it is an
application the attorney-at-law makes on behalf of the party he
represents for the administration of justice. *Isek Fernando vs Rita
Fernando - 1999 3 SLR at page 29 *Section 24 of the Civil
Procedure Code is demonstrative that an appearance of a party

may be by an attorney-at-law. When the client requested attorneyat-law to make an application it is an application the attorney-atlaw makes on behalf of the party he represents for the
administration of justice. *Isek Fernando vs Rita Fernando - 1999
3 SLR at page 29
69. the main question that arose for determination in that case
was whether a settlement entered in the presence of an attorneyat-law of a party who was absent in court can assail the
settlement on the ground that he was not present in court at the
time the attorney-at-law adjusted the matter. HELD that the
attorney-at-law for the petitioners had acted within the authority
granted to him by the proxy and therefore the settlement cannot
be assailed merely on the ground of the party not being present
in court at the time the compromise was recorded.
70. * 49. ( 1) The pl ai nt i f f shal l endorse on t he pl ai nt , or
annex t heret o, a memorandum of t he document s, i f any, whi
ch he has produced al ong wi t h i t * 50. If a pl ai nt i f f sues upon
a document i n hi s possessi on or power, he shal l produce i t i n
court when t he pl ai nt i s present ed. * 51. If he rel i es on any ot
her document s ( whet her i n hi s possessi on or power or not )
as evi dence i n support of hi s cl ai m, he shal l ent er such
document s i n a l i st t o be added or annexed t o t he pl ai nt . *

53. In t he case of any act i on upon a bi l l of exchange, promi

ssory not e, cheque, or any negot i abl e i nst rument , i f t he i nst
rument i s l ost , and i f an i ndemni t y be gi ven by t he pl ai nt i f
f , agai nst t he cl ai ms of any ot her person upon such i nst
rument , t he court may make ENTER decree. * 54. A document
whi ch ought t o be produced i n court by t he pl ai nt i f f
71. *121 (2) Every party to an action shall, not less than fifteen
days before the date fixed or the trial of an action, tile or cause to
be filed in court after notice to the opposite party- (a) a list of
witnesses to be called by such party at the trial, and (b) a list of
the documents relied upon by such party and to be produced at
the trial *121 (2) Every party to an action shall, not less than
fifteen days before the date fixed or the trial of an action, tile or
cause to be filed in court after notice to the opposite party- (a) a
list of witnesses to be called by such party at the trial, and (b) a
list of the documents relied upon by such party and to be
produced at the trial
72. 175 (1) No witness shall be called on behalf of any party
unless such witness shall have been included in the list of
witnesses previously filed in court by such party as provided by
section 121: Provided, however, that the court may in its
discretion, if special circumstances appear to it to render such a

course advisable in the interests of justice, permit a witness to be

examined, although such witness may not have been included in
such list aforesaid, Provided also that any party to an action may
be called as a witness without his name having been included in
any such list. (2) A document which is required to be included in
the list of documents filed in court by a party as provided by
section 121 and which is not so included shall not, without the
leave of the court, be received in evidence at the trial of the action
: Provided that nothing in this subsection shall apply to documents
produced for cross examination of the witnesses of the opposite
73. *"before the day fixed for hearing MEANS the first date on
which the trial is fixed for hearing. The question whether the trial
Judge can allow the entire list of documents in the event of
overruling an objection raised by a party in respect of a single
document contained in such list, should be answered in the
negative. * Judge's finding that the plaintiff-petitioners objection
was belated is an error as the procedure adopted in the original
courts objecting to a document/witness, is namely, to object when
the document in question is sought to be marked or when the
witness in question is called to the witness box to give evidence.
74. "The learned District Judge refused the application because
the plaintiffs would be placed at a disadvantage if Inspector

Sivasambos evidence was allowed to be called. This is no doubt

correct in a sense, but the paramount consideration is the
ascertainment of the truth and not the readily understandable
desire of a litigant to be placed at a tactical advantage by reason
of some technicality. "The learned District Judge refused the
application because the plaintiffs would be placed at a
disadvantage if Inspector Sivasambos evidence was allowed to
be called. This is no doubt correct in a sense, but the paramount
consideration is the ascertainment of the truth and not the readily
understandable desire of a litigant to be placed at a tactical
advantage by reason of some technicality.
75. Tikiri Banda vs. Loku Menika, (decided in 1968) the name of
the witness was not included in list of witnesses. The district judge
gave judgment in favour of the plaintiff upon the evidence of a
witness whose name was not included in the list of witnesses filed
in accordance with section 121 of the Civil Procedure Code. His
Lordship Basnayaka CJ, taking a contrary view held that the
evidence of the witness was illegally admitted, and his evidence
could not form the basis of the judgment. 68N.L.R. 342
76. INQUIRIES The provisions of section 121(2) and 175(2) of
the Civil Procedure Code relating to listing of documents do not
apply to an inquiry under section 86(2) of the Civil Procedure

Code to set aside a decree entered for default. These provisions

are applicable only to trials of actions of regular procedure. see
Mercantile Credit Ltd. vs. Sisira Kumara and Another. 1991 (1) Sri
INQUIRIES The provisions of section 121(2) and 175(2) of the
Civil Procedure Code relating to listing of documents do not apply
to an inquiry under section 86(2) of the Civil Procedure Code to
set aside a decree entered for default. These provisions are
applicable only to trials of actions of regular procedure. see
Mercantile Credit Ltd. vs. Sisira Kumara and Another. 1991 (1) Sri
77. Walker & Sons Co. Ltd. vs. Masood, the list of documents
relied upon by the plaintiff was not filed fifteen days prior to the
date of trial. Upon it being objected to, the District Judge upheld
the objection and rejected the document. The order of the District
Judge was set aside by the Court of Appeal and the Supreme
Court on special leave being granted held that the document has
been referred to in the plaint, and in the answer by way of reply to
the plaint and made the following pertinent observations before
directing that the document should be accepted in evidence. 2004
(3) Sri L.R 195
78. *The DC has the discretion in terms of Section 175 (2) to
admit or to reject documents. The discretion of the trial Judge is
exercised purely to meet the ends of justice and the refusal to

receive the documents in question in evidence would in all

probability prevent the trial Judge coming to a just and equitable
determination. The Court in that case observed that the refusal to
receive the documents in question in evidence would in all
probability prevent the trial Judge coming to a just and equitable
determination.
79. General rules as to the exception where there is in the interest
of justice to do so; where it is necessary for the ascertainment of
the truth; where there is no doubt about the authenticity of the
documents (as for instance certified copies of public documents
or records of judicial proceedings); where sufficient reasons are
adduced for the failure to list the document (as for instance where
the party was ignorant of its existence at the trial).