steps to be followed before trial

Question 1

section 80A

Answer 1

the court shall not allow applications for these steps, after the matter is fixed for trial unless the court is satisfied that a grave and irremediable injustice would be caused to the party if the application is not permitted.

Question 2

interrogatories

sections

Answer 2

94
95
98
99
100
109

95 - service of interrogatories

Question 3

section 94

Answer 3

(1) interrogatories, exparte, through court, any party (defendant or plaintiff), before hearing

cannot deliver more than one and defendant cannot deliver questions unless he has previously tendered answers

Question 4

section 98

when party may refuse

Answer 4

a) It is scandalous or irrelevant
b) It is not for bona fide for the purposes of the action
c) That the answer will tend to criminate himself
d) The matter inquired is not so relevant at that stage of the action
e) Any other ground that the court thinks fit and proper

Question 5

section 99

Answer 5

answered by affidavit
10 days or within court allowed time

Question 6

section 100

Answer 6

applications to answer further
omits or refuses to answer or insufficently answer either by affidavit or by viva voce examination

if not falling within section 98

Question 7

section 109

failing to answer

Answer 7

a) In the case of a plaintiff he shall be liable to have his action dismissed
b) In the cases of a defendant he shall be liable to have his defense struck out
In addition to that the default party may be dealt as if he has committed an offence which amounts to contempt of court.

Question 8

notice to admit genuiness of documents

section 101

Answer 8

1. either party, exparte, by a notice issued by court, other party to admit, at least before 10 days from the hearing
2. admission or denial to admit shall be made in writing signed by the other party
3. if such notice is not given, no cost
4. permits the court to direct the party refusing to admit genuineness of such document to bear the expenses of proving the same irrespective of the result of the action.

The party on whom the notice is served has to comply with it within 4 days of service of notice. The admission or the denial shall be made in writing signed by the other party or his registered attorney.

Question 9

102

Answer 9

order for discovery of documents

The court may, at any time Order for
during the pendency therein of any action, discovery of
order any party to the action to declare by
affidavit all the documents which are or
have been in his possession or power
relating to any matter in question in the
action, and any party to the action may, at
any time before the hearing, apply to the
court for a like order.

Question 10

104

Answer 10

notice to produce documents for inspection

The above steps are optional steps. But list of witnesses and documents

before hearing, through exparte, inspect and take copies

Question 11

105

Answer 11

within 10 days of receiving the notice to inspect documents, that party shall notify the other party through court that the documents are available for inspection within 3 days from such delivery

Question 12

106

Answer 12

otherwise order will be made by court for such inspection

Question 13

107

Answer 13

application for such order be supported by affidavit
what documents
party pplying entitiled to inspect
they are in other party’s possession

Question 14

108

Answer 14

court can reserve order

Question 15

list of wtinesses and documents

section 121 (1)

Answer 15

21. (1) The parties may, after the
    witnesses. summons has been delivered for service on
    the defendant, obtain, on application to the
    court or to such officer as the court
    appoints in that behalf, before the day fixed
    for the hearing, summonses to persons
    whose attendance is required either to give
    evidence or to produce documents

Question 16

section 121 (2)

Answer 16

(2) Every party to an action shall, not
less than fifteen days before the date fixed
for the trial of an action, file or cause to be
filed in court after notice to the opposite
party
«) 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.

These lists shall be filed with a copy handed over or sent by registered post to the opposite party
The duty of filing the list rests with the registered attorney

Question 17

what happens if not listed under 121 (2)

Answer 17

If the name of the witness is not included in such a list, any such person cannot be subsequently called as a witness unless with the permission of court.
However, A PARTY to an action can give evidence whether his name is in the list or not.
Similarly, if a document sought to be produced in evidence is not included in the list of documents filed under Section 121, such document cannot be produced in evidence without the leave (permission) of the court. However, this limitation will not apply to documents tendered in cross-examination.

Question 18

unlisted witnesses

section 175 (1)

Answer 18

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.

Question 19

section 175 (2)

Answer 19

(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
party or handed over to a witness merely to
refresh his memory.

Question 20

cases

interrogatories

Answer 20

1. Namasiwayam Chetty v Ragsoobhoy
2. Appu Singo v Obis Appuhamy
3. Wijeratne v China Mutual life Insuarance co
4. senanayake v senanayake

Question 21

namasiwayan chetty v rhagsooboy

Answer 21

it was held that the failure to answer interrogatories served under Section 94 does not make a defendant liable to have his defense struck off he would become liable if an order under Section 100 of CPC has not been complied with

Question 22

Appu Singo v Obis Appuhamy

Answer 22

an order dismissing an action on the ground that the plaintiff refuses to answer interrogatories can be justified only in circumstances where there has been obstinacy (stubberness) or contumacy on the part of the defaulting party.

Question 23

Wijeratne v China Mutual life Insuarance co

Answer 23

the court is always unwilling before the right to relief is established, to make an order for discovery which may be injurious to the defendant, and will only be useful to the plaintiff if the succeeds in establishing his title to the relief.

Question 24

Senanayake v senanayake

Answer 24

where in an action on a cheque instituted by the payee against the drawer by way of summary procedure, the defendant has stated in his answer and affidavit that there was no consideration when he issued the cheque, he is entitled to ascertain from the plaintiff by interrogaraties what was the consideration for which the cheque was issued, so as to enable him to prepare for the case he has to meet.

Question 25

cases

unlisted witnesses

Answer 25

Girantha v Maria
Abrew v Sekaram
Abdul Munaf v Mohommad Yusuf
Silva v Silva
Asilin Nona v Wilbert Silva

Question 26

Girantha v Maria

Answer 26

the paramount consideration the judge has to consider is the ascertainment of truth and not to place a litigant at an advantage or a disadvantage of a technicality.

However, it is to be noted that the said interpretation was made by the court on the repealed section 121 which did not then specifically require the filing of a list of witnesses before 15 days of the trial

Question 27

Abrew v Sekaram

Answer 27

it was held that “inadvertence” (lack of attention) does not come within the meaning of “special circumstances” envisaged in Section 175.

Question 28

silva v silva

Answer 28

the defendants list was filed on 26th February 1999 and before 10 days from the date fixed for the trial of the action. The plaintiff’s objection was on 21st February 2005. The District Court held with the plaintiff, and refused to allow the witness to be called.
In appeal his lordship Justice Wimalachandra held;
I. The burden of satisfying court as to the existence of special circumstances is on the party seeking to call such witness
II. There was a long interval of time between the date of the list and date on which that application was made to call the witness. Therefore, there was no “there was no element of surprise” to the plaintiff because he had adequate notice of the witnesses that the defendant intended to call
III. The purpose of filing a list of witnesses is to prevent an element of surprise and thereby the prejudice that may be caused to the other party
IV. That the conduct of the defendant is not grossly negligent and there are no serious laches (unduly delay coupled with negligence) on his part

Question 29

Abdul Munaf v Mohommad Yusuf

Answer 29

The judgment and the observations of Gratiaen J, Girantha v maria cannot help the defendant-petitioner as the court was there placing an interpretation on the repealed section 121 which did not then specifically require the filing of a list of witnesses 15 days before the date of the trial

Question 30

Asilin Nona v Wilbert Silva

Answer 30

The judgment and the observations of Gratiaen J, Girantha v maria cannot help the defendant-petitioner as the court was there placing an interpretation on the repealed section 121 which did not then specifically require the filing of a list of witnesses 15 days before the date of the trial