CIVIL PROCEDURE CODE ORDINANCE

Arrangement of Sections

CHAPTER I

PRELIMINARY

1. Short title.

2. Omitted.

3. Omitted.

4. Where no provision is made special directions to be given by Court of Appeal.

5. Interpretation.

PART I

OF ACTIONS IN GENERAL

CHAPTER II

GENERAL PROVISIONS

6. Action.

7. Procedure of an action.

8. Procedure of action to be ordinarily regular.

CHAPTER III

OF THE Court OF INSTITUTION OF ACTION

9. Institution of actions: in what Court.

10. Of application for withdrawal and transfer of action.

CHAPTER IV

OF PARTIES AND THEIR APPEARANCES, APPLICATIONS, AND ACTS

11. Plaintiffs.

12. Where joint tenants or tenants in common.

13. Substituted and added plaintiffs.

14. Defendants.

14A. Substitution where person against whom a right to any relief is alleged to exist dies and the right to sue for relief survives.

15. Who may be joined as parties defendant.

16. Where numerous parties, one may sure or defend for all.

17. Mis-joinder not to defeat action.

18. Parties improperly joined may be struck out.

19. Intervention not otherwise allowed.

20. Conduct of the action.

21. Amendment of plaint.

22. Objections for non-joinder or mis-joinder to be taken before hearing.

23. Plaintiffs (or defendants) may authorise one of them to act for them.

CHAPTER V

OF RECOGNISED AGENTS AND AttorneyS-AT-LAW

24. Appearances may be by party in person, his recognised agent, or Attorney-at-Law.

25. Recognised agents.

26. Processes served on the recognised agent, effectual.

27. Appointment of registered Attorney.

28. Death or incapacity of registered Attorney.

29. Service on registered Attorney.

30. Agent to accept service.

30A. Agent to accept service in action upon mortgage of immovable property.

31. Repealed.

32. Repealed.

CHAPTER VI

OF THE SCOPE AND SUBJECT OF ACTION

33. Regular action how to be framed.

34. Every action shall include whole claim.

35. Joinder of claims in actions for immovable property.

36. In other cases.

37. Application by defendant in such cases.

38. Order of Court thereon.

CHAPTER VII

OF THE MODE OF INSTITUTION OF ACTION

39. Regular action to commence by plaint.

40. Requisites of plaint.

41. Land sued for to be described by metes and bounds or sketch.

42. Plaintiff suing in a representative character must show that the character has accrued to him.

43. Plaint must show defendant's interest and liability to be sued.

44. Exemption from bar from lapse of time to be shown.

45. Jurisdiction of Court to be averred.

46. Subscription of plaint.

47. Where plaint presented to wrong Court.

48. Order on rejection of plaint.

49. Memorandum of documents to be endorsed on plaint.

50. Plaintiff to produce with plaint document sued on.

51. To annex list of other documents.

52. And to state where document not in his possession is.

53. Action on lost negotiable instrument.

54. Document not produced with plaint inadmissible afterwards without leave.

CHAPTER VIII

OF THE ISSUE AND SERVICE OF SUMMONS

55. Summons.

56. Repealed.

57. Repealed.

58. Repealed.

SERVICE

59. Service of summons to be by registered post.

60. Personal service.

61. Proof of service.

62. Substituted service.

63. When more defendants than one, service on each.

64. Agents to accept service; partners and manager.

64A. Service on agent in mortgage action.

65. When defendant out of jurisdiction has manager within it.

66. Service on agent in charge of immovable property.

67. Misdescription not to vitiate summons.

68. Service on defendant in jail.

69. Service out of Sri Lanka. Application for, how made.

70. Order granting leave for service of summons out of Sri Lanka.

71. Form of summons.

CHAPTER IX

OF FILING ANSWER

72. Judgment against defendant if he admits claim of the plaintiff.

73. Answer to be in writing.

74. Repealed.

75. Requisites of answer.

76. Jurisdiction of Court to be specially traversed.

77. Rejection and amendment of answer.

78. Copy of answer to be delivered to plaintiff or his registered Attorney.

CHAPTER X

OF THE REPLICATION AND FURTHER PLEADINGS

79. When replication may be allowed.

CHAPTER XI

OF FIXING DAY OF TRIAL

80. Date of Trial.

81. A reasonable number of cases to be fixed for each day.

82. Postponement.

83. Undisposed off cases to be placed at the head of the roll.

CHAPTER XII

OF THE CONSEQUENCES AND CURE (WHEN PERMISSIBLE)
OF DEFAULT IN PLEADING OR APPEARING

84. Default of defendant.

85. Procedure in ex parte trial.

86. If defendant excuses his default, any order or judgment to be set aside.

87. Non-appearance of plaintiff.

88. No appeal against Judgment for default but order setting aside or refusing to set aside judgment appealable.

89. Where two or more defendants severally liable.

90. One of many defendants appearing, no decree for default need be passed against others.

CHAPTER XIII

OF MOTIONS

91. Motions.

91A. Postponements, adjournments and extensions of time.

CHAPTER XIV

OF THE JOURNAL

92. Journal.

CHAPTER XV

OF AMENDMENT

93. Amendments of pleadings.

CHAPTER XVI

OF DISCOVERY, INSPECTION, PRODUCTION, IMPOUNDING, AND RETURN OF DOCUMENTS

94. Interrogatories.

95. Service of interrogatories.

96. Cost of unreasonable interrogatories to be borne by party in fault.

97. Interrogatories to company.

98. When party may refuse to answer.

99. To be answered by affidavit.

100. Application for further answer.

101. Notice to admit genuineness of documents.

102. Order for discovery of documents.

103. Order for order production of documents.

103A. State required to make discovery or give inspection of documents under certain circumstances.

104. Notice to produce documents for inspection.

105. Time and place of such production to be specified by party receiving notice.

106. Otherwise, order for inspection to be made by Court.

107. Application for order to be supported by affidavit.

108. Court may reserve question as to discovery or inspection.

109. Consequence of not complying with order under this Chapter.

110. Court may inspect records of other Courts.

111. Parties to be ready with all documents at Trial.

112. Document called for and not produced shall not be received afterwards.

113. Documents to be received by Court.

114. No documents to be placed on record unless proved.

115. Court may order any document to be impounded.

116. When document admitted in evidence may be returned.

117. Provisions as to documents apply to other material objects.

TRANSLATIONS OF DOCUMENTS

118. Translations of documents.

119. Who shall be deemed to a translator.

120. Fees of translators.

CHAPTER XVII

OF WITNESSES AND DOCUMENTS

121. Summons to witnesses.

122. Payment of witness's expenses.

123. Witness's expenses to be paid before he gives evidence.

124. Court may order a sufficient sum to be paid.

125. Expenses of detention.

126. Summons to specify time, place, and purpose of attendance.

127. Summons to produce document.

128. Person in Court may be required to produce a document.

129. Service of summons.

130. Service must afford reasonable time for attendance.

131. Procedure to be followed when summons cannot be served.

132. If witness appears sequestration may be withdrawn.

133. Procedure when witness fails to appear.

134. Court may summon and examine any person as witness.

135. Person summoned must attend at time and place named in the summons.

136. When witness may depart.

137. Witness may be arrested for Non-compliance with summons.

138. Court may release arrested witness on bail.

139. Procedure when witness absconds.

140. Court may pass decree against party refusing to give evidence.

141. Rules as to witnesses to apply to a party summoned to give evidence.

142. Privilege from arrest of witness.

CHAPTER XVIII

OF ADJOURNMENTS

143. Adjournments.

144. Non-appearance of a party on the adjourned day.

CHAPTER XIX

OF THE TRIAL

145. Default of party to carry out purpose of adjournment.

146. Determining of issues.

147. Trial of issues of law first.

148. Adjournment for evidence.

149. Amendment of Issues.

150. Party having right to begin to state his case.

151. Party having right to begin to produce his evidence.

152. Cross-examination.

153. Re-examination.

154. Tender of documents in evidence.

155. Procedure to be followed before witness is asked to identify document.

156. Cross-examination as to knowledge.

157. Court to see witness thus tested.

158. And to decide on his competency.

159. Signature by a mark how proved.

160. Proof in the case of an illiterate person.

161. Case of documents whose execution need not be proved.

162. Copy of absent, original, how to be proved.

163. On termination of begining party's case the opposing party to state and prove his in like manner. Reply, when rebutting evidence is admissible.

164. Court may question witness at any time.

165. Court may recall witness.

166. When may Court permit departure from above rules.

167. Evidence of witness to be given orally in open Court.

168. Witness to be examined on oath, or affirmation.

169. Evidence of witness how taken down.

170. Any particular question and answer may be taken down.

171. The objection to question which is allowed and the decision of Court thereon may be taken down.

172. The objection to question disallowed and the decision of Court thereon to be taken down.

173. Court may record remarks on demeanour of witness.

174. Witnesses may be kept out of Court.

175. No witness to be called or document to be produced unless included in list of witnesses or documents.

176. Court may forbid indecent or scandalous questions.

177. Court shall forbid insulting questions.

178. Evidence de bene esse.

179. Evidence taken on affidavit or on commission.

180. Court may examine witness viva voce notwithstanding affidavit or commission.

181. What statements may affidavit contain.

182. Petitions cannot be converted to affidavits.

183. Who may administer oaths.

183A. Who may make affidavits in lieu of the parties to the action.

183B. Punishment for willful false statement made under section 183A.

CHAPTER XX

JUDGMENT AND DECREE

184. Judgment when pronounced.

185. Judge may pronounce judgment written by predecessor.

186. Judgment to be in writing and to be dated and signed in open Court.

186A. Validation in certain circumstances of judgments pronounced by successors in office of Judges.

187. Requisites of judgment.

188. Decree.

189. Amendment of judgments, decrees and orders.

190. Requisites of decree relating to immovable property.

191. Requisites of decree relating to movable property.

192. At what rate may interest on money be decreed.

193. When Court may decree specific performance.

194. When Court may decree payment by installments.

195. Decree when set-off or claim in reconvention is allowed.

196. Decree when claim in respect of mesne profits from date of action is allowed.

197. Mesne profits prior to date of action.

198. Interlocutory order for accounts.

199. Administration by the Court.

200. Decree in action for pre-emption.

201. Repealed.

202. Interlocutory order in action for dissolution of partnership.

203. Suit for account between principal and agent.

204. Decree or order postponing hearing.

205. Any person entitled to certified copies of decree and judgment.

206. Decree or copy to be primary evidence of decision.

207. Decrees must be decisive, and must not direct non-suit.

CHAPTER XXI

OF COSTS

208. Costs.

209. Court always to have Power to give or reserve costs.

210. Court shall direct by whom costs are to be paid and estimate value in certain cases.

211. Court may apportion costs.

212. Set-off costs.

213. Court may give interest on costs.

214. Costs to be taxed.

215. Action for costs by registered Attorney.

216. Registered Attorney to bear costs of taxation in what case.

CHAPTER XXII

OF EXECUTIONS

217. Classification of decrees.

EXECUTION OF DECREE TO PAY MONEY

218. Power of creditor to seize and sell debtor's property in satisfaction decree for payment of money.

219. Examination of judgment-debtor as to debts owing to him.

220. Application need not to be supported by affidavit.

221. Costs.

222. Execution of decree against legal representative of a deceased person.

223. Seizure and sale to be effected under order of Court.

224. Application therefor.

225. Court to satisfy itself as to conformity application. When application should be refused by the Court.

226. Duties of Fiscal on receiving writ.

227. Mode of Seizure.

228. As to attachment of negotiable instrument.

229. Seizure of debts, shares, and movable property not in possession of debtor and not deposited in Court to be by written notice of prohibition.

230. Judgment-debtor's debtor may be summoned, or execution may issue against him.

231. Payment by him to be discharge as against judgment-debtor.

232. Seizure of property deposited in any Court. Question of priority.

233. Notice by Fiscal.

234. Seizure of a money decree in favour of judgment-debtor.

235. Seizure of any other decrees.

236. Alienation by debtor subsequent to seizure void as against claims enforceable under seizure.

237. Seizure of immovable property by written notice of prohibition.

238. Effect of publication of seizure and registration of notice of seizure.

239. When seizure must be ordered to be withdrawn.

240. List to be made of property seized.

241. Claims to property seized to be reported by Fiscal and investigated by Court.

242. Claim to be made at earliest opportunity.

243. Claimant to adduce evidence.

244. Discretion of Court to release the property claimed.

245. When may Court disallow the claim.

246. Court may continue seizure subject to mortgage or lien.

247. Action by party claiming right.

248. Punishment as well as damages may be awarded for groundless claim.

249. Seizure of partnership property for debt of partner, other partner may apply for release.

250. Undertaking to be given by applicant.

251. Undertaking, to whose benefit it.

252. Interest of judgment-debtor may be sold.

253. Coin or currency notes seized how to dealt with.

254. How may decree of Court, seized be realised.

255. Procedure in case of other property seized by fiscal.

256. Advertisement where property exceeds five thousand rupees in value.

257. Repealed.

258. Proceedings at the sale.

259. Court may in certain cases postpone sale.

260. Deposit by purchaser.

261. Payment in full.

262. Default in payment, consequence off.

263. Fresh notification on resale.

264. Bid by a co-sharer.

265. Fiscal to satisfy himself as to bonafides of bidder.

266. Deficiency on resale to be purchaser on Fiscal's certificates.

267. On highest bidder not making deposit, next highest may be declared purchaser; difference to be paid by highest bidder on Fiscal's certificate.

268. Forfeiture of deposit.

269. Differences realised to augment the purchase money.

270. The amount certified by Fiscal to be recovered as by execution of decree. Cost of notice, publication, or proclamation.

271. No officer conducting sale to bid.

272. Holder of decree may be or purchase.

273. Place of sale of immovable property.

274. Sale of a negotiable instrument or a share in any public company.

275. Sale of other movable property.

276. What may vitiate sale.

277. Delivery to purchaser.

278. Delivery where third party is in possession.

279. Delivery of unsecured debt or share.

280. Endorsement of negotiable instrument or share certificate.

281. In case of other movable property Court may make vesting order.

282. Sale not absolute until after thirty days and confirmation by Court.

283. Order confirming the sale.

284. When purchaser may apply to set aside sale.

285. When purchaser may get back his purchase money.

286. Conveyance to purchaser. Conveyance to contain sufficient map of the premises.

287. Court may order delivery of possession to purchaser.

288. Mode of delivery where property is in occupancy of person entitled to occupy.

289. Right and title of judgment-debtor not divested by sale till confirmation and execution of Fiscal's conveyance.

290. Fiscal may enter property sold.

291. Person in possession may use and enjoy until confirmation of sale.

292. On confirmation and execution of conveyance, Fiscal to deliver possession to grantee.

293. Judgment-debtor may be restrained from waste.

294. Punishment for committing waste.

295. And for disobeying order.

Moneys paid to and realised by, the Fiscal

296. Mode of payment to Court by Attorneys-at-Law and other persons.

297. Mode of payment to Court by Fiscal.

Arrest and Imprisonment

298. Issue of warrant for arrest of debtor execution of decree for money.

299. Issue of notice on debtor as alternative to warrant.

300. Application for warrant to be made by petition and affidavit.

301. No arrest for sum under Rs. 1,500.

302. Woman not liable to arrest in execution.

303. Warrant to issue where debtor fails to appear on notice.

304. Execution of warrant of arrest.

305. Officer effecting arrest to release debtor on payment of amount of decree and costs of arrest.

306. Discharge of debtor where amount of decree and costs of arrest paid into Court.

307. Debtor who has no cause to show to be discharged or committed to jail.

308. Debtor who has cause to show to be discharged or committed to jail after inquiry.

309. Written statement to be filed by debtor who desires to show cause.

310. Debtor to be committed to jail or to give security for appearance pending inquiry.

311. Issue of warrant of committal to jail.

312. Debtor discharged under section 306 or section 308 not to be re-arrested.

313. Sufficient interim subsistence money to be deposited before arrest.

314. Subsistence allowance during imprisonment to be fixed on commitment.

315. Allowance to be paid monthly in advance.

315A. Power to vary allowance or additional payments.

316. Disbursements by decree holder to be deemed costs.

317. When debtor entitled to be discharged from jail.

318. Limit of imprisonment.

319. Endorsement on the warrant.

(B) DECREES FOR DELIVERY OF MOVABLE PROPERTY

320. Application for execution of decree for delivery of movable properly, how to be made.

321. Fiscal to procure delivery thereunder.

322. Amount to be leveled and manner of execution.

(C) DECREES FOR POSSESSION OF IMMOVABLE PROPERTY

323. Application for execution of decree for delivery of immovable property, how to be made.

324. Fiscal how to proceed thereunder.

Resistance to Execution of Proprietary Decrees

325. Procedure in event of resistance to execution of writ or delivery of property.

326. Punishment of person obstructing.

327. If resistance be made by bonafide claimant in possession, Court to dismiss the petition.

327A. Where claim is established only to a share of the property.

328. Court shall investigate dispute if bonafide claimant be dispossessed in effecting the execution.

329. Effect of order made under section 326 or section 327 or section 328.

330. How subsequent obstruction to be dealt with.

DECREES FOR EXECUTION OF CONVEYANCE OR TRANSFER OF PROPERTY

331. Application for enforcement of decree for execution of any conveyance, how to be made.

332. Service of the draft conveyance on judgment-debtor.

333. Execution of the conveyance by the Court.

333A. Meaning of conveyance in section 331, 332 and 333.

(E) and (F) MANDATORY AND RESTRAINING DECREES

334. Application for enforcement of decrees, how to be made. Court may issue writ of execution by seizure and sale.

335. Amount to be levied under writ.

GENERAL PROVISIONS

336. Discretion of Court to issue execution.

337. When subsequent application may be made for execution of decree partly satisfied.

338. Application by one of several decree-holders for execution of the decree for the benefit of all.

339. Application by assignee of a decree for execution thereof, how to be made.

340. Transferee bound by equities.

341. Legal representative of deceased debtor, how made liable.

342. Fiscal may adjourn sale.

343. Stay of proceedings adjournment of sale by Court.

344. All questions arising in execution to be determined by order of Court and not by separate action.

345. Procedure where there are cross decrees between the parties.

346. Procedure where parties recover different amounts under same decree.

347. Proceedings where one year that elapsed from date of decree.

348. Execution against surety.

349. Decree-holder to certify payment to the Court.

350. Concurrence and preference.

351. Where the same property seized in execution of decrees of more Courts than one.

352. Where several decree-holders are entitled to share rate ably in proceeds of a sale of debtor's property.

353. Order for payment of money enforced as a decree.

354. Fine imposed by civil Court, how to be levied.

CHAPTER XXIII

OF SERVICE OF PROCESS

355. Writs or warrants to be usually issued to the Fiscal for execution.

356. To whom may all purpose of Court not being writs or warrant be directed.

357. Fiscal to executed and serve processes of Court.

358. Proceedings against Fiscal for contempt.

359. Grama Seva Niladhari or constable to execute or serve processes in his own limits only.

360. Endorsement of process by Fiscal.

361. Duty of every Fiscal to assist.

362. Every writ or process to be valid for the whole of Sri Lanka.

363. What acts not within last section.

364. Form of precept.

365. When process may not be served.

366. Outer door not to be forced.

367. In effecting seizure of movable property inner door may be opened.

368. Person executing process always to have writ or copy with him.

369. Body of person to be arrested must be seized or touched.

370. Fiscal's return of writ or precept.

371. Report to be accompanied by affidavit to be attached as an exhibit.

372. Power of Fiscal or other person to administer oath therefor.

PART II

OF SUMMARY PROCEDURE

CHAPTER XXIV

OF SUMMARY PROCEDURE

373. Summary procedure by petition.

374. Form of petition.

375. If incidental to an action, petition to be entitled therein.

376. Affidavits and exhibits to be attached to petition.

377. If grounds are sufficient, order may be nisi, or interlocutory.

378. Order as to costs.

379. Form of order.

380. If grounds are insufficient petition to be refused.

381. Petition and order thereon to be filed.

382. Non-appearance of petitioner on day appointed.

383. When Court may take order nisi absolute.

384. Proceedings where both parties appear.

385. Right to reply.

386. Additional evidence when admitted.

387. Final order.

388. Endorsement on order nisi.

389. Final order made on non-appearance of respondent, not appealable, but may be set aside.

390. Parties to an action of summary procedure.

391. Journal in an action of summary procedure.

PART III

INCIDENTAL PROCEEDINGS

CHAPTER XXV

OF THE CONTINUATION OF ACTIONS AFTER ALTERATION OF A PARTY'S STATUS

392. On death of a party action does not abate, if right to sue survives.

393. On death of one out of more plaintiffs or defendants than one, if right to sue survive to or against the rest, action to proceed.

394. If, on death of one of several plaintiffs, the right to sue survives to the rest jointly with legal representative of deceased, legal representative may be made plaintiff.

395. On death of sole plaintiff, legal representative may be substituted.

396. If no application is made by legal representative action may be declared to abate.

397. In case of dispute, Court to decide who is legal representative.

398. Of substitution of legal representative of deceased defendant.

399. Action not abated by marriage of female party.

400. Effect of bankruptcy of plaintiff.

401. When assignee does not continue action.

402. When Court itself may order action to abate.

403. No fresh action to be brought where action has abated; but Court may set aside order.

404. Continuation of action in other cases of assignment of party's interest.

405. Applications under this Chapter how to be made.

CHAPTER XXVI

OF THE WITHDRAWAL AND ADJUSTMENT OF ACTION

406. Withdrawal and adjustment of action.

407. Permission to bring fresh action not to affect prescription.

408. Adjustment of actions out of Court.

CHAPTER XXVII

OF PAYMENT OF MONEY INTO Court

409. Payment of money into Court.

410. Notice thereof.

411. Interest on deposit not allowed to plaintiff after notice.

412. Procedure where plaintiff accepts payment in part satisfaction of his claim.

413. Procedure where plaintiff accepts payment in full satisfaction of his claim.

414. Money must be actually paid.

415. This Chapter to apply to any party.

CHAPTER XXVIII

OF SECURITY FOR COSTS

416. Security for costs where plaintiff resident out of Sri Lanka.

417. Security for costs where defendant resident out of Sri Lanka.

417A. Amount of security for payment of costs.

418. If security not furnished when ordered, action may be dismissed.

419. What amounts to, residing out of Sri Lanka.

CHAPTER XXIX

OF COMMISSIONS

A.—COMMISSIONS TO EXAMINE WITNESSES

420. Commission to examine sick person within jurisdiction.

421. To whom may commission issue.

422. Commission to examine in other cases.

423. When may Court issue commission to examine person outside Sri Lanka.

424. Court to execute the commission.

425. Return thereof.

426. Evidence taken under commission when admissible.

427. Foreign Courts to which provisions apply.

B—COMMISSIONS FOR LOCAL INVESTIGATIONS

428. Commission to make local investigation.

429. Return thereof.

C—COMMISSIONS TO EXAMINE ACCOUNTS

430. Commission to examine accounts.

431. Court to furnish instructions.

GENERAL PROVISIONS

432. Evidence taken on commission shall be filed and recorded in the action.

433. Court may order, payment into Court of expense.

434. Powers of commissioners.

435. Provisions of this Ordinance as to witnesses to apply.

436. Parties should appear before commissioner.

AFFIDAVITS

437. Evidence on affidavit.

438. Affidavit to be signed by declarant.

439. Case of illiterate person.

440. Alteration of affidavit.

CERTIFIED COPIES

440A. Issue of certified copies of statements or complaints made to, or of plans or sketches prepared by, police officers or inquirers and the production of such certified copies.

CHAPTER XXX

[Chapter XXX rep by s 59 of Law 20 of 1977.]

PART IV

ACTIONS IN PARTICULAR CASES

CHAPTER XXXI

ACTIONS BY OR AGAINST THE STATE, OR MINISTERS, DEPUTY MINISTERS, OR PUBLIC OFFICERS

456. Actions by or against the state.

457. Service of a process.

458. Attorney-General to have reasonable time to appear.

459. Service on public officer.

460. Public officer may apply for time to answer.

461. Attorney-General, Minister, Deputy Minister, and public officer entitled to notice.

461A. Procedure where no notice has been given under section 461.

462. Writ against person or property in such action.

463. When Attorney-General may intervene.

464. Where Attorney-General docs not intervene action to proceed as against private party.

465. Minister, Deputy Minister or public officer need not appear in person.

CHAPTER XXXII

466. Repealed.

467. Repealed.

468. Repealed.

469. Repealed.

CHAPTER XXXIII

ACTIONS BY AND AGAINST CORPORATIONS AND COMPANIES

470. Action by or against a corporation, or company.

471. Service on corporation or company.

CHAPTER XXXIV

ACTIONS BY AND AGAINST TRUSTEES, EXECUTORS, AND ADMINISTRATORS

472. Actions against trustees, executors, and administrators.

473. All executors made parties.

474. Executors and administrators liable in costs.

475. Husband of executrix not to be made party.

CHAPTER XXXV

ACTIONS BY AND AGAINST MINORS AND PERSONS UNDER OTHER DISQUALIFICATION

476. Action by minor.

477. Next friend and guardian ad litem.

478. Procedure where no next friend.

479. Court may appoint guardian ad litem.

480. No order to affect minor not represented.

481. Who may act as next friend.

482. On cause shown Court may remove next friend.

483. Retirement of next friend.

484. Death or removal of next friend.

485. Appointment of new next friend.

486. Minor's right of election on coming of age.

487. Discharge of next friend on minor's election to proceed with action.

488. Procedure on election of sole plaintiff to abandon on payment of costs.

489. Application to be ex parte.

490. Procedure on election of a co-plaintiff to repudiate.

491. Procedure when ex-minor applies to have action dismissed as unreasonable or improper.

492. Minor may in person sue for wages.

493. Application for appointment of guardian ad litem.

494. When officer of Court may be appointed.

495. Co-defendant may be appointed.

496. Court may remove guardian ad litem.

497. Death of guardian.

498. Procedure for execution of decree against minor heir.

499. When Court may allow next friend funds for suit.

500. Next friend may not compromise any action without leave of Court.

501. This Chapter to apply to persons of unsound mind and mentally deficient persons.

502. Majority, what is.

CHAPTER XXXVI

ACTIONS BY AND AGAINST PERSONS IN THE NAVAL, MILITARY, OR AIR SERVICE

503. Actions by or, against persons in the naval, military or air force.

504. Agent may sue or defend in person.

505. Service of process in such cases.

506. Copy of summons may be sent to commanding officer for service.

507. Warrant of arrest may likewise be delivered for execution.

CHAPTER XXXVII

ACTIONS OF ACCOUNT

508. Actions of account.

509. Interlocutory order for taking accounts.

510. Form and scope of order.

511. The taking of the accounts.

512. Reasonable care to be taken in appointing the days for the purpose.

513. Procedure where party makes default.

514. What provision apply when an order is made in an action for an inquiry.

515. Adjournment of the hearing until after the accounts shall have been taken.

CHAPTER XXXVIII

TESTAMENTARY ACTIONS

516. Deposit of the Will of deceased.

517. Application for probate or administration.

518. Probate or administration compulsory when there is a Will.

519. When Public Trustee may be appointed.

520. Security.

521. Application for administration by the Public Trustee.

522. Duties of Public Trustee in administering estates.

523. To whom grant should be made.

524. Mode of application and proof in case of a will.

525. Duty to report where person dies leaving property exceeding five hundred thousand rupees in value.

526. Who may apply for letters of administration.

527. Administration compulsory where estate is over five hundred thousand rupees in value.

528. Mode of application for letters of administration or certificates of heirship.

529. Publication of notice relating to application under section 524 or 528.

530. Appointment of guardian or manager.

531. Order on application made under section 524 or 528.

532. Procedure where there are objections to applications under section 524 or 528.

532A. Effect of acting in pursuance of a certificate of heirship.

533. At final hearing Court to frame issues.

534. Orders that may be made on final hearing.

535. Procedure where corporation is appointed administrator or executor.

536. Who may file caveat.

537. Power to recall, revoke or cancel probate administration or certificate of heirship.

538. Transitional for recall.

539. Inventory and valuation.

540. Limited probate or administration.

541. Administration pendente lite.

542. Power of administration when not limited.

543. Issue of letters ad colligenda.

544. Nomination.

545. No transfer to be effected in certain cases.

546. Probate when executor is appointed for a limited period.

547. Fresh grant, when allowed.

548. Rectification of errors.

549. Compensation of executors and administrators.

550. Compensation of several executors.

551. Filing of accounts.

552. Executor or administrator failing to administer within one year liable for interest.

553. Offences.

554. Transitional provisions.

554A. Interpretation.

554B. Repealed.

554C. Repealed.

554D. Repealed.

554E. Repealed.

CHAPTER XXXVIIIA

INSOLVENT TESTAMENTARY ESTATES

554F. When the estate of a deceased person is deemed to be insolvent.

554G. Where estate insolvent, applicant for probate to take steps to have it so declared.

554H. Where estate insolvent, executor or administrator to take steps to have it so declared.

554J. Creditor may also apply for adjudication of estate as insolvent.

554K. Order nisi declaring estate insolvent.

554L. When order nisi to be served.

554M. Person interested may intervene.

554N. Order absolute to be advertised.

554P. Actions and execution proceedings to be stayed after such order nisi.

554Q. When Court may appoint fit person to administer estate.

554R. How insolvent estate to be distributed.

554S. Powers and obligations of executors and administrators.

554T. Administration of estates not to be saved due to appeal.

CHAPTER XXXVIIIB

FOREIGN PROBATES

554U. Sealing of foreign probates or letters of administration.

554V. Conditions to be fulfilled before sealing.

554W. Security for payment of debts.

554X. Duplicate or copy of probate or letters of administration.

554Y. Liabilities of executors and administrators.

554Z. Resealing Court, deemed to be Court, issuing probate or letters of administration.

554AA. British Courts Resealing Rules deemed to be in force.

554BB. Interpretation.

CHAPTER XXXVIIIC

GENERAL AND TRANSITIONAL PROVISIONS IN TESTAMENTARY MATTERS

554CC. Stamp duty to be first charge on the estate of the deceased.

554DD. Transitional provision.

CHAPTER XXXIX

ACTIONS RELATING TO PERSONS OF UNSOUND MIND

555. Definition of "person of unsound mind”.

556. District Court to institute inquiry.

557. When may petition be dismissed.

558. Procedure on Court being satisfied that inquiry ought to be instituted.

559. Proceeding in such case.

560. Person alleged to be of unsound mind may be required to attend.

561. Assessors.

562. Issue.

563. Trial of issue to be public.

564. Person of unsound mind to be present.

565. Adjudication on the Issue.

566. When petition to be dismissed after inquiry.

567. Manager to be appointed.

568. Guardian of person.

569. Allowance to manager or guardian.

570. Duties of guardian.

571. Powers of manager, Restrictions on manager's powers.

572. Inventory Account.

573. Excess over expenditure, to be paid into kachcheri.

574. Relative may sue for account.

575. Manager or guardian how to be removed.

576. Punishment for neglect or refusal to account.

577. Where not necessary Court need not appoint manager.

578. Further inquiry, when person of unsound mind so found alleged to have recovered.

579. Saving of Mental Diseases Ordinance.

580. Appeal to Court of Appeal.

580A. Provisions applicable to mentally deficient persons.

581. Proceedings exempt from stamp duty.

CHAPTER XL

ACTIONS FOR THE APPOINTMENT OF GUARDIANS

582. Certificate of right to have charge of minor's property.

583. Application for appointment of person to have charge of property or person of minor.

584. Repealed.

585. Charge of property of minor to whom to be granted.

586. When charge of property may be granted to any fit person.

587. Guardian to have charge of the person and maintenance, to be appointed at the same time.

588. Costs of inquiries.

589. Impeachment of the inventory and accounts.

590. Any relative of minor may sue curator for accounts.

591. Recall of the certificates.

592. Resignation and discharge of curator of property, or guardian of person of minor.

593. Allowance of curator.

594. Minor's education.

CHAPTER XLI

ACTIONS FOR APPOINTMENT AND REMOVAL OF TRUSTEES

595. Trustees.

CHAPTER XLII

MATRIMONIAL ACTIONS

596. Procedure in matrimonial actions.

597. Court of district in which petitioner resides to have jurisdiction.

598. Co-defendant.

599. Affidavit where co-defendant is excused.

599A. Sections 598 and 599 to apply where adultery of the husband is alleged.

600. Repealed.

601. Repealed.

602. Decree to be passed declaring marriage dissolved.

603. Defendant when entitled to relief.

604. Decree to be decree nisi in the first instance.

605. Decree when to be made absolute.

606. Repealed.

607. Actions of nullity of marriage.

608. Application for separation or for divorce whether after decree of separation or otherwise.

609. Separated wife's property.

610. Separated wife's contracts rights to sue.

611. When decree for separation may be revised by the Court which made it.

612. Co-defendant may be order to pay costs.

613. Omitted.

614. Alimony pendente lite.

615. Settlement upon decree of divorce or separation.

616. Repealed.

617. Repealed.

618. Court may inquire into ante-nuptial and post-nuptial settlements.

619. Court may before decree for separation order maintenance of minor children.

620. Court may after decree of separation make order respecting custody of minor children.

621. Court may make interim order and also provide for custody of minor children in decree.

622. Court may after decree absolute make orders respecting custody of minor children.

623. Adjournment and further evidence.

624. Appeal.

624A. Enforcement of alimony and maintenance orders.

625. When parties may marry again.

626. Protection of third parties dealing with wife after decree made and before reversal.

627. Saving of the application of this Chapter as to Muslim and Kandyan marriages.

CHAPTER XLIII

INTERPLEADER ACTIONS

628. Interpleaded actions.

629. Form of plaint.

630. Property claimed to be deposited in Court.

631. Procedure at the hearing.

632. Who may not be sued in interpleader.

633. Of the plaintiff costs therein.

634. Procedure where stakeholder is sued by defendant.

CHAPTER XLIV

ACTIONS WHICH FAIL FOR WANT OF JURISDICTION

635. Power to make order for costs not withstanding want of jurisdiction.

636. When want of jurisdiction caused by exclusive jurisdiction of any Court or Tribunal, averment of jurisdiction in plaint is traversed.

637. Order of dismissal not reversed on appeal, conclusive as to jurisdiction of other Court.

638. And conversely.

639. Repealed.

640. Repealed.

641. Repealed.

642. Repealed.

643. Repealed.

644. Repealed.

645. Repealed.

646. Repealed.

647. Repealed.

648. Repealed.

649. Repealed.

PART V

PROVISIONAL REMEDIES

CHAPTER XLVII

OF ARREST AND SEQUESTRATION BEFORE JUDGMENT

650. Arrest before judgment.

651. Arrested person to be discharged on giving bail otherwise committed to prison.

652. Arrested person may deposit money with Fiscal instead of giving bail.

653. Of sequestration before judgment.

654. Plaintiff to give security before such warrant of arrest or sequestration is issued.

655. Repealed.

656. Repealed.

657. Manner of sequestration.

658. Manner of investigating any claim to property sequestered.

659. Costs and damages where sequestration wrongful.

660. Effect of sequestration on prior rights.

661. Subsequent seizure of property under decree unnecessary.

CHAPTER XLVIII

OF INJUNCTIONS

662. When Injunction may be granted.

663. How disobedience to injunction or enjoining order be punished.

664. Application to be on notice, to opposite party.

665. Effect on corporation.

666. How order set aside or varied.

667. When Court may award compensation.

CHAPTER XLIX

OF INTERIM ORDERS

668. Order for sale of perishable property.

669. Order for detention, preservation, or inspection of property.

670. Application herein to be made by way of summary procedure.

CHAPTER L

OF THE APPOINTMENT OF RECEIVERS

671. When Court may appoint a receiver.

672. Notice of application.

673. Receivers to give security and pass accounts.

674. Power of Court to remove, or require fresh security.

675. Powers conferrable by the Court not to exceed those of parties themselves.

PART VI

OF SPECIAL PROCEEDINGS

CHAPTER LI

OF REFERENCE TO ARBITRATION

676. Matter in difference in action may by consent of parties be referred to Arbitration.

677. The matter in difference to referred to Arbitrator by order of Court.

678. Appointment of an Umpire.

679. In event of death Court may appoint new Arbitrator; or supersede Arbitration.

680. When Court may appoint Umpire.

681. Powers of umpire appointed after reference.

682. Court to issue process.

683. Extension of time for award.

684. When umpire may enter on the reference in lieu of Arbitrators.

685. Award to be filed in Court.

686. Award may be in form of special case.

687. Application to set aside or correct the award.

688. When Court may correct award.

689. Court may make order as to costs.

690. When Court may remit award for reconsideration.

691. When an award is void.

692. Judgment to be according to the award.

693. Repealed.

694. Repealed.

695. Repealed.

696. Repealed.

697. Repealed.

698. Repealed.

CHAPTER LII

OF PROCEEDINGS ON AGREEMENT OF PARTIES

699. Agreed statement of case for decision of Court.

700. When value of property is to be stated therein.

701. To what Court agreement may be presented.

702. Judgment and decree thereon.

CHAPTER LIII

OF SUMMARY PROCEDURE ON LIQUID CLAIMS

703. Action by summary procedure on liquid claims.

704. Defendant not to appear or defend except with leave.

705. Instrument to be produced with the plaint, and affidavit to be made.

705A. Repealed.

705B. Repealed.

706. When leave to defend may be granted.

707. When Court may set aside decree.

708. Court may order deposit of instrument.

709. Recovery of expenses incurred in noting.

710. Saving clause.

711. Special trial roll to be kept.

PART VII

OF THE AIDING AND CONTROLLING OF EXECUTORS AND ADMINISTRATORS, AND THE JUDICIAL SETTLEMENT OF THEIR ACCOUNTS

CHAPTER LIV

OF AIDING, SUPERVISING, AND CONTROLLING EXECUTORS AND ADMINISTRATORS

712. Proceedings to discover property withheld.

713. Order to accompany citation.

714. Examination of person cited.

715. Further evidence.

716. Unless the person cited gives security decree awarding to possession to the petitioner.

717. Disobedience to decree contempt.

718. Executor how compelled to return inventory and accounts.

719. How executor or administrator may be discharged from commitment.

720. Petition by creditor or legatee to compel payment.

721. Citation to issue.

722. Appeal.

CHAPTER LV

OF THE ACCOUNTING AND SETTLEMENT OF THE ESTATE

723. Executor may file intermediate account at any time.

724. Court may compel executor to file intermediate account at any time.

724A. Procedure where executor or administrator has failed to file an account under section 551.

724B. Court to grant a discharge to the executor or administrator where estate has been duly administered and distributed.

725. Judicial settlement of account.

726. Who may apply for accounting.

727. Order to account.

728. Person cited may bring in other parties.

729. Executor may petition for judicial settlement of his account.

730. Hearing.

731. Creditor not citied may appear.

732. Executor whose grant has been revoked may present petition.

733. Affidavit to be annexed to accounts.

734. Vouchers to be produced.

735. Accounting party to be examined.

736. Court to determine claims.

737. Prescription.

738. Court may allow for property lost.

739. Effect of judicial settlement.

740. Decree for payment and distribution.

741. When specific property may be delivered.

742. When money may be retained.

743. Share of person of unsound mind minor.

744. Appeal.

CHAPTER LVI

OF ACCOUNTING IN CASES OF PERSONS OF UNSOUND MIND AND OF MINORS

745. Compulsory judicial settlement of accounts in cases of persons of unsound mind, mentally deficient persons and minors.

746. Voluntary judicial settlement of accounts in case of persons of unsound mind and minors.

747. Procedure.

748. Appeal.

CHAPTER LVII

GENERAL CLAUSES

749. Requisites of petitions relating to persons of unsound mind, mentally deficient persons, minors, or trustees.

750. Citations.

751. Security bonds.

752. Security From managers and curators.

PART VIII

OF APPEALS

CHAPTER LVIII

753. Powers of revisions by Appeal.

754. Mode of preferring appeal.

755. Notice of appeal.

756. Security to be by bond and with surety.

757. Procedure in respect of application for leave to appeal.

758. Language and form of appeal.

759. Where petition to be rejected.

760. When one of several plaintiffs or defendants may appeal against whole decree.

760A. Death or change of status of party to appeal.

CHAPTER LIX

OF THE EXECUTION OF DECREES UNDER APPEAL

761. Application for execution of decree not to be entertained till expiry of appealable time.

762. Repealed.

763. Application for execution of decree pending appeal must be on notice to debtor; and execution Will only be granted on security.

764. Exception in favour of the State.

CHAPTER LX

OF APPEAL NOTWITHSTANDING LAPSE OF TIME

765. Appeal notwithstanding lapse of time.

766. Petition therefor, to be presented immediately to the Court of Appeal.

767. Order of Court of Appeal thereon.

CHAPTER LXI

HEARING OF THE APPEAL

768. Hearing of appeal

769. Appellant and respondent to be heard.

770. Power of Court to adjourn hearing.

771. Rights of respondent to object to decree.

772. Rights of respondent at hearing.

773. Power of Court to dismiss the appeal, affirm, vary or set aside the decree or direct new trial.

774. Judgment of the Court.

775. Repealed

776. Decree of the Court of Appeal.

777. Execution of the decree passed in appeal.

CHAPTER LXII

[Chapter LXII rep by s 122 of Law 20 of 1977.]

CHAPTER LXIII

[Chapter LXIII rep by Ordinance No. 31 of 1909.]

CHAPTER LXIV

PART IX

OF SUMMARY PROCEDURE IN RESPECT OF CONTEMPTS OF Court

CHAPTER LXV

792. Summary procedure case of contempt.

793. Summons to accused.

794. When may Court issue warrant simultaneously with summons.

795. Judge to record minute of facts observed by him.

796. On day of hearing Court may ask accused if he admits truth of charge.

797. Form of the conviction and sentence thereon.

798. Appeal to Court of Appeal.

799. Procedure for carrying out sentence of Court in case of conviction for contempt.

800. Sentences to be imposed under this Chapter.

PART IXA

SPECIAL PROCEDURE FOR SMALL CLAIMS CourtS

CHAPTER LXVI

GENERAL

801. Provisions for Small Claims Courts.

PLEADINGS

802. Filing of plaint and other pleadings.

803. Plaint to be numbered.

804. Plaint to state cause.

805. What cause of action may be joined.

806. Summons to issue.

SUMMONS

807. Of the transmission of summons.

808. Of the service of summons.

PROCEEDINGS OF APPEARANCE

809. The defendant to appear and admit or deny the claim.

810. Examination of parties.

811. Of the claim in reconvention.

812. Of entering admission.

MISCELLANEOUS PROVISIONS RELATING TO PLEADINGS

813. Action founded upon account or instrument for payment of money.

814. Immaterial variance to be disregarded.

815. Amendment of pleading.

816. Consequence of neglect to plead claim in reconvention.

817. Cases to which section 816 does not apply.

818. Judgment upon claim in reconvention.

FIXING DATE OF TRIAL

819. Fixing the case for trial.

ADJOURNMENTS

820. Adjournments.

821. The Court may upon adjournment order examination of witnesses.

OF DEFAULT OF APPEARANCE

822. Proceedings on default of appearance of plaintiff.

INTERROGATORIES

823. Sections 94 to 100 not to apply to Small Claims Courts.

OF THE ATTENDANCE OF WITNESSES

824. The attendance of witnesses.

825. Chapter XVII, exclusive of section 121, to apply to Small Claims Courts.

OF THE TRIAL

826. The Trial.

827. Record of the proceedings.

828. Extent of application of Chapter XIX to Small Claims Courts.

829. Action by way of summary procedure on liquid claims.

OF THE JUDGMENT

830. Judgments and decrees.

831. Appeal and stay of execution pending appeal.

EXECUTIONS

832. Executions.

TAXATION OF COSTS AND STAMP DUTY

833. Taxation of costs and stamp duty.

APPEALS

833A. Appeals.

833B. Exemption from stamp duty.

CHAPTER LXVIA

PROCEDURE RELATING TO INQUIRIES INTO DISPUTES AFFECTING LAND WHERE A BREACH OF THE PEACE IS THREATENED OR LIKELY

833C. Reference of disputes affecting land.

833D. Interim order.

833E. Validity of orders.

833F. Bar to fresh proceedings.

833G. Where proceedings are filed in Competent Court or Tribunal.

833H. Determination and order of Judge of Small Claims Court when dispute is in regard to possession.

833J. Determination and order of Judge when dispute is in regard to any other right.

833K. Security for possession or exercise of any right may be ordered.

833L. Order where no party appears.

833M. Material on which Judge may act.

833N. Penalty for contravention of, or failure to comply with order.

833P. Order not to affect right or interest which may be established in competent Court or tribunal.

833Q. Meaning of "dispute affecting land”.

833R. Fiscal to execute orders of Court.

PART X

CHAPTER LXVII

MISCELLANEOUS

834. Privilege from arrest of Judges, Parties Registered Attorneys and Counsel.

835. When may Civil Court send cases for investigation to Magistrate.

836. Warrant of arrest may be cancelled on ground of illness of party.

837. Judgment debtor under arrest may be released on illness.

838. Released judgment debtor may be rearrested.

839. Inherent powers of Court saved.

840. Regulations.

SCHEDULES.

12 of 1895,

23 of 1901,

12 of 1904,

14 of 1907,

31 of 1909,

9 of 1917,

39 of 1921,

42 of 1921,

21 of 1927,

23 of 1927,

25 of 1927,

15 of 1930,

26 of 1930,

4 of 1940,

18 of 1944,

39 of 1945,

12 of 1973,

44 of 1973,

25 of 1975,

19 of 1977,

20 of 1977,

7 of 1949,

43 of 1949,

20 of 1954,

48 of 1954,

32 of 1957,

49 of 1958,

3 of 1960,

24 of 1961,

5 of 1964,

23 of 1969,

24 of 1969,

53 of 1980,

79 of 1988,

2 of 1990,

6 of 1990,

9 of 1991,

6 of 1993,

14 of 1993,

11 of 1995,

12 of 1996,

14 of 1997,

38 of 1998,

34 of 2000,

20 of 2002,

4 of 2005,

11 of 2010.

AN ORDINANCE to consolidate and amend the law relating to the procedure of the Civil Courts.

[Date of Commencement: 1st August, 1890]

CHAPTER I

PRELIMINARY

1. Short title.

This Ordinance may be cited as the Civil Procedure Code.

12. .

[Omitted]

13. .

[Omitted]

4. Where no provision is made special directions to be given by Court of Appeal.

In every case in which no provision is made by this Ordinance, the procedure and practice hitherto in force shall be followed, and if any matter of procedure or practice for which no provision is made by this Ordinance or by any law for the time being in force shall after this Ordinance comes into operation arise before any Court, such Court shall thereupon make application to the Court of Appeal for, and the Court of Appeal shall and is hereby required to give, such special orders and directions thereupon as the justice of the case shall require:

Provided always that nothing in this Ordinance contained shall be held in any way to affect or modify any special rules of procedure which, under or by virtue of the provisions of any enactment, may have from time to time been laid down or prescribed to be followed by any civil Court in Sri Lanka in the conduct of any action, matter, or thing of which any such Court can lawfully take cognisance, except in so far as any such provisions are by this Ordinance expressly repealed or modified.

5. Interpretation.

The following words and expressions in this Ordinance shall have the meanings hereby assigned to them, unless there is something in the subject or context repugnant thereto;

"action” is a proceeding for the prevention or redress of a wrong;

"Attorney-General” includes the Solicitor-General, the Additional Solicitor-General and any State Counsel specially authorised by the Attorney-General to represent the Attorney-General;

[Subs by s 2(1) of Law 20 of 1977.]

"cause of action” is the wrong for the prevention or redress of which an action may be brought, and includes the denial of a right, the refusal to fulfill an obligation, the neglect to perform a duty and the infliction of an affirmative injury;

.

["Chief clerk” omitted by s 2(2) of Law 20 of 1977.]

"civil Court” means a Court in which civil actions may be brought;

.

["clerk” omitted by s 2(2) of Law 20 of 1977.]

"counsel” means an Attorney-at-Law instructed by a registered Attorney;

"Court” means a Judge empowered by law to act judicially alone, or a body of Judges empowered by law to act judicially as a body, when such Judge or body of Judges is acting judicially;

"decree” means the formal expression of an adjudication upon any right claimed or defense set up in a civil Court, when such adjudication, so far as regards the Court expressing it, decides the action or appeal; (An order rejecting a plaint is a decree within this definition.)

"Fiscal” includes a Deputy Fiscal

[Ins by s 2 of Act 79 of 1988.]

"foreign Court” means a Court situate beyond the limits of, and not having authority in, Sri Lanka;

"foreign judgment” means the judgment of a foreign Court;

.

["Her Majesty” omitted by s 2(3) of Law 20 of 1977.]

"Judge” means the presiding officer of a Court and includes Judges of the Supreme Court and of the Court of Appeal, District Judges, Judges of Family Courts and Judges of Primary Courts;

[Subs by s 2(4) of Law 20 of 1977.]

"judgment” means the statement given by the Judge of the grounds of a decree or order;

"judgment-creditor” and "decree-holder” mean any person in whose favor a decree or order capable of execution has been made, and include any transferee of such decree or order;

"judgment-debtor” means any person against whom a decree or order capable of execution has been made;

"legal document” includes all processes, pleadings, petitions, affidavits, notices, motions and other documents, proceedings, and written communications;

[Ins by s 2(5) of Law 20 of 1977.]

"order” means the formal expression of any decision of a civil Court which is not a decree;

"original Court” includes District Courts, Family Courts and Primary Courts;

.

["Public officer” omitted by s 2(6) of Law 20 of 1977.]

"Public Trustee” means the Public Trustee of Sri Lanka appointed under the Public Trustee Ordinance and includes a Deputy Public Trustee or any other state officer generally or specially authorised by the Public Trustee to act on his behalf;

[Ins by s 2(6) of Law 20 of 1977.]

"recognised agent” includes the persons designated under that name in section 25 and no others;

"registered Attorney” means an Attorney-at-Law appointed under Chapter V by a party or his recognised agent to act on his behalf;

[Ins by s 2(7) of Law 20 of 1977.]

"Registrar” in relation to a Court includes an Additional, Deputy or Assistant Registrar;

[Subs by s 2(8) of Law 20 of 1977.]

.

["secretary” omitted by s 2(8) of Law 20 of 1977.]

"signed” includes "marked” when the person making the mark is unable to write;

.

["The Governor-General” omitted by s 2(9) of Law 20 of 1977.]

"the Island” and "this Island” means respectively the Island of Sri Lanka;

[Subs by s 2(10) of Law 20 of 1977.]

.

["The Queen” omitted by s 2(3) of Law 20 of 1977.]

"written” and "writing” include "printed” and "print” and "lithographed” and "lithograph” respectively.

PART I

OF ACTIONS IN GENERAL

CHAPTER II

GENERAL PROVISIONS

6. Action.

Every application to a Court for relief or remedy obtainable through the exercise of the Court's power or authority, or otherwise to invite its interference, constitutes an action.

7. Procedure of an action.

The procedure of an action may be either "regular” or "summary”.

Illustrations

In actions of which the procedure is regular, the person against whom the application is made is called upon to formally state his answer to the case which is alleged against him in the application before any question of fact is entertained by the Court, or its discretion thereon is in any degree exercised.

In actions of which the procedure is summary, the applicant simultaneously with preferring his application supports with proper evidence the statement of fact made therein; and if the Court in its discretion considers that a prima facie case is thus made out—

(a) either the order sought is immediately passed against the defendant before he has been afforded an opportunity of opposing it, but subject to the expressed qualification that it Will only take effect in the event of his not showing any good cause against it on a day appointed therein for the purpose;

(b) or a day is appointed by the Court for entertaining the matter of the application on the evidence furnished, and notice is given to the defendant that he Will be heard in opposition to it on that day if he thinks proper to come before the Court for that purpose.

8. Procedure of action to be ordinarily regular.

Save and except actions in which it is by this Ordinance or any other law specially provided that proceedings may be taken by way of summary procedure, every action shall commence and proceed by a course of regular procedure, as hereinafter prescribed.

[S 8 subs by s 2 of Act 53 of 1980.]

CHAPTER III

OF THE Court OF INSTITUTION OF ACTION

9. Institution of actions: in what Court.

Subject to the pecuniary or other limitations prescribed by any law, action shall be instituted in the Court within the local limits of whose jurisdiction—

(a) a party defendant resides; or

(b) the land in respect of which the action is brought lies or is situate in whole or in part; or

(c) the cause of action arises; or

(d) the contract sought to be enforced was made.

When one of two or more Courts may entertain an action.

When it is alleged to be uncertain within the local limits of the jurisdiction of which of two or more Courts any immovable property is situate, any one of those Courts may, if satisfied that there is ground for the alleged uncertainty, record a statement to that effect, and thereupon proceed to entertain and dispose of any action relating to that property; and its decree in the action shall have the same effect as if the property were situate within the local limits of its jurisdiction:

Provided that the action is one with respect to which the Court is competent as regards the nature and value of the action to exercise jurisdiction.

10. Of application for withdrawal and transfer of action.

Any of the parties to an action which is pending in any original Court may, before trial, and after notice in writing to the other parties of his intention so to do, apply to the Court of Appeal by motion, which shall be supported by affidavit setting out the grounds on which it is based, for the withdrawal of such action from the Court in which it is pending and for the transfer of it for trial to any other Court competent to try the same in respect of its nature and the amount or value of its subject-matter. And the Court of Appeal may, on any such application after hearing such of the parties as desire to be heard, and on being satisfied that such withdrawal and transfer are desirable for any of the following reasons—

(a) that a fair and impartial trial cannot be had in any particular Court or place; or

(b) that some question of law of unusual difficulty is likely to arise; or

(c) that it is expedient on any other ground.

Withdraw any such action pending in any such Court, and transfer it for trial to any other such Court as aforesaid, upon any terms that the Court of Appeal shall think fit. When the action might have been instituted in any one of several Courts, the balance of convenience only shall be deemed sufficient cause for such withdrawal and transfer to one of the alternative Courts.

Stamp duty.

In no case in which any action is so transferred as aforesaid from one Court to another shall any stamp fee be leviable in the Court to which the action is transferred on any pleading or exhibit on which the proper stamp fee has been paid in the Court from which the action is so transferred.

[S 10 subs by s 3 of Law 20 of 1977.]

CHAPTER IV

OF PARTIES AND THEIR APPEARANCES, APPLICATIONS, AND ACTS

11. Plaintiffs.

All persons may be joined as plaintiffs in whom the right to any relief claimed is alleged to exist, whether jointly, severally, or in the alternative, in respect of the same cause of action. And judgment may be given for such one or more of the plaintiffs as may be found to be entitled to relief for such relief as he or they may be entitled to, without any amendment of the plaint for that purpose. But the defendant though unsuccessful, shall be entitled to his costs occasioned by so joining any person who is not found entitled to relief, unless the Court in disposing of the costs of the action otherwise directs.

12. Where joint tenants or tenants in common.

Where two or more persons are entitled to the possession of immovable property as joint tenants or tenants in common, one or more of them may maintain an action in respect of his or their undivided shares in the property in any case where such an action might be maintained by all.

13. Substituted and added plaintiffs.

Where an action has been instituted in the name of the wrong person as plaintiff, or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the action, if satisfied that the action has been so commenced through a bonafide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person or persons, with his or their consent, to be substituted or added as plaintiff or plaintiffs, upon such terms as the Court thinks just.

14. Defendants.

All persons may be joined as defendants against whom the right to any relief is alleged to exist, whether jointly, severally, or in the alternative, in respect of the same cause of action. And judgment may be given against such one or more of the defendants as may be found to be liable, according to their respective liabilities, without any amendment.

14A. Substitution, where person against whom a right to any relief is alleged to exist dies and the right to sue for relief survives.

(1) Where a person against whom the right to any relief is alleged to exist is dead and the right to sue for such relief survives, the person in whom such right is alleged to exist, may make an application by way of summary procedure supported by affidavit to the Court in which an action for the same may be instituted, in the following manner—

(a) Where such person has died intestate leaving an estate, specifying the name, description, and place of abode of any person whom he alleges to be the legal representative, as defined in section 394(2), of the deceased and whom he desires to be made the defendant in the proposed action in place of the deceased. Such application shall also specify the name, description, and place of abode of the person or persons whom the applicant alleges to be the other heir or heirs of the deceased; or

(b) Where probate of the Will or letters of administration to the estate of the deceased has not been issued or its issue is likely to be unduly delayed, specifying, the name, description, and place of abode of any person whom he alleges to be the person to whom probate of the Will or letters of administration to the estate of the deceased would ordinarily be issued and whom he desires to be made the defendant in the proposed action in place of the deceased. Such application shall also specify the name, description, and place of abode of the person or persons whom the applicant alleged to be the heir or heirs of the deceased.

(2) Upon receipt of an application under paragraph (a) of subsection (1), and the Court where it is satisfied that there are grounds therefor, and, after the issue of notice on the representative named in such application and such other persons, if any, and after causing notice of such application, (in the form No. 2A in the First Schedule) to be advertised in a local newspaper to be selected by the Court, or by such other mode of advertisement in lieu of such publication as to the Court seems sufficient, and after such inquiry as the Court may consider necessary and upon such terms as it thinks fit, the Court may order that such representative or such other person as the Court may consider fit be appointed in place of the deceased, for the institution of such action:

Provided, that the person to be so appointed in place of the deceased may object that he is not the legal representative of the deceased or that he should not be appointed in place of the deceased.

(3) Upon receipt of an application under paragraph (b) of subsection (1), the Court may, where it is satisfied that probate of the Will or letters of administration to the estate of the deceased has not been issued or is likely to be unduly delayed, and, after the issue of notice on the person alleged in such application to be the person to whom probate of the Will or letters of administration to the estate of the deceased would ordinarily be issued and such other persons, if any, causing notice of such application, (in the form No. 2A in the First Schedule) to be advertised in a local newspaper to be selected by the Court or by some other mode of advertisement in lieu of such publication as to the Court seems sufficient, and after such inquiry as the Court may consider necessary and upon such terms as it thinks fit, order that the person, who appears to the Court to be the person to whom probate of the Will or letters of administration to the estate of the deceased would ordinarily be issued, be appointed in place of the deceased, for the institution of such action:

Provided, that the person to be so appointed may object that he is not the person to whom probate of the Will or letters of administration to the estate of the deceased would ordinarily be issued or that he should not be appointed in place of the deceased.

(4) Notwithstanding the provisions of subsection (2) or subsection (3), the Court may make an order under any one of those subsections, only where—

(a) it is satisfied that the delay in the institution of the action would render such action not maintainable by reason of the provisions of the Prescription Ordinance; or

(b) a period of six months had lapsed after the death of the deceased.

(5) Where after an order appointing a representative in place of the deceased has been made under subsection (2) or subsection (3) and an action instituted against such person in place of such deceased, an executor of the Will. or an administrator of the estate, as the case may be, of such deceased, is appointed in proceedings instituted under Chapter XXXVIII of this Code, such executor or administrator shall, on the application by way of summary procedure, supported by affidavit, made by the plaintiff or any other party to such action or by such executor or administrator, be substituted in place of the person appointed under subsection (2) or subsection (3), and the action shall thereupon proceed in the same manner as if such executor or administrator had originally been made a defendant, and had been a party to the previous proceedings in the action.

[S 14A ins by s 2 of Act 6 of 1990.]

15. Who may be joined as parties defendant.

The plaintiff may, at his option, join as parties to the same action all or any of the persons severally, or jointly and severally, liable on any one contract, including parties to bills of exchange and promissory notes.

16. Where numerous parties, one may sure or defend for all.

Where there are numerous parties having a common interest in bringing or defending an action, one or more of such parties may, with the permission of the defend for all Court, sue or be sued, or may defend in such an action on behalf of all parties so interested.

Notice

But the Court shall in such case give, at the expense of the party applying so to sue or defend, notice of the institution of the action to all such parties, either by personal service or (if from the number of parties or any other cause such service is not reasonably practicable, then) by public advertisement, as the Court in each case may direct.

17. Mis-joinder not to defeat action.

No action shall be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every action deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.

Nothing in this Ordinance shall be deemed to enable plaintiffs to join in respect of distinct causes of action.

If the consent of anyone who ought to be joined as a plaintiff cannot be obtained, he may be made a defendant, the reasons therefor being stated in the plaint.

18. Parties improperly joined may be struck out.

Addition of parties.

(1) The Court may on or before the hearing, upon the application of either party, and on such terms as the Court thinks just, order that the name of any party, whether as plaintiff or as defendant improperly joined, be struck out; and the Court may at any time, either upon or without such application, and on such terms as the Court thinks just, order that any plaintiff be made a defendant, or that any defendant be made a plaintiff, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in that action, be added.

(2) Every order for such amendment or for alteration of parties shall state the facts and reasons which together form the ground on which the order is made. And in the case of a party being added, the added party or parties shall be named, with the designation "added party”, in all pleadings or processes or papers entitled in the action and made after the date of the order.

19. Intervention not otherwise allowed.

No person shall be allowed to intervene in a pending action otherwise than in pursuance of, and in conformity with, the provisions of the last preceding section. And no person shall be added as plaintiff, or as the next friend of a plaintiff, without his own consent thereto;

Except in under section 16.

Provided however that any person on cases whose behalf an action is instituted or under section defended may apply to the Court to be made a party, and all parties whose names are so added as defendants shall be served with a summons in manner hereinafter mentioned, and the proceedings as against them shall be deemed to have begun only on the service of such summons.

20. Conduct of the action.

The Court may give the conduct of the action to such plaintiff as it deems action proper.

21. Amendment of plaint.

Where a defendant is added, the plaint shall, unless the Court direct otherwise, be amended in such manner as may be necessary, and a copy of the amended plaint shall be served on the new defendant and on the original defendants.

22. Objections for non-joinder or mis-joinder to be taken before hearing.

All objections for want of parties, or for joinder of parties who have no interest in the action, or for misjoinder as
co-plaintiffs or co-defendants, shall be taken at the earliest possible opportunity, and in all cases before the hearing. And any such objection not so taken shall be deemed to have been waived by the defendant.

23. Plaintiffs (or defendants) may authorise one of them to act for them.

When there are more plaintiffs than one, any one or more of them may be authorised by any other of them to appear, plead, or act for such other in any proceeding under this Ordinance; and in like manner, when there are more defendants than one, any one or more of them may be authorised by any other of them to appear, plead, or act for such other in any such proceeding. The authority shall be in writing signed by the party giving it, and shall be filed in Court.

CHAPTER V

OF RECOGNISED AGENTS AND AttorneyS-AT-LAW

24. Appearances may be by party in person, his recognised agent, or Attorney-at-Law.

Any appearance, application, or act in or to any Court, required or authorised by law to be made or done by a party to an action or appeal in such Court, except only such appearances, applications, or acts as by any law for the time being in force only Attorneys-at-Law are authorised to make or do, and except when by any such law otherwise expressly provided, may be made or done by the party in person, or by his recognised agent, or by an Attorney-at-Law duly appointed by the party or such agent to act on behalf of such party:

Provided that any such appearance shall be made by the party in person, if the Court so directs. An Attorney-at-Law instructed by a registered Attorney for this purpose, represents the registered Attorney in Court.

25. Recognised agents.

The recognised agents of parties by whom such appearances and applications may be made or acts may be done are—

(a) the Attorney-General, on behalf of the State in respect of any Court; who is also authorised to depute his power of appointing a registered Attorney on behalf of the State in respect to any Court to any person by a written document to be signed by the Attorney-General, and to be filed in that Court;

(b) persons holding general powers of Attorney from parties not resident within the local limits of the jurisdiction of the Court within which limits the appearance or application is made or act done, authorising them to make such appearances and applications, and do such acts on behalf of such parties; which power, or a copy thereof certified by an Attorney-at-Law or notary, shall in each case be filed in the Court;

(c) persons carrying on trade or business for and in the names of parties not resident within the local limits of the jurisdiction of the Court within which limits the appearance or application is made or act done, in matters connected with such trade or business only, where no other agent is expressly authorised to make such appearances and applications and do such acts.

(d) .

[S 25(d) omitted by 4 of Law 20 of 1977.]

(e) .

[S 25(e) omitted by 4 of Law 20 of 1977.]

26. Processes served on the recognised agent, effectual.

(1) Processes served on the recognised agent of a party to an action or appeal shall be as effectual as if the same had been served on the party in person, unless the Court otherwise directs.

(2) The provisions of this Ordinance for the service of process on a party to an action shall apply to the service of process on his recognised agent.

27. Appointment of registered Attorney.

(1) The appointment of a registered Attorney to make any appearance or application, or do any act as aforesaid, shall be in writing signed by the client, and shall be filed in Court; and every such appointment shall contain an address at which service of any process which under the provisions of this Chapter may be served on a registered Attorney, instead of the party whom he represents, may be made.

(2) When so filed, it shall be in force until revoked with the leave of the Court and after notice to the registered Attorney by a writing signed by the client and filed in Court, or until the client dies, or until the registered Attorney dies, is removed, or suspended, or otherwise becomes incapable to act, or until all proceedings in the action are ended and judgment satisfied so far as regards the client.

(3) No counsel shall be required to present any document empowering him to act. The Attorney-General may appoint a registered Attorney to act especially in any particular case or to act generally on behalf of the State.

28. Death or incapacity of registered Attorney.

If any such registered Attorney as in the last preceding section is mentioned shall die, or be removed or suspended, or otherwise become incapable to act as aforesaid, at any time before judgment, no further proceeding shall be taken in the action against the party for whom he appeared until thirty days after notice to appoint another registered Attorney has been given to that party either personally or in such other manner as the Court directs.

29. Service on registered Attorney.

Any process served on the registered Attorney of any party or left at the office or ordinary residence of such registered Attorney, relative to an action or appeal, except where the same is for the personal appearance of the party, shall be presumed to be duly communicated and made known to the party whom the registered Attorney represents; and, unless the Court otherwise directs, shall be as effectual for all purposes in relation to the action or appeal as if the same had been given to, or served on, the party in person.

30. Agent to accept service.

Besides the recognised agents described in section 25, any person residing within the jurisdiction of the Court may be appointed an agent to accept service of process. Such appointment may be special or general, and shall be made by an instrument in writing signed by the principal, which shall contain an address at which such service may be made, and which, or, if the appointment be general, a duly attested copy thereof, shall be filed in Court.

No appointment under this section shall be of any force or effect for the purpose of enabling or authorising process to be served on an agent so appointed in any action to recover money due upon the mortgage of immovable property.

30A. Agent to accept service in action upon mortgage of immovable property.

(1) The mortgagor of any immovable property may make application for the registration of the address of any registered Attorney or any person for the service of process in any action upon the mortgage. The application shall be made substantially in the Form No. 11A in the First Schedule.

[S 30A(1) am by s 2 of Law 12 of 1973.]

(2) The address for service shall be registered in or in continuation of the folio in which is registered the mortgage of the immovable property.

(3) Where the applicant declares in his application that a previously registered address is cancelled, the Registrar shall make a new entry in the register and cancel the registration of the previous address.

(4) The fee for registration of the address for service or for a change of such address shall be fifty cents, with an addition of ten cents for each folio after the first in which the address is to be registered.

31. .

[S 31 rep by s 5 of Law 20 of 1977.]

32. .

[S 32 rep by s 5 of Law 20 of 1977.]

CHAPTER VI

OF THE SCOPE AND SUBJECT OF ACTION

33. Regular action how to be framed.

Every regular action shall, as far as Regular action, practicable, be so framed as to afford how to be ground for a final decision upon the subjects framed, in dispute, and so to prevent further litigation concerning them.

34. Every action shall include whole claim.

(1) Every action shall include the Every action whole of the claim which the plaintiff is shall include entitled to make in respect of the cause of claim-action; but a plaintiff may relinquish any portion of his claim in order to bring the action within the jurisdiction of any Court.

(2) If a plaintiff omits to sue in respect of, or intentionally relinquishes any portion of, his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. A person entitled to more than one remedy in respect of the same cause of action may sue for all or any of his remedies; but if he omits (except with the leave of the Court obtained before the hearing) to sue for any of such remedies, he shall not afterwards sue for the remedy so omitted.

(3) For the purpose of this section, an obligation and a collateral security for its performance shall be deemed to constitute but one cause of action.

Illustration

A lets a house to B at a yearly rent of Rs. 1000. The rent for the whole of the two years 1886 and 1887 is due and unpaid. A sues B only for the rent due for one of those years. A shall not afterwards sue B for the rent due for the other year.

35. Joinder of claims in actions for immovable property.

(1) In an action for the recovery of immovable property, or to obtain a declaration of title to immovable property, no other claim, or any cause of action, shall be made unless with the leave of the Court, except—

(a) claims in respect of mesne profits or arrears of rent in respect of the property claimed;

(b) damages for breach of any contract under which the property or any part thereof is held; or consequential on the trespass which constitutes the cause of action; and

(c) claims by a mortgagee to enforce any of his remedies under the mortgage.

Example.—A sues B to recover land upon the allegation that the land belongs to C, and that he. A, has bought it of C. A makes C a party defendant; but he cannot, without leave of the Court, join with this claim an alternative claim for damages against C for non-performance of his contract of sale.

In actions against executors.

(2) No claim by or against an executor, administrator, or heir, as such, shall in any action be joined with claims by or against him personally unless the last mentioned claims are alleged to arise with reference to the estate in respect of which the plaintiff or defendant sues or issued as executor, administrator, or heir, or are such as he was entitled to or liable for jointly with the deceased person whom be represents.

36. In other cases.

(1) Subject to the rules contained in the last section, the plaintiff may unite in the same action several causes of action against the same defendant or the same defendants jointly, and any plaintiffs having causes of action in which they are jointly interested against the same defendant or defendants may unite such causes of action in the same action.

Exception: Court may order separation.

But if it appears to the Court that an such causes of action cannot be conveniently tried or disposed of together, the Court may, at any time before the hearing, of its own motion or on the application of any defendant, in both cases either in the presence of, or upon notice to, the plaintiff, or at any subsequent stage of the action if the parties agree, order separate trials of any such causes of action to be had, or make such other order as may be necessary or expedient for the separate disposal thereof.

(2) When causes of action are united, the jurisdiction of the Court as regards the action shall depend on the amount or value of the aggregate subject-matter at the date of instituting the action, whether or not an order has been made under the second paragraph of subsection (1).

37. Application by defendant in such cases.

Any defendant alleging that the plaintiff has united in the same action several causes of action, which cannot be conveniently disposed of in one action, may at any time before the hearing apply to the Court for an order confining the action to such of the causes of action as may be conveniently disposed of in one action.

38. Order of Court thereon.

(1) If, on the hearing of such application, it appears to the Court that the causes of action are such as cannot all be conveniently disposed of in one action, the Court may order any of such causes of action to be excluded, and may direct the plaint to be amended accordingly, and may make such order as to costs as may be just.

(2) Every amendment made under this section shall be attested by the signature of the Judge.

CHAPTER VII

OF THE MODE OF INSTITUTION OF ACTION

39. Regular action to commence by plaint.

Every action of regular procedure shall be instituted by presenting a duly stamped written plaint to the Court, or to such officer as the Court shall appoint in that behalf. The plaint shall be accompanied by such number of summons in Form No, 16 in the First Schedule as there are defendants, and a precept in Form No. 17 of the said Schedule.

[S 39 subs by s 3 of Act 79 of 1988.]

40. Requisites of plaint.

The plaint shall be distinctly written upon good and suitable paper, and shall plaint contain the following particulars—

(a) the name of the Court and date of filing the plaint;

(b) the name, description, and place of residence of the plaintiff;

(c) the name, description, and the place of residence of the defendant so far as the same can be ascertained;

(d) a plain and concise statement of the circumstances constituting each cause of action, and where and when it arose. 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;

(e) a demand of the relief which the plaintiff claims; and

(f) if the plaintiff has allowed a set-off or relinquished a portion of his claim, the amount so allowed or relinquished,

If the plaintiff seeks the recovery of money, the plaint must state the precise amount, so far as the case admits. In an action for a specific chattel, or to establish, recover, or enforce any right, status, or privilege, or for mesne profits, or for the amount which Will be found due to the plaintiff on taking unsettled accounts between him and the defendant, the plaint need only state approximately the value of the chattel, right, status, or privilege, or the amount sued for.

[S 40 am by s 7 of Law 20 of 1977.]

41. Land sued for to be described by metes and bounds or sketch.

When the claim made in the action is for some specific portion of land, or for some snare or interest in a specific portion of land, then the portion of land must be described in the plaint so far as possible by reference to physical metes and bounds, or by reference to a sufficient sketch, map, or plan to be appended to the plaint, and not by name only.

42. Plaintiff suing in a representative character must show that the character has accrued to him.

When the plaintiff sues in a representative character, the plaint should show, not only that he has an actual existing interest in the subject matter, but that he has taken the steps necessary to enable him to institute an action concerning it.

Illustrations

(a) A sues as B's executor. The plaint must state that A has proved B's will.

(b) A sues as C's administrator. The plaint must state that A has taken out administration to C's estate.

43. Plaint must show defendant's interest and liability to be sued.

The plaint must show that the defendant is or claims to be interested in the subject matter, and that he is liable to be called upon to answer the plaintiffs demand.

44. Exemption from bar from lapse of time to be shown.

If the cause of action arose beyond the period ordinarily allowed by any law for instituting the action, the plaint must show the ground upon which exemption from such law is claimed.

45. Jurisdiction of Court to be averred.

Every plaint shall contain a statement of facts setting out the jurisdiction of the Court to try arid determine the claim in respect of which the action is brought.

46. Subscription of plaint.

(1) Every plaint presented by a registered Attorney on behalf of a plaintiff shall be subscribed by such registered Attorney. In every other case in which a plaint is presented, it shall be subscribed by the plaintiff; and his signature shall be verified by the signature of some officer authorised by the Court in that behalf.

Court may refuse to entertain plaint.

(2) Before the plaint (whether presented by the plaintiff or by a registered Attorney in his behalf) is allowed to be filed, the Court may, if in its discretion it shall think fit, refuse to entertain the same for any of the following reasons, namely—

(a) if it does not state correctly, and without prolixity, the several particulars hereinbefore required to be specified therein;

(b) if it contains any particulars other than those so required;

(c) if it is not subscribed, or subscribed and verified, as the case may be, as hereinbefore required;

(d) if it does not disclose a cause of action;

(e) if it is not framed in accordance with section 33;

(f) if it is wrongly framed by reason of non-joinder or misjoinder of parties, or because the plaintiff has joined causes of action which ought not to be joined in the same action;

and may return the same for amendment then and there, or within such time as may be fixed by the Court, upon such terms as to the payment of costs occasioned by the amendment as the Court thinks fit;

Provided that no amendment shall be allowed which would have the effect of converting an action of one character into an action of another and inconsistent character;

And may reject.

And provided further, that in each of the following cases, namely—

(g) Where the relief sought is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;

(h) Where the relief sought is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff on being required by the Court to supply the requisite stamps within a time to be fixed by the Court fails to do so;

(i) When the action appears from the statement in the plaint to be barred by any positive rule of law;

(j) When the plaint having been returned for amendment within a time fixed by the Court is not amended within such time;

[S 46(2) second proviso para (j) am by s 4(1) of Act 79 of 1988.]

(k) When the plaint is not accompanied by such number of summons as there are defendants,

[S 46(2) second proviso para (k) ins by s 4(2) of Act 79 of 1988.]

the plaint shall be rejected; but such rejection shall not of its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action.

47. Where plaint presented to wrong Court.

In every case where an action has been instituted in a Court not having jurisdiction by reason of the amount or value involved, or by reason of the conditions made necessary to the institution of an action in any particular Court by section 9 not being present, the plaint shall be returned to be presented to the proper Court.

48. Order on rejection of plaint.

Every order returning or rejecting a plaint shall specify the date when the plaint was presented and so returned or rejected, the name of the person by whom it was presented and whether such person was plaintiff or registered Attorney, and the fault or defect constituting the ground of return or rejection; and every such order shall be in writing signed by the Judge, and filed of record.

49. Memorandum of documents to be endorsed on plaint.

(1) The plaintiff shall endorse on the plaint, or annex thereto, a memorandum of the documents, if any, which he has produced along with it; and if the plaint is admitted, shall present as many copies on unstamped paper of the plaint as there are defendants, translated into the language of each defendant whose language is not the language of the Court; unless the Court, by reason of the length of the plaint or the number of the defendants or for any other sufficient reason, permits him to present a like number of concise statements of the nature of the claim made, or of the relief or remedy required in the action, in which case he shall present such statements.

(2) If the plaintiff sues or the defendant or any of the defendants is sued in a representative capacity, such statement shall show in what capacity such plaintiff or defendant sues or is sued; and the plaintiff may by leave of the Court amend such statements so as to make them correspond with the plaint.

Such memorandum and copies or statements shall be examined by the Registrar of the Court and signed by him if he finds them correct.

[S 49 subs by s 8 of Law 20 of 1977.]

50. Plaintiff to produce with plaint document sued on.

If a plaintiff sues upon a document in his possession or power, he shall produce it in Court when the plaint is presented, and document sued shall at the same time deliver the document on or a copy thereof to be filed with the plaint.

51. To annex list of other documents.

If he relies on any other documents (whether in his possession or power or not) as evidence in support of his claim, he shall enter such documents in a list to be added or annexed to the plaint.

52. And to state where document not in his possession is.

In the case of any such document not being in his possession or power, he shall, if possible, state in whose possession or power it is.

53. Action on lost negotiable instrument.

In the case of any action founded upon a bill of exchange, promissory note, cheque, or any negotiable instrument, if it be proved that the instrument is lost, and if an indemnity be given by the plaintiff, to the satisfaction of the Court, against the claims of any other person upon such instrument, the Court may make such decree as it would have made if the plaintiff had produced the instrument in Court when the plaint was presented, and had at the same time delivered a copy of the instrument to be filed with the plaint.

54. Document not produced with plaint inadmissible afterwards without leave.

A document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint, and which is not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the action.

[S 54(1) re-numbered as s 54 by s 9(2) of Law 20 of 1977.]

(2) .

[S 54(2) rep by s 9(1) of Law 20 of 1977.]

CHAPTER VIII

OF THE ISSUE AND SERVICE OF SUMMONS

55. Summons.

(1) Upon the plaint being filed and the copies of concise statements required by section 49 presented, the Court shall order summons in the form No. 16 in the First Schedule to issue, signed by the Registrar of the Court, requiring the defendant to answer the plaint on or before a day to be specified in the summons, such day, being a day not later than three months from the date of the institution of the action in Court.

[S 55(1) subs by s 2 of Act 14 of 1997.]

(2) —

(a) Every party to an action, not appearing by a registered Attorney, shall on or before the date specified in the summons deliver to the Registrar a memorandum substantially in the form No. 16A in the First Schedule setting out an address (hereinafter referred to as the "registered address”) for the service on him of the notice under section 80 and any other legal document required to be served on a party under the provisions of this Ordinance unless otherwise provided. Every party shall with such memorandum tender to the Registrar stamps to the value required to cover cost of service of such notice by registered post.

(b) Where a party appears by a registered Attorney the address of the registered Attorney contained in his appointment shall be deemed to be the registered address of such party; and such registered Attorney shall, on or before the date specified in the summons, tender to the Registrar stamps to the value required to cover cost of service by registered post, of the notice under section 80.

(c) The dispatch by registered post to the registered address of a party of the notice under section 80, and of any other legal document required to be served on him shall be deemed to be sufficient service.

(d) The Registrar shall keep and maintain a list of the registered addresses furnished to him under this subsection, which list shall be filed as part of the record of the case.

[S 55(2) subs by s 10 of Law 20 of 1977.]

56. .

[S 56 rep by s 11 of Law 20 of 1977.]

57. .

[S 57 rep by s 11 of Law 20 of 1977.]

58. .

[S 58 rep by s 11 of Law 20 of 1977.]

SERVICE

59. Service of summons to be by registered post.

(1) Summons shall ordinarily be served by registered post.

(2) —

(a) In the case of a corporation, or incorporate body summons may be delivered to the registered office or if there is no registered office, the principal place of business of such corporation or body.

(b) Where the defendant is a public officer the Court may send summons by registered post to the head of the department in which the defendant is employed, and it shall be the duty of such head of department to cause the summons to be served personally on the defendant.

(c) Where the Court is prima facie satisfied that the defendant is in the employment of another person, the Court may send the summons to the employer at his place of business or, where the employee is a company or corporation, to any secretary, manager or other like officer of the company or corporation, and it shall be the duty of such employer or officer, as the case may be, to cause the summons to be served personally on the defendant.

(3) In every case in which the summons are sent by registered post to a person other than the defendant, the Court shall also forward a duplicate of such summons, and it shall be the duty of the head of department, employer or officer, as the case may be, to return such duplicate to the Court forthwith with an acknowledgment of the summons by the defendant or with a statement of the service endorsed thereon and signed by the person effecting the service and countersigned by the person to whom the summons had been forwarded by Court if he has not himself effected the service.

(4) Where a defendant appears in Court in person on summons being served on him in the manner referred to above, he shall produce his national identity card or a valid passport, as the case may be, and it shall be the duty of the Judge to satisfy himself that the person who has appeared before him and the person on whom summons have been served in the manner aforesaid, is one and the same person.

(5) Where a defendant is represented by a registered Attorney, the Attorney shall in the proxy tendered on behalf of the defendant, state the number of the identity card or the passport, as the case may be, of the defendant and shall also make an endorsement thereon certifying the identity of such defendant, where a proxy is tendered on behalf of a company or a body corporate it shall be tendered under the seal of such company or the body corporate, as the case may be.

(6) In this section—

"head of department”—

(a) when used with reference to a member of any unit of the Sri Lanka Army, Navy or Air Force, means the Commanding Officer of that unit;

(b) when used with reference to a person employed in a local authority, if the local authority is a Municipal Council, means the Municipal Commissioner of that Council; if the local authority is an Urban Council or a Preadeshiya Sabha, means the Chairman of that Council or Sabha;

(c) when used with reference to any other public officer means the head of the department of Government in which such person is employed; and

"national identity card” when used with reference to any person, means the identity card issued to such person under the Registration of Persons Act, No. 32 of 1968.

[S 59 subs by s 3 of Act 14 of 1997.]

60. Personal service.

(1) The Court shall, where it is reported that summons could not be effected by registered post or where the summons having been served and the defendant fails to appear, direct that such summons be served personally on the defendant by delivering or tendering to him the said summons through the Fiscal or the Grama Niladhari within whose division the defendant resides or in any case where the plaintiff is a lending institution within the meaning of the Debt Recovery (Special Provisions) Act, No. 2 of 1990, through the Fiscal or other officer authorised by Court, accompanied by a precept in form No. 17 of the First Schedule. In the case of a corporation summons may be served personally by delivering or tendering it to the secretary or like officer or a director or the person in charge of the principal place of business of such corporation.

(2) If the service referred to in the preceding provisions of this section cannot by the exercise of due diligence be effected, the Fiscal or Grama Niladhari shall affix the summons to some conspicuous part of the house in which the defendant ordinarily resides or in the case of a corporation or unincorporated body, to the usual place of business or office of such corporation or such body and in every such case the summon shall be deemed to have been duly served on the defendant.

[S 60 subs by s 3 of Act 14 of 1997.]

61. Proof of service.

When a summons is served by registered post, the advice of delivery issued under the Inland Post Rules, and the endorsement of service, if any, and where the summons is served in any other manner, and affidavit of such service shall be sufficient evidence of the service of the summons and of the date of such service, and shall be admissible in evidence and the statements contained therein shall be deemed to be correct unless and until the contrary is proved.

[S 61 subs by s 3 of Act 14 of 1997.]

62. Substituted service.

Whenever service is substituted by order of the Court, the Court shall fix a day, not being a day later than three months from the day on which the defendant was earlier required to answer the plaint, on or before which the defendant shall file his answer and comply with the other requirements of section 55.

[S 62 subs by s 12 of Law 20 of 1977; am by s 4 of Act 14 of 1997.]

63. When more defendants than one, service on each.

When there are more defendants when more than one, service of the summons shall be defendants made on each defendant.

64. Agents to accept service; partners and manager.

When a defendant has an appointed under section 30 empowered to accept service, service of summons on such agent shall be sufficient. And in the case of an action against partners relative to a partnership transaction, or to an actionable wrong in respect of which relief is claimable from the partners, as a firm, each partner is an agent so empowered of each other partner, as is also the person (if any) not being a partner, who has the management of the business of the partnership at the principal place of such business within the local limits of the Court's ordinary jurisdiction.

Nothing in the preceding provisions of this section shall be deemed to authorise summons in an action to recover moneys due on a mortgage of immovable property to be served on any agent appointed under section 30.

64A. Service on agent in mortgage action.

Where the mortgagor has registered the address of an agent under section 30A, service of summons may be made on such agent and shall be sufficient.

65. When defendant out of jurisdiction has manager within it.

In an action relating to any business or work against a person who does not reside within the local limits of the jurisdiction of the Court from which the summons issued, service on any manager or agent who at the time of the service personally carries on such business or work for such person within such limits shall be deemed good service; and for the purpose of this section the master of a ship is the agent of his owner or charterer.

66. Service on agent in charge of immovable property.

In an action to obtain relief respecting or compensation for wrong to immovable property, if the service cannot be made on the defendant in person, and the defendant has no agent empowered to accept service, it may be made on any agent of the defendant in charge of the property.

67. Misdescription not to vitiate summons.

No misnomer or misdescription of any person or place in any such summons, order, or process shall vitiate the same, provided that the person or place be therein described as he or it is commonly known, and provided that such misnomer or misdescription be not such as to mislead the party served therewith.

68. Service on defendant in jail.

If the defendant be in jail, the summons shall be delivered by the Fiscal to the officer in charge of the jail in which the defendant is confined, and such officer shall cause the summons to be served upon the defendant.

The summons shall be returned through the Fiscal to the Court from which it is issued, with a statement of the service endorsed thereon, and signed by the officer in charge of the jail.

69. Service out of Sri Lanka. Application for, how made.

Service of a summons out of Sri Lanka may be allowed by the Court in all cases in which the Court has jurisdiction. Every application for an order for leave to serve such summons on a defendant out of Sri Lanka shall be by motion and shall be supported by evidence (by affidavit or otherwise) showing in what place or country such defendant is or may probably be found, and the grounds on which the application is made.

70. Order granting leave for service of summons out of Sri Lanka.

Every order granting leave to effect service of summons out of Sri Lanka shall direct the mode by which such service shall be effected, and also direct that the defendant shall on or before the date specified in the summons, such date being a date not later than six months from the date of the order for service outside Sri Lanka, file his answer and comply with the other requirements of section 55.

[S 70 subs by s 6 of Act 79 of 1988.]

71. Form of summons.

A summons under sections 69 and 70 shall be in the
form No. 18 in the First Schedule.

CHAPTER IX

OF FILING ANSWER

[Heading subs by s 14 of Law 20 of 1977.]

72. Judgment against defendant, if he admits claim of the plaintiff.

If the defendant admits the claim of the plaintiff, the Court shall give judgment against the defendant according to the admission so made. Such admission shall be in writing, signed by the defendant and his signature attested by an Attorney-at-Law.

[S 72 subs by s 15 of Law 20 of 1977.]

73. Answer to be in writing.

If the defendant does not admit the plaintiffs claim, he shall himself, or his registered Attorney shall on his behalf, deliver to the Court a duly stamped written answer.

[S 73 subs by s 15 of Law 20 of 1977.]

74. .

[S 74 rep by s 16 of Law 20 of 1977.]

75. Requisites of answer.

Every such answer shall be distinctly written upon good and suitable paper, shall be duly stamped, shall be subscribed by the defendant or his duly constituted representative as in the case of a plaint is provided for the plaintiffs subscription, or if he is represented by a registered Attorney, by such registered Attorney, and shall contain the following particulars—

(a) the name of the Court, the number of the case, and the date of filing the answer;

(b) the name of the plaintiff;

(c) the name, description, and residence of the defendant;

(d) a statement admitting or denying the several averments of the plaint, and setting out in detail plainly and concisely the matters of fact and law, and the circumstances of the case upon which the defendant means to rely for his defence; this statement shall be drawn in duly numbered paragraphs, referring by number, where necessary, to the paragraphs of the plaint;

(e) when the defendant sets up a claim in reconvention the answer must contain a plain and concise statement of the facts constituting the ground of such claim which the defendant makes in reconvention. A claim in reconvention duly set up in the answer shall have the same effect as a plaint in a cross action so as to enable the Court to pronounce a final judgment in the same action both on the original and on the cross claim; but it shall not affect the lien upon the amount decreed of any registered Attorney in respect of the costs payable to him under the decree.

[S 75 am by s 17 of Law 20 of 1977.]

76. Jurisdiction of Court to be specially traversed.

If the defendant intends to dispute the averment in the plaint as to the jurisdiction of the Court, he must do so by a separate and distinct plea, expressly traversing such averment.

77. Rejection and amendment of answer.

If any answer is substantially defective in any of the particulars hereinbefore defined, or is argumentative or prolix, or contains matter irrelevant to the action, the Court may, by an order to be endorsed thereon, reject the same or return it to the party by whom it was made, for amendment within a period not exceeding one month from the date on which the answer was so returned, and the Court may impose such terms as to costs or otherwise as it thinks fit.

If the answer is rejected or left un-amended as ordered, the defendant shall be regarded as having failed to file answer.

The order so endorsed shall specify the ground of the rejection.

[S 77 am by s 7 of Act 79 of 1988.]

78. Copy of answer to be delivered to plaintiff or his registered Attorney.

A copy of the answer shall be served on the plaintiff, or each of the plaintiffs, if more than one, or his or their registered Attorney.

[S 78 subs by s 18 of Law 20 of 1977.]

CHAPTER X

OF THE REPLICATION AND FURTHER PLEADINGS

79. When replication may be allowed.

Except in the case of a claim by a defendant in reconvention, no pleading after answer shall be tiled except by order of Court on special motion to be made after due notice to the other side, and before the day appointed for the hearing of the action, upon such terms as to costs and the postponement of the hearing of the action as the Court shall think fit. Such order shall not be made (except in the case of a claim in reconvention on the part of the defendant) unless the Court is satisfied on such motion that the real issues between the parties cannot be conveniently raised without such further pleading. All pleadings after answer shall be subject to the rules prescribed by section 75 relative to the form and substance of the answer, so far as the same can be made applicable, and copies of such pleadings shall be served on the opposite party or his registered Attorney.

[S 79 subs by s 19 of Law 20 of 1977.]

CHAPTER XI

OF FIXING DAY OF TRIAL

80. Date of Trial.

On the date fixed for the filing of the answer of the defendant or where replication is permitted, on the date fixed for the filing of such replication, and whether the same is filed or not, the Court shall appoint a date for the trial of the action, and shall give notice thereof, in writing by registered post to all parties who have furnished a registered address and tendered the cost of service of such notice, as provided by subsection (2) of section 55.

[S 80 subs by s 8 of Act 79 of 1988.]

81. A reasonable number of cases to be fixed for each day.

The Court shall, in fixing the day of hearing, be careful not to appoint more cases for one day than there is a probability of the Court getting through on that day.

82. Postponement.

When any case is in its turn called on for hearing upon the day appointed there for, the Court may, for sufficient cause to be specified in its written order, direct that the hearing be postponed to a day which shall be fixed in the order, upon such terms as to costs or otherwise as the Court shall think fit:

Provided that the Court may in its discretion take and deal with a case out of its order in the cause list on any day for good reason to be adjudicated upon and recorded by the Court before entering upon the case.

83. Undisposed off cases to be placed at the head of the roll.

(1) The cases in any day's cause list not disposed of on that day, by reason of want of time, Will be placed at the head of the next Court day's cause list, unless the Judge directs otherwise.

(2) As soon as the cause list for any day is prepared, legibly-written copies of it in the language of the Court and the language or languages of the parties shall be placed in some fit and conspicuous place outside the Court-house, so that the suitors and all others interested may be enabled readily to be informed of the contents of the same.

[S 83(2) subs by s 21 of Law 20 of 1977.]

CHAPTER XII

OF THE CONSEQUENCES AND CURE (WHEN PERMISSIBLE) OF DEFAULT IN PLEADING OR APPEARING

[Heading subs by s 22 of Law 20 of 1977.]

84. Default of defendant.

If the defendant fails to file his answer on or before the day fixed for the filing of the answer, or on or before the day fixed for the subsequent filing of the answer or having filed his answer, if he fails to appear on the day fixed (or the hearing of the action, and if the Court is satisfied that the defendant has been duly served with summons, or has received due notice of the day fixed for the subsequent filing of the answer, or of the day fixed for the hearing of the action, as the case may be, and if, on the occasion of such default of the defendant, the plaintiff appears, then the Court shall proceed to hear the case ex parte forthwith, or on such other day as the Court may fix.

[S 84 subs by s 23 of Law 20 of 1977.]

85. Procedure in ex parte Trial.

(1) The plaintiff may place evidence before the Court in support of his claim by affidavit, or by oral testimony and move for judgment, and the Court, if satisfied that the plaintiff is entitled to the relief claimed by him, either in its entirety or subject to modification, may enter such judgment in favour of the plaintiff as to it shall seem proper, and enter decree accordingly.

(2) Where the Court is of opinion that the entirety of the relief claimed by the plaintiff cannot be granted, the Court shall hear the plaintiff before modifying the relief claimed.

(3) Where there are several defendants of whom one or more file answer and another or others of whom fail to file answer, the plaintiff may move for judgment against such of the defendants as may be in default without prejudice to his right to proceed with the action against such of the defendants as may have filed answer. The provisions of this subsection shall apply notwithstanding that the defendants are jointly liable upon a bill of exchange, promissory note or cheque.

(4) The Court shall cause a copy of the decree entered under this section to be served on the defendant in the manner prescribed for the service of summons. Such copy of the decree shall bear an endorsement that any application to set aside the decree under subsection (2) of section 86 shall be made to Court within fourteen days of such service.

[S 85 subs by s 23 of Law 20 of 1977.]

86. If defendant excuses his default, any order or judgment to be set aside.

(1) .

[S 86(1) rep by s 3(i) of Act 53 of 1980.]

(2) Where, within fourteen days of the service of the decree entered against him for default, the defendant with notice to the plaintiff makes application to and thereafter satisfies Court, that he had reasonable grounds for such default, the Court shall set aside the judgment and decree and permit the defendant to proceed with his defence as from the stage of default upon such terms as to costs or otherwise as to the Court shall appear proper.

[S 86(2) subs by s 23 of Law 20 of 1977.]

(2A) At any time prior to the entering of judgment against a defendant for default, the Court may, if the plaintiff consents, but not otherwise, set aside any order made on the basis of the default of the defendant and permit him to proceed with his defence as from the stage of default upon such terms as to costs or otherwise as to the Court shall appear fit.

[S 86(2A) ins by s 3(ii) of Act 53 of 1980.]

(3) Every application under this section shall be made by petition supported by affidavit.

[S 86(3) subs by s 23 of Law 20 of 1977.]

87. Non-appearance of plaintiff.

(1) Where the plaintiff or where both the plaintiff and the defendant make trial, the Court shall dismiss the plaintiffs action.

(2) Where an action has been dismissed under this section, the plaintiff shall be precluded from bringing a fresh action in respect of the same cause of action.

(3) The plaintiff may apply within a reasonable time from the date of dismissal, by way of petition supported by affidavit, to have the dismissal set aside, and if on the hearing of such application, of which the defendant shall be given notice, the Court is satisfied that there were reasonable grounds for the non-appearance of the plaintiff, the Court shall make order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the action as from the stage at which the dismissal for default was made.

[S 87 subs by s 23 of Law 20 of 1977.]

88. No appeal against judgment for default but order setting aside or refusing to set aside judgment appealable.

(1) No appeal shall lie against any judgment entered upon default.

[S 88(1) subs by s 23 of Law 20 of 1977.]

(2) The order setting aside or refusing to set aside the judgment entered upon default shall be accompanied by a judgment adjudicating upon the facts and specifying the grounds upon which it is made, and shall be liable to an appeal to the Court of Appeal.

[S 88(2) subs by s 23 of Law 20 of 1977.]

(3) The provisions of sections 761 and 763 shall, mutatis mutandis, apply to and in relation to the execution of a decree entered upon default, where an order refusing to set aside such decree has been made.

[S 88(3) ins by s 4 of Act 53 of 1980.]

89. Where two or more defendants severally liable.

In the case of an action against two or more defendants alleged to be severally liable, where a summons is served upon any of them, the plaintiff may proceed against the person or persons served as if no other defendant were named in the summons. Where it is served upon all of them, the plaintiff may take judgment against one or more of them, where he would be entitled to judgment if the action was against him or them alone. Where judgment is so taken the plaintiff may proceed in the same action against the other defendants.

90. One of many defendants appearing, no decree for default need be passed against others.

In the case of an action where there are more defendants than one, the Court shall not be obliged to pass a decree for default against a defendant for failing to appear at a stage of the action, provided that one defendant at least appears at that stage against whom the action must proceed,

CHAPTER XIII

OF MOTIONS

91. Motions.

Every application made to the Court in the course of an action, incidental thereto, and not a step in the regular procedure, shall be made by motion by the applicant in person or his counsel or registered Attorney, and a memorandum in writing of such motion shall be at the same time delivered to the Court.

[S 91(1) re-numbered as s 91 by s 24(2) of Law 20 of 1977.]

(2) .

[S 91(2) rep by s 24(1) of Law 20 of 1977.]

91A. Postponements, adjournments and extensions of time.

(1) Where a day is fixed or time appointed for doing any act or taking any proceeding by a party to the action, the Court may, from time to time, upon the motion of such party and, if sufficient cause is shown, fix another day or enlarge or abridge the time appointed, upon such terms, if any, as to it may seem proper.

(2) The day may be re-fixed or the time enlarged although the application for the same is not made until after the expiration of the day or time fixed or appointed.

(3) The Court may, for sufficient cause, either on the application of the parties or of its own motion, advance, postpone or adjourn the trial to any other date upon such terms as to costs or otherwise as to it shall seem proper.

(4) Where a date is fixed on or before which an act has to be done by a party to the action or a return has to be made to a commission issued by the Court, the case shall be called in open Court on such date for the purpose of making an appropriate order in connection therewith or relating thereto.

[S 91A ins by s 25 of Law 20 of 1977.]

CHAPTER XIV

OF THE JOURNAL

92. Journal.

With the institution of the action the Court shall commence a journal entitled as of the action, in which shall be minuted, as they occur, all the events in the course of the action, i.e., the original application, and every subsequent step, proceeding, and order; each minute shall be signed and dated by the Judge, and the journal so kept shall be the principal record of the action.

CHAPTER XV

OF AMENDMENT

93. Amendments of pleadings.

(1) Upon application made to it before the day first fixed for trial of the action, in the presence of, or after reasonable notice to all the parties to the action, the Court shall have full power of amending in its discretion, all pleadings in the action, by way of addition, or alteration, or of omission.

(2) On or after the day first fixed for the trial of the action and before final judgment, no application for the amendment of any pleadings shall be allowed unless the Court is satisfied, for reasons to be recorded by the Court, that grave and irremediable injustice Will be caused if such amendment is not permitted, and on no other ground, and that the party so applying has not been guilty of laches.

(3) Any application for amendment of pleadings which may be allowed by the Court under subsection (1) or (2) shall be upon such terms as to costs and postponement or otherwise as the Court may think fit.

(4) The additions or alterations or omissions shall be clearly made on the face of the pleading affected by the Order; or if this cannot conveniently be done, a fair copy of the pleading as altered shall, be appended in the record of the action to the pleading amended. Every such addition or alteration or omission shall be signed by the Judge.

[S 93 subs by s 3 of Act 9 of 1991.]

CHAPTER XVI

OF DISCOVERY, INSPECTION, PRODUCTION, IMPOUNDING, AND RETURN OF DOCUMENTS

94. Interrogatories.

(1) Any party may at any time before hearing, by leave of the Court to be obtained on motion ex parte, deliver through the Court interrogatories in writing for the examination of the opposite party, or, where there are more opposite parties than one, any one or more of such parties, with a note at the foot thereof stating which of such interrogatories each of such persons is required to answer:

Provided that no party shall deliver more than one set of interrogatories to the same person without the permission of the Court, and that no defendant shall deliver interrogatories for the examination of the plaintiff unless such defendant has previously tendered his answer, and such answer has been received and placed on the record.

(2) For the purposes of this Chapter, "opposite party”, means a party between whom and the party interrogating an issue has been raised.

95. Service of interrogatories.

Interrogatories delivered under the last section shall be served on the registered Attorney (if any) of the party interrogated, or in the manner hereinbefore provided for the service of summons, and the provisions herein contained with regard to service of summons shall, in the latter case, apply, so far as may be practicable.

96. Cost of unreasonable interrogatories to be borne by party in fault.

The Court, in adjusting the costs of the action, shall at the instance of any party, inquire, or cause inquiry to be made, into the propriety of delivering such interrogatories; and if it thinks that such interrogatories have been delivered unreasonably, vexatiously, or at improper length, the costs occasioned by the said interrogatories, and the answers thereto, shall be borne by the party in fault.

97. Interrogatories to company.

If any party to an action is a body corporate or a company, whether incorporated or not, or any other body of persons empowered by law to sue or be sued, whether in its own name or in the name of any officer or other person, any opposite party may apply to the Court for an order allowing him to deliver interrogatories to any member or officer of such corporation, company, or body, and an order may be made accordingly.

98. When party may refuse to answer.

Any party called upon to answer interrogatories, whether by himself or by any such member or officer, may refuse to answer any interrogatory on the ground that it is scandalous or irrelevant, or is not put bonafide for the purposes of the action, or that the answer Will tend to criminate himself, or that the matter inquired after is not sufficiently material at that stage of the action, or on any other like ground.

99. To be answered by affidavit.

Interrogatories shall be answered by affidavit to be filed in Court within ten days from the service thereof, or within such further time as the Court may allow.

100. Application for further answer.

If any person interrogated omits or refuses to answer or answers insufficiently any interrogatory, the party interrogating may apply to the Court for an order requiring him to answer or to answer further, as the case may be. And an order may be made requiring him to answer or to answer further, either by an affidavit or by viva voce examination, as the Court may direct:

Provided that the Court shall not require an answer to an interrogatory which in its opinion need not have been answered under section 98.

101. Notice to admit genuineness of documents.

(1) Either party may, by a notice issued by order of Court, to be obtained on motion ex parte within a reasonable time not less than ten days before the hearing, require the other party to admit (saving all just exceptions to the admissibility of such document in evidence) the genuineness of any document material to the action.

(2) The admission shall also be made in writing, signed by the other party or his registered Attorney, and filed in Court.

(3) If such notice be not given, no costs of proving such document shall be allowed, unless the Court otherwise orders.

(4) If such notice is not complied with within four days after its being served, and the Court thinks it reasonable that the admission should have been made, the party refusing shall bear the expense of proving such document, whatever may be the result of the action.

102. Order for discovery of documents.

(1) The Court may, at any time during the pendency therein of any action, 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.

(2) Every affidavit made under this section shall specify which, if any, of the documents therein mentioned the declarant objects to produce, together with the grounds of such objection.

103. Order for order production of documents.

The Court may, at any time during the pendency therein of any action, the production by any party thereto or such of the documents in his possession or power relating to any matter in question in such action or proceeding as the Court thinks right; and the Court may deal with such documents when produced in such manner as appears just.

103A. State required to make discovery or give inspection of documents under certain circumstances.

(1) In any action to which the State is a party, the State may also be required to make discovery or give inspection of documents.

(2) The provisions of subsection (1) shall not prejudice the right of the State to withhold any document on the ground that in the opinion of the Minister in charge of the subject to which the document relates, the public interest would suffer by such disclosure.

[S 103A ins by s 26 of Law 20 of 1977.]

104. Notice to produce documents for inspection.

(1) Any party to an action may, at any time before or at the hearing thereof, by motion ex parte, obtain an order of Court for notice to issue to any other party in whose pleadings or affidavits reference is made to any document, to produce such document for the inspection of the party giving such notice, or of his registered Attorney, and to permit such party or registered Attorney to take copies thereof.

(2) No party failing to comply with such notice shall afterwards be at liberty to put any such document in evidence on his behalf in such action, unless he satisfies the Court that such document relates only to his own title, or that he had some other and sufficient cause for not complying with such notice.

105. Time and place of such production to be specified by party receiving notice.

The party to whom such notice is given shall, within ten days from the receipt thereof, deliver through the Court to the party giving the same a notice stating a time within three days from such delivery at which the documents, or such of them as he does not object to produce, may be inspected at his registered Attorney's office or some other convenient place, and stating which, if any, of the documents he objects to produce, and on what grounds.

106. Otherwise, order for inspection to be made by Court.

If any party served with notice under section 104 omits to give notice under section 105 of the time for inspection, or objects to give inspection, or names an inconvenient place for inspection, the party desiring it may apply to the Court for an order of inspection.

107. Application for order to be supported by affidavit.

Except in the case of documents referred to in any pleading or affidavit of the party against whom the application is made, or disclosed in his affidavit of documents, such application shall be founded upon an affidavit showing—

(a) of what documents inspection is sought,

(b) that the party applying is entitled to inspect them, and

(c) that they are in the possession or power of the party against whom the application is made.

108. Court may reserve question as to discovery or inspection.

If the party from whom discovery of any kind or inspection is sought objects to the same or any part thereof, and if the Court is satisfied that the right of such discovery or inspection depends on the determination of any issue or question in dispute in the action, or that for any other reason it is desirable that any such issue or question should be determined before deciding upon the right to the discovery or inspection, the Court may order that the issue or question be determined first, and reserve the question as to the discovery or inspection.

109. Consequence of not complying with order under this Chapter.

(1) If any party fails to comply with any order under this Chapter to answer interrogatories, or for discovery, production, or inspection, which has been duly served, he shall, if a plaintiff, be liable to have his action dismissed for want of prosecution, and if a defendant, to have his defence, if any, struck out, and to be placed in the same position as if he had not appeared and answered. And the party interrogating or seeking discovery, production, or inspection may apply to the Court for an order to this effect, and the Court may make such order accordingly.

(2) Any party failing to comply with any order under this Chapter to answer interrogatories, or for discovery, production, or inspection which has been served personally upon him, shall also be deemed guilty of the offence of contempt of Court.

110. Court may inspect records of other Courts.

(1) The Court may of its own accord, or in its discretion upon the application of any of the parties to an action, send for, either from its own records or from any other Court, the record of any ‘other action or proceeding, and inspect the same.

(2) Every application made under this section shall (unless the Court otherwise directs) be supported by an affidavit of the applicant or his registered Attorney, showing how the record is material to the action in which the application is made, and that the applicant cannot, without unreasonable delay or expense, obtain a duly authenticated copy of the record or of such portion thereof as the applicant requires, or that the production of the original is necessary for the purposes of justice.

(3) Nothing in this section shall be deemed to enable the Court to use in evidence any document which by the law of evidence in force in Sri Lanka would be inadmissible in the action.

111. Parties to be ready with all documents at Trial.

The parties or their registered Attorneys shall bring with them and have in readiness at the hearing of the action, to be produced when called for by the Court, all the documentary evidence of every description in their possession or power, on which they intend to rely, and which has not already been filed in Court, and all documents which the Court at any time before such hearing has ordered to be produced.

112. Document called for and not produced shall not be received afterwards.

No documentary evidence in the possession or power of any party which should have been, but has not been, produced in accordance with the requirements of section 111, shall be received at any subsequent stage of the proceedings, unless good cause be shown to the satisfaction of the Court for the non-production thereof. And the Court on receiving any such evidence shall record its reason for so doing.

113. Documents to be received by Court.

(1) The Court shall receive the documents respectively produced by the parties at the hearing, provided that the documents produced by each party be accompanied by an accurate list thereof. Rejection of irrelevant or inadmissible documents.

(2) The Court may at any stage of the action reject any document which it considers irrelevant or otherwise inadmissible, recording the grounds of such rejection.

114. No documents to be placed on record unless proved.

(1) No document shall be placed on the record unless it has been proved or admitted in accordance with the law of evidence for the time being in force.

Proved documents to be marked and filed

(2) Every document so proved or admitted shall be endorsed with some number or letter sufficient to identity it. The Judge shall then make an entry on the record to the effect that such document was proved against or admitted by (as the case may be) the person against whom it is used, and shall in such entry refer to such document by such number or letter in such a way as to identify it with the document so proved or admitted. The document shall then be filed as part of the record.

Documents which are not proved to be returned to parties.

(3) All documents produced at the hearing and not so proved or admitted shall be returned to the parties respectively producing them.

115. Court may order any document to be impounded.

Notwithstanding anything contained in section 114, the Court may, if it sees sufficient cause, direct any document or book produced before it in any action to be impounded and kept in the custody of an officer of the Court for such period and subject to such conditions as the Court thinks fit.

116. When document admitted in evidence may be returned.

(1) When an action has been disposed of, or when the time for preferring an appeal from the decree has elapsed, or if an appeal has been preferred, then after the appeal has been disposed of, any person, whether a party to the action or not, desirous of receiving back any document produced by him in the action, and placed on the record, shall, unless the document is impounded under section 115, be entitled to receive back the same:

Provided that a document may be returned at any time if the person applying for such return deliver to the proper officer a certified copy of such document to be substituted for the original;

Certain documents not to be returned.

And provided further, that no document shall be returned which by force of the decree has become void or useless.

Receipt for returned documents.

(2) On the return of a document which has been admitted in evidence, a receipt shall be given by the party receiving it, in a receipt book to be kept for the purpose.

117. Provisions as to documents apply to other material objects.

The provisions herein contained as to documents shall, so far as may be, apply to all other material objects producible as evidence.

TRANSLATIONS OF DOCUMENTS

118. Translations of documents.

No translation of any document tendered in evidence in any Court shall be permitted to be read as a translation of such document, unless the same shall be signed by an interpreter of the Supreme Court, or the Court of Appeal, or by a Government sworn translator, or by a sworn translator or interpreter of some District Court, Family Court or Primary Court.

119. Who shall be deemed to a translator.

No person other than an interpreter of the Supreme Court, or the Court of Appeal, or a Government sworn translator, or an interpreter of a District Court, or Family Court or Primary Court, shall be deemed to be a translator of any Court unless he shall have received a certificate from the Judge of such Court that he is competent to fulfill the duties of a translator, and shall have taken an oath before such Judge faithfully to perform the duties of his office.

120. Fees of translators.

No such translator as aforesaid shall be entitled to have or recover in respect of fees for any translation any sum of money in excess of the following rates, namely:—

For every folio of 120 words.....Rs. 1.25.

For every fractional part of a folio...Rs. 1.25.

[S 120 am by s 27 of Law 20 of 1977.]

CHAPTER XVII

OF WITNESSES AND DOCUMENTS

[Heading subs by s 28 of Law 20 of 1977.]

121. Summons to witnesses.

(1) The parties may, after the 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, summons to persons whose attendance is required either to give evidence or to produce documents.

Lists of witnesses and documents.

[Subs by s 29(2) of Law 20 of 1977.]

(2) Every party to an action shall, not less than fifteen days before the date fixed or the trial of an action, title 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.

[S 121(2) subs by s 29(1) of Law 20 of 1977.]

122. Payment of witness's expenses.

The party applying for a summons shall, before the summons is granted, and within a period to be fixed by the Court, pay into Court, or give security for payment of, such a sum of money as appears to the Court to be sufficient to defray the travelling and other expenses of the person summoned, in passing to and from the Court in which he is required to attend, and for one day's attendance:

Provided that in the case of a witness residing within four miles of the Court at which his attendance is required, no such payment shall be made nor security given;

And provided further that the making of any such payment and the giving of any such security shall in no case be a condition precedent to the issue of a summons, but in every case (except the case of a witness residing within four miles from the Court) where summons issues without such payment having been made or security given, the witness shall be informed on the face of the summons that such is the case, and that it is not obligatory on him to attend.

123. Witness's expenses to be paid before he gives evidence.

The sum so paid into Court, or so secured, shall at least be paid or tendered to the person summoned at the time when he is called on to give his evidence, if he demands the same.

124. Court may order a sufficient sum to be paid.

If it appears to the Court or to such officer as it appoints in this behalf that the sum paid into Court is not sufficient to cover such expenses, the Court may direct such further sum to be paid to the person summoned as appears to be necessary on that account; and in case of default in payment, may, by writ issued to the Fiscal, order such sum to be levied by sequestration and sale of the movable property of the party obtaining the summons as is hereinafter provided; or the Court may discharge the person summoned without requiring him to give evidence; or may both order such levy and discharge such person as aforesaid.

125. Expenses of detention.

If it is necessary to detain the person summoned for a longer period than one day, the Court may from time to time order the party at whose instance he was summoned to pay into Court such sum as is sufficient to defray the expenses of his detention for such further period; and in default of such deposit being made, may, by writ issued to the Fiscal, order such sum to be levied by sequestration and sale of the movable property of the party at whose instance he was summoned; or the Court may discharge the person summoned without requiring him to give evidence; or may both order such levy and discharge such person as aforesaid.

126. Summons to specify time, place, and purpose of attendance.

(1) Every summons for the attendance of a person to give evidence or produce a document shall specify the time and place at which he is required to attend and also whether his attendance is required for the purpose of giving evidence or to produce a document, or for both purposes; and any particular document which the person summoned is called on to produce shall be described in the summons with reasonable accuracy.

(2) If money has been deposited or security given for his expenses under the provisions of section 122, the summons shall contain a statement to that effect.

127. Summons to produce document.

Any person may be summoned to produce a document without being summoned to give evidence; and any person summoned merely to produce a document shall be deemed to have complied with the summons if he cause such document to be produced, instead of attending personally to produce the same.

128. Person in Court may be required to produce a document.

Any person present in Court may be required by the Court to give evidence, or to produce any document then and there in his actual possession or power.

129. Service of summons.

Every summons to a person to give evidence or produce a document shall be served as nearly as may be in the manner hereinbefore prescribed for the service of summons on the defendant; and the rules contained in this Ordinance as to proof of service of summons on the defendant shall apply in case of all summons served under this section.

130. Service must afford reasonable time for attendance.

The service shall in all cases be made a sufficient time before the time specified in the summons for the attendance of the person summoned, to allow him a reasonable time for preparation and for travelling to the place at which his attendance is required.

131. Procedure to be followed when summons cannot be served.

(1) If the Fiscal returns to the Court that the summons for the attendance of a person, either to give evidence or to produce a document, cannot be served, the Court may take evidence touching the non-service.

And upon being satisfied that such evidence or production is material, and that the person for whose attendance the summons has been issued is absconding, or keeping out of the way for the purpose of avoiding the service of summons, the Court may in its discretion either issue a warrant for the apprehension of such witness or may issue a proclamation requiring him to attend to give evidence, or produce the document, at a time and place to be named therein; and a copy of such proclamation shall be affixed on the outer door of the house in which he ordinarily resides.

Proclaimed Witness how dealt with.

(2) If he does not attend at the time and place named in such proclamation, the Court may in its discretion, at the instance of the party on whose application the summons was issued make an order for the sequestration of the property of the person whose attendance is required, to such amount as the Court thinks fit, not exceeding the amount of the costs of sequestration and of the fine which may be imposed under section 133.

132. If witness appears sequestration may be withdrawn.

If, on the sequestration of his property, such person appears and satisfies the Court that he did not abscond or keep out of the way to avoid service of the summons, and that he had not notice of the proclamation in time to attend at the time and place named therein, the Court shall direct that the property be released from sequestration, and shall make such order as to the costs of the sequestration as it thinks fit.

133. Procedure when witness fails to appear.

If such person does not appear, or appearing, fails to satisfy the Court that he did not abscond or keep out of the way to avoid service of the summons, and that he had not notice of the proclamation in time to attend at the time and place named therein, the Court may impose upon him such fine, in the case of the Primary Court not exceeding fifty rupees, and in the case of the District Court not exceeding two hundred rupees, as the Court thinks fit, having regard to his condition in life and all the circumstances of the case; and may order the property sequestered, or any part thereof, to be sold for the purpose of satisfying all costs incurred in consequence of such sequestration, together with the amount of the said fine, if any:

Provided that if the person whose attendance is required pays into Court the costs and the fine as aforesaid, the Court shall order the property to be released from sequestration.

134. Court may summon and examine any person as witness.

Subject to the rules of this Ordinance as to attendance and appearance, if the Court at any time thinks it necessary to examine any person other than a party to the action, and not named as a witness by a party to the action, the Court may, of its own motion, cause such person to be summoned as a witness to give evidence, or to produce any document in his possession, on a day to be appointed; and may examine him as a witness, or require him to produce such document.

135. Person summoned must attend at time and place named in the summons.

Subject as last aforesaid, whoever is summoned to appear and give evidence in an action must attend at the time and place named in the summons for that purpose, and whoever is summoned to produce a document must either attend to produce it, or cause it to be produced, at such time and place.

136. When witness may depart.

No person so summoned and attending shall depart unless and until—

(a) he has been examined or has produced the document and the Court has risen; or

(b) he has obtained the Court's leave to depart.

137. Witness may be arrested for Non-compliance with summons.

(1) If any person on whom a summons to give evidence or produce a document has been served fails to comply with the summons, or if any person so summoned and attending departs in contravention of section 136, the Court may order him to be arrested and brought before the Court:

Provided that no such order shall be made when the Court has reason to believe that the person so failing had a lawful excuse for such failure.

Non-compliance with summons without awful excuse deemed to be contempt of Court.

(2) When any person so brought before the Court fails to satisfy it that he had a lawful excuse for not complying with the summons, he shall be deemed to be guilty of the offence of contempt of Court, and punishable therefor.

138. Court may release arrested witness on bail.

If any person so apprehended and brought before the Court cannot, owing to the absence of the parties or any of them give the evidence or produce the document which he has been summoned to give or produce, the Court may require him to give reasonable bail or other security for his appearance at such time and place as it thinks fit, and on such bail or security being given may release him.

139. Procedure when witness absconds.

If any person so failing to comply with a summons absconds or keeps out of the way, so that he cannot be apprehended and brought before the Court, the provisions of sections 131, 132, and 133 shall, mutatis mutandis apply.

140. Court may pass decree against party refusing to give evidence.

If any party to an action being present in Court refuses, without lawful excuse, when required by the Court, to give evidence, or to produce any document then and there in his actual possession or power, the Court may in its discretion either pass a decree against him, or make such other order in relation to the action as the Court thinks fit, or may punish him as for a contempt of Court.

141. Rules as to witnesses to apply to a party summoned to give evidence.

(1) Whenever any party to an action is required to give evidence or produce a document, the rules as to witnesses contained in this Ordinance shall apply to him, so far as they are applicable.

(2) Nothing in this Chapter contained shall be deemed in any way to contravene or affect the provisions of the Proof of Public Documents Ordinance except in so far as the same may be hereby expressly repealed or modified.

142. Privilege from arrest of witness.

Any person duly and in good faith summoned or ordered to attend for the purpose of being examined in a case is privileged from arrest in a civil action or special proceeding while going to, remaining at, and returning from the place where he is required to attend.

CHAPTER XVIII

OF ADJOURNMENTS

143. Adjournments.

(1) The Court may, if sufficient cause be shown at any stage of the action, grant time to the parties or to any of them, and may from time to time adjourn the hearing of the action:

Provided however, that no adjournment in excess of Six weeks may be granted except in exceptional circumstances, and for reasons to be recorded.

[S 143(1) subs by s 10 of Act 79 of 1988.]

(2) In all such cases the Court shall fix a day for the further hearing of the action, and may make such order as it thinks fit with respect to the costs occasioned by the adjournment:

Provided that, when the hearing of evidence has once begun, the hearing of the action shall be continued from day to day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the hearing to be necessary for reasons to be recorded and signed by the Judge.

144. Non-appearance of a party on the adjourned day.

If on any day to which the hearing of the action is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the action in one of the modes directed in that behalf by Chapter XII, or make such other order as it thinks fit.

145. Default of party to carry out purpose of adjournment.

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 to the further progress of the action, for which time has been allowed, the Court may, notwithstanding such default, proceed to decide the action forthwith.

CHAPTER XIX

OF THE TRIAL

146. Determining of issues.

(1) On the day fixed for the hearing of the action, or on any other day to which the hearing is adjourned, if the parties are agreed as to the question of fact or of law to be decided between them, they may state the same in the form of an issue, and the Court shall proceed to determine the same.

(2) If the parties, however, are not so agreed, the Court shall, upon the allegations made in the plaint, or in answer to interrogatories delivered in the action, or upon the contents of documents produced by either party, and after such examination of the parties as may appear necessary, ascertain upon what material propositions of fact or of law the parties are at variance, and shall thereupon proceed to record the issues on which the right decision of the case appears to the Court to depend.

(3) Nothing in this section requires the Court to frame and record issues when the defendant makes no defence.

147. Trial of issues of law first.

When issues both of law and of fact arise in the same action, and the Court is of opinion that the case may be disposed of on the issues of law only, it shall try those issues first, and for that purpose may, if it thinks fit, postpone the settlement of the issues of fact until after the issue of law have been determined.

148. Adjournment for evidence.

If the Court is of opinion that the issues cannot be correctly framed without the examination of some person not before the Court, or without the inspection of some document not produced in the action, it may adjourn the framing of the issue to a future day to be fixed by the Court, and may compel the attendance of such person or the production of such document by summons or other process.

149. Amendment of Issues.

The Court may, at any time before passing a decree, amend the issues or frame additional issues on such terms as it thinks fit.

150. Party having right to begin to state his case.

The party having the right to begin shall state his case, giving the substance of the facts which he proposes to establish by his evidence.

Explanation 1

Rules as to right to begin

The plaintiff has the right to begin unless where the defendant admits the facts alleged by the plaintiff, and contends that either in point of law or on some additional facts alleged by the defendant the plaintiff is not entitled to any part of the relief which he seeks, in which case the defendant has the right to begin.

Explanation 2

The case enunciated must reasonably accord with the party's pleading, i.e., plaint or answer, as the case may be. And no party can be allowed to make at the trial a case materially different from that which he has placed on record, and which his opponent is prepared to meet. And the facts proposed to be established must in the whole amount to so much of the material part of his case as is not admitted in his opponent's pleadings.

151. Party having right to begin to produce his evidence.

After stating his case in person, or by his registered Attorney or counsel, the same party shall produce his evidence, calling his witnesses and by questions eliciting from each of them the relevant and material facts to which such witness can speak of his own observation.

Explanation

The questions should be simple, and so framed as to obtain from the witnesses, as nearly as may be in a chronological order, a narrative of all the facts relevant to the matter in issue between the parties which he has witnessed, i.e., which he has in any manner directly observed or perceived, and no others. And on any disputed point the questions should not be such as to lead, or suggest, the answer; nor such as to induce a witness, other than an expert, to state a conclusion of his reasoning, an inference of fact, or a matter of belief, in the place of describing what he actually observed.

Also, a general request to a witness to tell what he knows, or to state the facts of the case, is, as a rule, not to be permitted, because it gives an opening for a prepared story.

Nothing in this explanation operates to prevent a witness from stating hearsay, or giving any opinion, where the hearsay or opinion is a relevant fact in the case.

152. Cross-examination.

After the examination-in-chief by the party who called the witness, the cross-examination of the same witness, if required, shall in like manner be effected by the opposite side, only that in this case leading questions may be put.

153. Re-examination.

Then shall follow re-examination by the first side if required, for the purpose of enabling the witness to explain such answers given by him on cross-examination as may have left facts imperfectly stated by him, and to add such further facts as may have been suggested and made admissible by the cross-examination

Explanation

During the course of the examination, cross-examination, and re-examination, the Court ought not, as a general rule, to interfere, except when necessary for the purpose of causing questions to be put in a clear and proper shape, of checking improper questions and of making the witness give precise answers. At the end of it, however, if it has been reasonably well conducted, the Court ought to know fairly the position of the witness with regard to the material facts of the case, and it should then put such questions to the witness as it may consider necessary to possess itself of all the detailed relevant facts to which the witness can speak from personal observation, or which bear upon his trustworthiness.

154. Tender of documents in evidence.

(1) Every document or writing which a party intends to use as evidence against his opponent must be formally tendered by him in the course of proving his case at the time when its contents or purport are first immediately spoken to by a witness. If it is an original document already filed in the record of some action, or the deposition of a witness made therein, it must previously be procured from that record by means of, and under an order from, the Court. If it is a portion of the pleadings, or a decree or order of Court made in another action, it shall not generally be removed there from, but a certified copy thereof shall be used in evidence instead.

Records of other actions not to be admitted in bulk.

(2) It shall not be competent to the Court to admit in evidence the entire body of proceedings and papers of another action indiscriminately. Each of the constituent documents, pleadings, or processes of the former action, which may be required in the pending action, must be dealt with separately as above directed.

Documents admitted to be read aloud in Court.

(3) The document or writing being admitted in evidence, the Court, after marking it with a distinguishing mark or letter by which it should, when necessary, be ever after referred to throughout the trial, shall cause it, or so much of it as the parties may desire, to be read aloud.

Explanation

If the opposing party does not, on the document being tendered in evidence, object to its being received, and if the document is not such as is forbidden by law to be received in evidence, the Court should admit it.

If, however, on the document being tendered the opposing party objects to its being admitted in evidence, then commonly two questions arise for the Court—

Firstly, whether the document is authentic in other words, is what the party tendering it represents it to be; and

Secondly, whether, supposing it to be authentic, it constitutes legally admissible evidence as against the party who is sought to be affected by it.

The latter question in general is matter of argument only, but the first must be supported by such testimony as the party can adduce. If the Court is of opinion that the testimony adduced for this purpose, developed and tested by cross-examination, makes out a prima facie case of authenticity and is further of opinion that the authentic document is evidence admissible against the opposing party, then it should admit the document as before.

If, however, the Court is satisfied that either of those questions must be answered in the negative, then it should refuse to admit the document.

Whether the document is admitted or not it should be marked as soon as any witness makes a statement with regard to it; and if not earlier marked on this account, it must, at least, be marked when the Court decides upon admitting it.

155. Procedure to be followed before witness is asked to identify document.

Before a witness is allowed to, in any way, identify a document, he should generally be made, by proper questioning, to state the grounds of his knowledge with regard to it.

Illustration

If the witness is about to speak to the act, or factum, of signature he should first be made to explain concisely the occurrences which led to his being present on the occasion of the signing; and if he is about to recognise a signature on the strength of his knowledge of the supposed signer's handwriting, he should first be made to state the mode in which this knowledge was acquired.

156. Cross-examination as to knowledge.

The questioning for this purpose should be effected by the party who is seeking to prove the document; and the opposing party, if he desires to do so, should be allowed to interpose with cross-examination on this point before the document is shown to the witness.

157. Court to see witness thus tested.

It is the duty of the Court, in the Court to see event of a witness professing to be able to witness thus tested recognise or identify writing, always to take care that his capacity to do so is thus tested, unless the opposite party admits it.

158. And to decide on his competency.

If on the examination effected for this purpose it appears to the Court that the witness was not in tact present at the time of signing, or is not reasonably competent to identify the handwriting, then the Court shall not permit him to give his testimony on the matter of the signature.

159. Signature by a mark how proved.

(1) The signature of a person, which purports or which appears by the evidence to have been written by the pen of another, is not proved until both the fact of the writing and the authority of the writer to write the name on the document as a signature is proved.

(2) Subsection (1) applies to the case where the signature is a mark explained by the name written adjacent thereto.

160. Proof in the case of an illiterate person.

In the case of an illiterate person, who cannot read, it must also be proved that at the time when his name was written on, or his mark put to, the document, he understood the contents of it:

Provided that where the name of such illiterate person shall have been written on, or his mark put to, any document for the purpose merely of attesting the signature of another, it shall not be necessary to prove that he understood the contents of such document, but it shall be sufficient to prove that he was aware of the purpose for which this name was so written or his mark so put, and that the person whose signature he purports to attest was known to him.

161. Case of documents whose execution need not be proved.

When the document purports on the face of it to be so old that proof of the actual execution is not required by law, it is not proved until sufficient evidence has been given to prove both that it comes into Court from the proper custody, and that it has continued to be in proper custody throughout the period during which it can be reasonably accounted for.

2162. Copy of absent original, how to be proved.

When the document, the admission of which is objected to, is put forward as the copy of an absent original, it is not proved until both such evidence as is sufficient to prove the correctness of the copy, and also such evidence as would be sufficient to prove the original, had it been tendered instead of the copy, has been given.

163. On termination of beginning party's case the opposing party to state and prove his in like manner.

Reply.

When rebutting evidence is admissible.

When the party beginning has stated his case and adduced his evidence in accordance with the foregoing rules, then the opposing party or parties (if there are more than one, who have distinct cases) shall in person, or by registered Attorney or counsel, state his or their case or cases (and in the latter event in succession), and when the case of each opposing party has been so stated, each such party shall adduce in order his evidence, oral and documentary, and the same shall be received and dealt with precisely as in the case of the party beginning, who shall then be entitled to reply. But where there are several issues, the burden of proving some of which lies on the other party or parties, the party beginning, may at his option either produce his evidence on those issues or reserve it by way of answer to the evidence produced by the opposing party or parties; and in the latter case the party beginning may produce evidence on those issues after the other party or parties has or have produced all his or their evidence, and such other party or parties may then reply specially on the evidence so produced by the party beginning, but the party beginning Will in that case be entitled to reply generally on the whole case.

164. Court may question witness at any time.

The Court may at any time, whether before or after the examination of a witness, by the respective parties or during such examination, put and interpose such questions as it may consider conducive to the attainment of truth and justice. And the answers to such questions shall be made to appear on the face of the record, as having been given to the Court.

165. Court may recall witness.

The Court may also in its discretion recall any witness, whose testimony has been taken, for further examination or cross-examination, whenever in the course of the trial, it thinks it necessary for the ends of justice to do so.

166. When may Court permit departure from above rules.

The Court may for grave cause, to be recorded by it at the time, permit a departure from the course of trial prescribed in the foregoing rules.

167. Evidence of witness to be given orally in open Court.

The evidence of the witnesses shall be given orally, as above prescribed, in open Court in the presence and under the personal direction and superintendence of the Judge.

168. Witness to be examined on oath, or affirmation.

Witnesses professing to be Christians or Jews, who have discretion to understand the nature of an oath, shall be examined upon oath, unless they state that, according to their religious tenets or on other grounds they object to the taking of an oath, in which case they shall be examined on affirmation. Witnesses not professing to be Christians or Jews shall be examined on affirmation. The same rule shall apply to affidavits. And except when hereinafter otherwise expressly provided, the oath or affirmation shall be administered in open Court.

169. Evidence of witness how taken down.

The evidence of each witness shall be taken down in writing by the Judge, or in his presence and hearing and under his personal direction and superintendence. The evidence shall be taken down ordinarily in the form of a narrative.

[S 169 am by s 30 of Law 20 of 1977.]

170. Any particular question and answer may be taken down.

The Court may of its own motion or on the application of any party take down or cause to be taken down any particular question and answer, or any objection to any question, if there appear to the Court any special reason for so doing.

171. The objection to question which is allowed and the decision of Court thereon may be taken down.

If any question put to a witness be objected to, and the Court allows the same to be put, the Judge may his discretion take down in writing the question, the answer, the objection, and the name of the party making it, together with the decision of the Court thereon.

172. The objection to question disallowed and the decision of Court thereon to be taken down.

If on objection made the Court refuses to allow the question to be put, the Judge shall, on the request of the questioner, take down in writing the question, the objection, and the name of the party making it, together with the decision of the Court thereon.

173. Court may record remarks on demeanour of witness.

The Court may record such remarks as it thinks material respecting the demeanour of any witness while under examination.

174. Witnesses may be kept out of Court.

The witnesses on either side or on both or all sides shall, on motion of any of the parties, be kept out of Court and of hearing, except the witness immediately under examination; nor shall any witness, who shall remain in Court or within hearing after order made to that effect, be permitted to give evidence, unless in the case of a witness called to prove some fact which has incidentally become essential in the course of the trial, and the necessity of which could not reasonably have been anticipated. And every witness who has been examined shall be kept separate from, and shall be allowed no communication with, those who still remain to be examined:

Provided that it shall be lawful for the Court in its discretion to allow any witness to be examined, if it shall think such examination conducive to the attainment of truth or justice, notwithstanding that such witness shall have remained in Court or within hearing contrary to such order aforesaid.

175. No witness to be called or document to be produced unless included in list of witnesses or documents.

(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.

[S 175 re-numbered as s 175(1) by s 31(1) of Law 20 of 1977.]

(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.

[S 175(2) ins by s 31(2) of Law 20 of 1977.]

176. Court may forbid indecent or scandalous questions.

The Court may forbid any questions or inquiries which it regards as indecent or scandalous, although such questions or inquiries may have some bearing on the questions before the Court, unless they relate to facts in issue or to matters necessary to be known in order to determine whether or not the fact in issue existed.

177. Court shall forbid insulting questions.

The Court shall forbid any question which appears to it to be intended to insult or annoy, or which, though proper in itself, appears to the Court needlessly offensive in form.

178. Evidence de bene esse.

(1) If a witness is about to leave the jurisdiction of the Court, or if other sufficient cause is shown to the satisfaction of the Court why his evidence should be taken immediately, the Court may upon the application of either party or of the witness, at any time after the institution of the action and before trial, take the evidence of such witness in manner hereinbefore provided.

(2) Where such evidence is not taken forthwith, and in the presence of the parties, such notice as the Court thinks sufficient of the day fixed for the examination shall be given to the parties.

(3) The evidence so taken may be read at any hearing of the action, provided that the witness cannot then be produced.

179. Evidence taken on affidavit or on commission.

The Court may at any time, for sufficient reason, order that any particular factor facts may be proved by affidavit, or by depositions taken on commission, instead of by the testimony of witnesses given viva voce before it, or that the affidavit, or deposition taken on commission, of any witness may be read at the hearing of the action on such conditions as the Court shall think reasonable;

Provided that when it appears to the Court that either party bonafide desires the production of a witness before the Court for cross-examination viva voce, and that such witness can be so produced, an order shall not be made authorising the evidence of such witness to be given otherwise than viva voce.

180. Court may examine witness viva voce notwithstanding affidavit or commission.

In the event of an order having been made for the proof of facts by affidavit, or by deposition taken on commission, the Court may, nevertheless, at the instance of either party order the attendance of the declarant or deponent at the hearing of the action for viva voce cross-examination, if he is in Sri Lanka and can be produced.

181. What statements may affidavit contain.

Affidavits shall be confined to the statement of such facts as the declarant is able of his own knowledge and observation to testify to, except on interlocutory applications in which statement of his belief may be admitted, provided that reasonable grounds for such belief be set forth in the affidavit.

182. Petitions cannot be converted to affidavits.

A petition stating facts of observation and belief is not converted into an affidavit by the addition of a verifying clause, an affirmation or oath, to the effect that the statements in the petition are true.

183. Who may administer oaths.

In the case of any affidavit under this Chapter—

(a) any Court, or Magistrate, or Justice of the Peace; or

(b) any officer whom the Minister in charge of the subject of Justice may appoint for the purpose (and who shall be styled "Commissioner for Oaths”); or

[S 183(b) am by s 11(1) of Act 79 of 1988.]

(c) any person qualified to administer an Oath or affirmation according to the law of the country, in which the affidavit is sworn or affirmed.

[S 183(c) ins by s 11(2) of Act 79 of 1988.]

may administer the oath to the declarant.

183A. Who may make affidavits in lieu of the parties to the action.

Where any person is required under the provisions of this Code, or under any other law for the time being in force, to make an affidavit, then—

(a) where the action is brought by or against the Attorney-General, any officer of the State, and

(b) where the action is brought by or against a corporation, board, public body, or company, any secretary, director or other principal officer of such corporation, board, public body or company; and

(c) where any party to the action is absent from Sri Lanka, his Attorney duly authorised to bring, conduct or defend the action, as the case may be; and

(d) where any party to the action, or where there is more than one party to the action such of the parties as are in Sri Lanka, or when such Attorney of the parties as is just above mentioned, is or are unable, for want of personal knowledge or bodily or mental infirmity, to make the required affidavit, any recognised agent of such party,

may make an affidavit in respect of these matters, instead of the party to the action:

Provided that in each of the foregoing cases the person who makes the affidavit instead of the party to the action, must be a person having personal knowledge of the facts of the cause of action, and must in his affidavit swear or affirm that he deposes from his own personal knowledge of the matter therein contained and shall be liable to be examined as to the subject-matter thereof at the discretion of the Judge, as the party to the action would have been, if the affidavit had been made by such party.

[S 183A ins by s 12 of Act 79 of 1988.]

183B. Punishment for willful false statement made under section 183A.

Where any person willfully makes any false statement by affidavit or otherwise, in the course of any of the proceedings aforesaid he may be punished as for a contempt of Court, besides his liability to be tried and punished under the Penal Code for the offence of giving false evidence, where such statement is on oath or affirmation.

[S 183B ins by s 12 of Act 79 of 1988.]

CHAPTER XX

JUDGMENT AND DECREE

184. Judgment when pronounced.

(1) The Court, upon the evidence which has been duly taken or upon the facts admitted in the pleadings or otherwise, and after the parties have been heard either in person or by their respective counsel or registered Attorneys (or recognised agents), shall, after consultation with the assessors (if any), pronounce judgment in open Court, either at once or on some future day, of which notice shall be given to the parties or their registered Attorneys at the termination of the trial.

(2) On the day so fixed, if the Court is not prepared to give its judgment, a yet future day may be appointed and announced for the purpose.

185. Judge may pronounce judgment written by predecessor.

A Judge may pronounce a judgment written by his predecessor, but not pronounced,

186. Judgment to be in writing and to be dated and signed in open Court.

The judgment shall be in writing and shall be dated and signed by the Judge in open Court at the time of pronouncing it.

[S 186 subs by s 32 of Law 20 of 1977.]

186A. Validation in certain circumstances of judgments pronounced by successors in office of Judges.

Where a Judge pronounces a judgment written by his predecessor but not pronounced as provided in section 185, such judgment shall, if such predecessor was a judicial officer within the meaning of Article 114(6) of the Constitution at the time such judgment was written, not be deemed to be invalid by reason only of the fact that such predecessor had no jurisdiction to write such judgment.

[S 186A ins by s 2 of Act 3 of 1960.]

187. Requisites of Judgment.

The judgment shall contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision; and the opinions of the assessors (if any) shall be prefixed to the judgment and signed by such assessors respectively.

188. Decree.

As soon as may be after the judgment is pronounced, a formal decree bearing the same date as the judgment shall be drawn up by the Court in the form No. 41 in the First Schedule or to the like effect, specifying in precise words the order which is made by the judgment in regard to the relief granted or other determination of the action. The decree shall also state by what parties and in what proportions costs are to be paid, and in cases in the Primary Courts shall state the amount of such cost. The decree shall be signed by the Judge.

189. Amendment of Judgments, decrees and orders.

(1) The Court may at any time, either on its own motion or on that of any of the parties, correct any clerical or arithmetical mistake in any judgment or order or any error arising therein from any accidental slip or omission, or may make any amendment which is necessary to bring a decree into conformity with the judgment.

(2) Reasonable notice of any proposed amendment under this section shall in all cases be given to the parties or their registered Attorneys.

190. Requisites of decree relating to immovable property.

Where the decree relates to immovable property the property affected thereby shall be described therein by the boundaries and in such other manner by reference to surveys or otherwise as may secure, as far as possible, correctness of identification; and the description shall be in such form as to enable such decree to be registered under the Registration of Documents Ordinance.

[S 190 subs by s 33 of Law 20 of 1977.]

191. Requisites of decree relating to movable property.

When the action is for movable property, if the decree be for the delivery of such property, it shall also state the amount of money to be paid as an alternative, if delivery cannot be had.

192. At what rate may interest on money be decreed.

(1) When the action is for a sum of rate may interest on money due to the plaintiff, the Court may of the in the decree, order interest according to the rate agreed on between the parties by the instrument sued on, or in the absence of any such agreement at the legal rate, to be paid, on the principal sum adjudged from the date of action to the date of the decree, in addition to any interest adjudged on such principal superior any period prior to the institution of the action, with further interest at such rate on the aggregate sum so adjudged from the date of the decree to the date of payment, or to such earlier date as the Court thinks fit.

(2) For the purposes of this section, "the legal rate” means the rate per centum per annum determined by the Monetary Board established by the Monetary Law Act, by Notification published in the Gazette, having regard to current rates of bank interest.

(3) Where such decree is silent with regard to the payment of further interest on such aggregate sum as aforesaid from the date of the decree to the date of payment or other earlier date, the Court shall be deemed to have refused such interest, and a separate action therefor shall not lie.

[S 192 subs by s 3 of Act 6 of 1990.]

193. When Court may decree, specific performance.

When the action is for damages for breach of contract, if it appear that the defendant is able to perform the contract, the Court, with the consent of the plaintiff, may decree the specific performance of the contract within a time to be fixed by the Court, and in such case shall award an amount of damages to be paid as an alternative, if the contract is not performed.

194. When Court may decree payment by installments.

In all decrees for the payment of money, except money due on mortgage of movable or immovable property, the Court may order that the amount decreed to be due shall be paid by installments, with or without interest, and the Court may in its discretion impose such terms as it may think fit as to giving security for the payments so to be made:

Provided always that on failure to pay the first or any other installment, the whole amount or any balance then due shall on such failure become immediately payable;

Provided also, that if the party ordered to pay by installments shall appeal against the decree, and the appeal shall be decided against him, his right to pay by installments shall cease, and the whole amount shall be immediately payable, unless the Court of Appeal or the Supreme Court, as the case may be, give express direction to the contrary;

Provided also, that no appeal shall lie against the refusal of the Court to make an order for payment by installments.

195. Decree when set-off or claim in reconvention is allowed.

If the defendant shall have been allowed to set-off any demand against the claim of the plaintiff, the decree shall state what amount is due to the plaintiff and what amount (if any) is due to the defendant, and the mandatory part of the decree shall be for the recovery of any balance which shall on that statement appear to be due to either party. The decree of the Court with respect to anything awarded to the defendant on any matter on which the defendant obtains judgment by set-off or in reconvention, shall be to the same effect, and be subject to the same rules, as if such thing had been claimed by the defendant in a separate action against the plaintiff.

196. Decree when claim in respect of mesne profits from date of action is allowed.

When the action is for the recovery of the possession of immovable property, yielding rent or other profit, the Court may, whenever the prayer of the plaint asks for damages in respect of mesne profits or rent, provide in the decree for the payment of money in lieu of mesne profits or rent in respect of such property from the date of the institution of the action until the delivery of possession to the party in whose favour the decree is made, with interest thereon at such rate not exceeding twelve per centum as the Court thinks fit.

Explanation

"Mesne profits” of property mean those profits which the person in wrongful possession of such property actually received, or might, with ordinary diligence, have received therefrom.

[S 196 subs by s 6 of Act 53 of 1980.]

197. Mesne profits prior to date of action.

When the action is for the recovery of possession of immovable property and for mesne profits which have accrued thereon during a period prior to the institution of the action, the Court may either determine the amount and make an order for the payment thereof additional to and embodied in the decree itself, or may pass a decree for the property and reserve the inquiry into the amount of mesne profits to be entered upon after the execution of the decree for the property, as may appear most convenient.

198. Interlocutory order for accounts.

When the action is for an account of any property and for its due administration under the decree of the Court, the Court, before making the final decree between the parties, shall order such accounts and inquiries to be taken and made, and give such other directions, as it thinks fit.

199. Administration by the Court.

In the administration by the Court of the property of any person who dies after this Ordinance comes into force, if such property proves to be insufficient for the payment in full of his debts and liabilities, the same rules shall be observed as to the respective rights of secured and unsecured creditors, and as to debts and liabilities provable, and as to the valuation of annuities and future and contingent liabilities respectively as may be in force for the time being with respect to the estates of persons adjudged insolvent. And all persons who in any such case would be entitled to be paid out of such property may come in under the decree for its administration and make such claims against the same as they may respectively be entitled to by virtue of this Ordinance.

200. Decree in action for pre-emption.

When the action is to enforce a right of pre-emption in respect of a particular sale of property, and the Court finds for the plaintiff, if the amount of purchase money has not been paid into Court, the decree shall specify a day on or before which it shall be so paid, and shall declare that on payment of such purchase money, together with the costs (if any) decreed against him, the plaintiff shall obtain possession of the property, but that if such money and costs are not so paid on or before such day or any extension thereof which shall have been allowed for good cause shown, the action shall stand dismissed with costs.

201. .

[S 201 rep by Ordinance No. 21 of 1927.]

202. Interlocutory order in action for dissolution of partnership.

When the action is for the dissolution of partnership, the Court before making its decree may pass an order fixing the day on which the partnership shall stand dissolved, and directing such accounts to be taken and other acts to be done as it thinks fit.

203. Suit for account between principal and agent.

When the action is for an account of pecuniary transactions between principal and agent, and in all other actions not hereinbefore provided for, where it is necessary in order to ascertain the amount of money due to or from any party that an account should be taken, the Court shall before making its decree pass an order directing such account to be taken as it thinks fit.

204. Decree or order postponing hearing.

When a decree or order made at the hearing of the action is such as to have the effect of postponing the further hearing and the final determination of the action, as for instance a decree for the taking of accounts, or an order for the issue of a commission to take evidence, or of a commission to divide by metes and bounds, it shall specify the time at which the further hearing of the action shall be proceeded with.

205. Any person entitled to certified copies of decree and judgment.

Upon being paid such fee as the Court shall from time to time determine, the Registrar of the Court shall at all times furnish to any person applying for the same, and supplying the necessary stamp, copies of the proceedings in any action, or any party thereof, or upon such application and production of such stamp shall examine and certify to the correctness of any such copies made by such person.

206. Decree or copy to be primary evidence of decision.

The decree or such certified copy thereof shall constitute the sole primary evidence of the decision or order passed by the Court.

207. Decrees must be decisive, and must not direct non-suit.

All decrees passed by the Court shall, subject to appeal, when an appeal is allowed, be final between the parties; and no plaintiff shall hereafter be non-suited.

Explanation

Every right of property, or to money, or to damages, or to relief of any kind which can be claimed, set up, or put in issue between the parties to an action upon the cause of action for which the action is brought, whether it be actually so claimed, set up, or put in issue or not in the action, becomes, on the passing of the final decree in the action, a res judicata, which cannot afterwards be made the subject of action for the same cause between the same parties.

CHAPTER XXI

OF COSTS

208. Costs.

Under the denomination of costs are included the whole of the expenses necessarily incurred by either party on account of the action and in enforcing the decree passed therein, such as the expense of stamps, of summoning the defendants and witnesses, and of other processes, or of procuring copies of documents, fees and charges of counsel and registered Attorneys, such just and reasonable charges as appear to have been properly incurred in procuring evidence and the attendance of witnesses, and expenses of commissioners either in taking evidence or in local investigations, or in investigations into accounts; and all of other expenses of procuring and adducing necessary evidence.

[S 208 am by s 34 of Law 20 of 1977.]

209. Court always to have Power to give or reserve costs.

When disposing of any application or action under this Ordinance, whether of regular or of summary procedure, the Court may, unless elsewhere in this Ordinance otherwise directed, give to either party, the costs of such application or action, or may reserve the consideration of such costs for any future stage of the proceedings. The Court may in its order, fix the amount of the costs of such application or action, so however, that the amount so fixed shall not be less than fifty per centum of the amount of costs that may be given in an application or action of that category, at such rates as may be prescribed for the purposes of section 214, and not more than two hundred per centum of the amount of costs that may be given in an application or action of that category, at such rates as may be prescribed for the purposes of section 214. Any order for the payment of costs only, is a decree for money within the provisions of section 194 as to payments by installments.

[S 209 subs by s 5 of Act 14 of 1997.]

210. Court shall direct by whom costs are to be paid and estimate value in certain cases.

The decree or order shall direct by whom, the costs of each party are to be paid, and whether in whole or in what part or proportion. The Court shall, in decrees entered in such classes of action as are prescribed, give its estimate of the value of the action, and such estimate shall be deemed to be the value of the action, for the purposes of applying the rates prescribed for the purposes of section 214, to that action.

[S 210 subs by s 6 of Act 14 of 1997.]

211. Court may apportion costs.

(1) The Court shall have full power to give and apportion costs of every application and action in any manner it thinks fit, and the fact that the Court has no jurisdiction to try the case is no bar to the exercise of such power:

Provided that if the Court directs that the costs of any application or action shall not follow the event, the Court shall state its reasons in writing.

[S 211 re-numbered as 211(1) by s 7(1) of Act 14 of 1997.]

(2) Without prejudice to the generality of the powers of the Court under subsection (1), the Court may give costs to a party, in the case of any frivolous or vexatious action or application or defence by the other party or in the case of expense to such party, occasioned by the delay or default of the other party or by the making of any unnecessary or unreasonable application by the other party, so however, that the costs so ordered shall in no case exceed five hundred per centum of the costs that may be ordered in an application or action of that category, at the rates prescribed for the purposes of section 214.

[S 211(2) ins by s 7(2) of Act 14 of 1997.]

212. Set-off costs.

The Court may direct that the costs payable to one party by another shall be set off against a sum which is admitted or is found in the action to be due from the former to the latter. But such direction shall not affect the lien upon the amount decreed of any registered Attorney in respect of the costs payable to him under the decree.

213. Court may give interest on costs.

The Court may give interest on costs at the legal rate per annum as specified in section 192 of the Ordinance, calculated from the date of the decree, and may direct that costs, with or without interest, be paid out of, or charged upon, the subject matter of the action.

[S 213 subs by s 8 of Act 14 of 1997.]

214. Costs to be taxed.

All bills of costs, whether between party and parties, or between registered Attorney and client, shall be taxed by the Registrar of the Court in either case according to such rates as may be prescribed. If either party is dissatisfied with this taxation, the matter in dispute shall be referred to the Court for its decision, and the decision of the Court (except when it is the decision of the Court of Appeal) he is liable to an appeal to the Court of Appeal.

[S 214 subs by s 9 of Act 14 of 1997.]

215. Action for costs by registered Attorney.

No registered Attorney shall commence or maintain any action for the recovery of any fees, charges, or disbursements at law until the expiration of one month or more, after he shall have delivered unto the party charged therewith, or left with him at his dwelling house or last known place of abode, a bill of such fees, charges and disbursements subscribed by such registered Attorney. And after such delivery or service thereof, either the registered Attorney or party charged therewith may obtain an appointment from the taxing officer for the taxation thereof; and if either party shall fail to attend, and the taxing officer is satisfied that such party has received due notice of the appointment, the taxation shall proceed in his absence.

216. Registered Attorney to bear costs of taxation in what case.

If more than one-sixth of the amount of any bill of costs is disallowed by the taxing officer, the registered Attorney shall bear the expense of taxation.

CHAPTER XXII

OF EXECUTIONS

217. Classification of decrees.

A decree or order of Court may command the person against whom it operates—

(a) to pay money;

(b) to deliver movable property;

(c) to yield up possession of immovable property;

(d) to grant, convey, or otherwise pass from himself any right to, or interest in, any property;

(e) to do any act not falling under any one of the foregoing heads; or it may enjoin that person;

(f) not to do a specified act, or to abstain from specified conduct or behaviour; or it may, without affording any substantive relief or remedy—

(g) declare a right or status.

And the method of procedure to be followed, when necessary, by the person party to the action in whose favour the decree or order is made, hereinafter called the "decree-holder” or "judgment-creditor”, in order to enforce satisfaction or execution of the decree in each case respectively by the person party to the action against whom the decree is made, hereinafter called the "judgment-debtor”, is that which is next hereinafter specified according to the above distinguishing heads.

EXECUTION OF DECREE TO PAY MONEY

218. Power of creditor to seize and sell debtor's property in satisfaction decree for payment of money.

When the decree falls under head (a) and is unsatisfied, the judgment-creditor has the power to seize, and to sell or realise in money by the hands of the Fiscal, except as hereinafter mentioned, all saleable property, movable or immovable, belonging to the judgment-debtor, or over which or the profits of which the judgment-debtor has a disposing power, which he may exercise for his own benefit, and whether the same be held by or in the name of the judgment-debtor or by another person in trust for him or on his behalf:

Provided that the following shall not be liable to such seizure or sale, namely—

Excepted property.

(a) the necessary wearing apparel, beds, and bedding of the judgment-debtor, or of his wife and children;

(b) tools, utensils, and implements of trade or business, and, where the judgment-debtor is an agriculturist, his implements of husbandry and such cattle and seed grain as may in the opinion of the Court be necessary to enable him to earn his livelihood as such; and such quantity of paddy as may, in the opinion of the Court, be necessary for the purpose of providing for the support of himself and his family until the next harvest;

[S 218 proviso para (b) subs by s 35(1)(i) of Law 20 of 1977.]

(c) professional instruments and library necessary for the carrying on of the judgment-debtor's profession or business to the value of one thousand rupees;

[S 218 proviso para (c) subs by s 35(1)(ii) of Law 20 of 1977.]

(d) books of accounts;

(e) mere rights to sue for damages;

(f) any right of personal service;

(g) the stipend, the cost of living allowance and the special living allowance of a naval, military, air force, civil or political pensioner of the Government;

[S 218 proviso para (g) am by s 2 of Act 24 of 1961.]

(h) so much of the salary and allowances of a state officer as does not in the aggregate exceed five hundred rupees per month;

[S 218 proviso para (h) subs by s 35(1)(iii) of Law 20 of 1977.]

(i) the pay and allowances of persons to whom the articles of war apply;

(j) the wages of labourers and domestic servants;

(k) an expectancy of succession by survivorship or other merely contingent or possible right of interest;

(l) a right to future maintenance and all maintenance, alimony and costs ordered in matrimonial suits or maintenance actions;

[S 218 proviso para (l) subs by s 35(1)(iv) of Law 20 of 1977.]

(m) so much of the salary or wages and allowances of an employee other than a state officer as does not in the aggregate exceed five hundred rupees per month;

[S 218 proviso para (m) subs by s 35(1)(v) of Law 20 of 1977.]

(n) any house which is not mortgaged as security for the payment of the whole or part of the sum referred to in such decree and which is the actual residence of the judgment-debtor at the time of the execution of such decree and has been such residence from the time of the institution of the action in which such decree has been entered together with such extent of land appurtenant thereto as the Court may consider necessary for its enjoyment;

[S 218 proviso para (n) ins by s 2 of Act 49 of 1958; subs by s 35(1)(vi) of Law 20 of 1977.]

(o) the amount standing to the credit of an employee's individual account in the Employees' Provident Fund established under the Employees' Provident Fund Act, or in any other provident fund established for the benefit of employees in any employment.

[S 218 proviso para (o) ins by s 2 of Act 24 of 1961.]

(p).

[S 218 proviso para (p) omitted by s 35(1)(vii) of Law 20 of 1977.]

Explanation

The particulars mentioned in clauses (g), (h), (i), (j), (m) and (o) are exempt from sequestration or sale, whether before or after they are actually payable.

[S 218 explanation subs by s 35(3) of Law 20 of 1977.]

219. Examination of judgment-debtor as to debts owing to him.

(1) The party entitled to enforce any decree for the recovery or payment of money may apply to the Court for an order that the debtor (or, in the case of a him. corporation, that any officer thereof) be orally examined before the Court on oath or affirmation, as to whether any and what debts are owing to the debtor, and whether the debtor has any and what other property or means of satisfying the decree; and the Court may thereon make an order for the attendance and examination on oath or affirmation of such debtor or of any other person whom it thinks necessary, and for the production by such debtor or person of any books or documents.

(2) If a debtor for whose attendance an order has been made under this section fails to comply with such order, the Court may, on its own motion or on the application of the party entitled to enforce the decree, issue a warrant for the arrest of such debtor:

Provided the Court may make it a condition of the issue of such warrant that the person applying for it shall deposit such sum as the Court may deem reasonable for the subsistence of the debtor from the time of his arrest until he can be brought before the Court, and for the purpose of defraying any other expenditure that may be incurred in executing such warrant.

220. Application need not to be supported by affidavit.

It shall not be necessary to support any such application by affidavits of the applicant's belief that any debts are owing to the debtor, or that he has any other property or means of satisfying the decree.

221. Costs.

The costs of any such application and of any proceedings arising there out or incidental thereto shall be in the discretion of the Court.

222. Execution of decree against legal representative of a deceased person.

(1) If the decree is against a party as the legal representative of a deceased person, and is for money to be paid out of the property of the deceased, it may be executed by the attachment and sale of any such property in the hands or under the control of the party against whom the decree is made.

(2) If no such property can be found, and the judgment-debtor fails to satisfy the Court that he has duly applied such property of the deceased as is proved to have come into his possession, the decree may be executed against the judgment-debtor to the extent of the property not duly applied by him, in the same manner as if the decree had been against him personally.

(3) An application to execute a decree against the judgment-debtor as provided in subsection (2) shall be made, by petition supported by affidavit of the judgment-creditor setting out the material facts, to which application the judgment-debtor shall be made respondent. The Court shall after inquiry, if satisfied that the decree should be executed against the judgment-debtor personally, grant such application.

[S 222(3) ins by s 8 of Act 53 of 1980.]

223. Seizure and sale to be effected under order of Court.

For the purpose of effecting the required seizure and sale in any case the Fiscal must be put in motion by application for execution of decree to the Court which made the decree sought to be enforced.

224. Application therefor.

The application for execution of the decree shall be in writing, signed by the applicant or his registered Attorney, and shall contain the following particulars—

(a) the number of the action;

(b) the names of the parties;

(c) the date of the decree;

(d) whether any appeal has been preferred from the decree;

(e) whether any, and what, adjustment of the matter in dispute has been made between the parties subsequently to the decree;

(f) whether any, and what previous applications have been made for execution of the decree, and with what result, including the dates and amounts of previous levies, if any;

(g) the amount of the debt or compensation, with the interest, if any, due upon the decree, or other relief granted thereby;

(h) the amount of costs, if any, awarded;

(i) the name of the person against whom the enforcement of the decree is sought;

(j) the mode in which the assistance of the Court is required, whether by the delivery of property specifically decreed, by the arrest and imprisonment of the person named in the application, or by the attachment of his property, or otherwise as the nature of the relief sought may require.

225. Court to satisfy itself as to conformity application. When application should be refused by the Court.

(1) Upon the application for execution of the decree being made, the Court shall satisfy itself by reference, if necessary, to the record of the action in which the decree or order sought to be executed was passed, that the application is substantially in conformity with the foregoing directions, and that the applicant is entitled to obtain execution of the decree or order which is the subject of the application. If the Court is not satisfied in these respects it shall refuse to entertain the application, unless and until amended in the particulars in which the Court considers it faulty and defective, and with the view to its being so amended the Court shall point out these particulars to the applicant;

Provided that the Court may make the requisite amendment then and there, if it is consented to by the applicant and is such as to admit of being conveniently so affected; and

Provided further that every such amendment shall be attested by the signature of the Judge making it.

(2) In the event of the Court refusing to entertain the application, the order of refusal, stating the date both of the application and of the order, and the name of the applicant, and specifying the grounds of refusal, shall be endorsed on the application, and the same shall be filed of record in the action.

Writ of execution.

(3) If the Court is satisfied in the respects above indicated, it shall direct a writ of execution to issue to the Fiscal in the form No. 43 in the First Schedule.

226. Duties of Fiscal on receiving writ.

(1) Upon receiving the writ, the Fiscal or his deputy, or other officer, shall within forty-eight hours after delivery to him of the same, if the debtor shall be a person residing within five miles of the office of the Fiscal or Deputy Fiscal or if residing beyond five miles, within an additional
forty-eight hours for every five miles or part thereof repair to his dwelling house or place of residence and there require him, if present, to pay the amount of the writ.

(2) If by reason of the debtor's absence no demand for the payment is made, or, in the event of any such demand, when made not being complied with, the Fiscal shall forthwith proceed to seize and sell, or otherwise realise in money, such unclaimed property of the judgment-debtor
as may be pointed out and surrendered to him for the purpose by the judgment-debtor, or in default thereof such property of the Judgment-debtor as may be pointed out by the judgment-creditor, or such property as is specified in the writ according to the rules next hereinafter contained:

Provided that when the debtor is out of Sri Lanka it shall not be necessary to require him to pay the amount of the writ before the execution is carried into effect.

227. Mode of Seizure.

Seizure of movable property in possession of debtor to be manual. Disposal of property seized until sale.

If the property sought to be seized and sold, or otherwise realised in satisfaction of the decree to be executed is movable property in the possession of the judgment-debtor, other than the property mentioned in the first proviso to section 218, the seizure shall be manual. The Fiscal, Deputy Fiscal, or other officer may at his discretion permit the owner or possessor of the property or the writ-holder to take charge of the property until the time of sale, on giving security to the satisfaction of such officer that he Will in the meantime safely and securely keep the same; or such officer may upon the necessary expenses therefor being advanced or secured to him by the debtor or the writ-holder, keep the property in his own custody or in the custody of one of his subordinates, or cause the same to be removed to some fit place of security. If such security is not given or such expenses are not advanced or secured, the Fiscal, Deputy Fiscal, or other officer shall make a special return thereof to the Court, and shall not be responsible for the due custody of the property so seized. The expenses of keeping the property in such custody or of removing the same when certified by the Fiscal shall, if not paid by the debtor, be a first charge on the proceeds of the property seized or sequestered, provided that the Court may, if it thinks fit, reduce the amount of expenses so certified as aforesaid:

Provided that when the property seized is Proviso as to subject to speedy and natural decay, or perishable property when the expense of keeping it in custody Will exceed its value, the Fiscal may sell it at once. The Fiscal, Deputy Fiscal, or other officer may at his discretion permit the owner or possessor of the property or the writ-holder to take charge of the property until the time of sale, on giving security to the satisfaction of such officer that he Will in the meantime safely and securely keep the same; or such officer may upon the necessary expenses therefor being advanced or secured to him by the debtor or the writ-holder, keep the property in his own custody or in the custody of one of his subordinates, or cause the same to be removed to some fit place of security. If such security is not given or such expenses are not advanced or secured, the Fiscal, Deputy Fiscal, or other officer shall make a special return thereof to the Court, and shall not be responsible for the due custody of the property so seized. The expenses of keeping the property in such custody or of removing the same when certified by the Fiscal shall, if not paid by the debtor, be a first charge on the proceeds of the property seized or sequestered, provided that the Court may, if it thinks fit, reduce the amount of expenses so certified as aforesaid:

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