REPORT OF THE CIVIL COURTS COMMISSION

To:

HIS EXCELLENCY THE GOVERNOR-GENERAL.

May it Please Your Excellency,

WE, the undersigned Commissioners of the Civil Courts Commission appointed on the 10th January, 1950;

"1. To inquire into the procedure, practice and administration of the Civil Courts of Ceylon and report on such reforms as may be necessary in matters of law or practice or in the administration of these Courts in order to secure greater efficiency and expedition in the transaction of business in these Courts with due regard to public interests.

"2. To examine the Civil Procedure Code (Chapter 86) and report: (a) whether it is adequate to meet modern requirements from the point of view of ensuring efficient and expeditious transaction of business in the aforesaid Courts, and

(b) if not, whether it should be replaced by a new Civil Procedure Code or whether the necessary reforms can be effected by amendments or additions to it.

"3. To prepare and submit a draft of a new Civil Procedure Code or alternatively a draft of such amendments and additions to the existing Civil Procedure Code as may be necessary ".

humbly submit to Your Excellency the following Report with the draft Civil Procedure Code prepared by us.

INTRODUCTORY

THOUGH the task entrusted to us is of a somewhat technical nature we realized from the commencement that the procedure of the Civil Courts is a matter of vital concern to the public. While substantive law deals with rights and with remedies for the violation of rights, procedural law is concerned with the process by which remedies are made available to those who seek redress for wrongs. Procedure is the channel whereby justice. reaches the subject.

2. We have also been specially enjoined in our terms of reference to consider the reforms necessary to ensure speedy and efficient justice with "due regard to public interest". This has cast on us a specific duty in approaching our problems. Accordingly we have made every endeavour to consult and seek the views of all persons and institutions likely to be helpful to us in our work. We published in the Press a notice of our appointment and the scope of our enquiry and invited those who desired to give evidence before us to submit memoranda. We also sought the assistance specially of Judges, Lawyers, Government departments and representative public bodies. We held several meetings, and we issued a questionnaire of a general nature (which is reproduced as Appendix A). We also held public sittings in almost every provincial centre and visited many of the Civil Courts, including Rural Courts.

3. A list of the witnesses who gave oral evidence is given in Appendix B, and in Appendix C we give a list of those who submitted written statements. The Memoranda received by us and the Minutes of Evidence given before us are forwarded separately. We desire to take this opportunity of placing on record our indebtedness to all those who have so kindly assisted us either as witnesses or otherwise.

4. Our terms of reference have required us not merely to investigate and report on the reforms necessary to improve and modify the procedure of the Courts but also to prepare a draft new Civil Procedure Code. When we were appointed it was anticipated that the work we had undertaken had some chance of being completed in about a year. The magnitude and complexity of the task however was appreciated only after the work progressed. It may be of interest to mention here that the Evershed Committee which was appointed in England on April 22, 1947, to investigate and report on the procedure and practice of the Supreme Court issued its final Report only about the middle of last year, although it was not burdened with the extremely exacting and arduous duty of having to prepare draft legislation embodying its recommendations. The Chairman had to officiate on the Bench in addition to his duties and it was therefore not possible for him to give all his time for this work. The other members of the Commission are busy practitioners. Mr. Hayley who was appointed to this Commission tendered his resignation on March 6, 1950, in view of his decision to leave the Island and settle down in the United Kingdom. Senator the Hon. Mr. E. B. Wikramanayake, Q.C. (then Mr. E. B. Wikramanayake, Q.C.) was appointed to succeed him on June 14, 1950. Mr. Justice E. F. N. Gratiaen who was appointed a member of this Commission tendered his resignation on December 8, 1952, in view of his additional duties as Chairman of the Criminal Courts Commission.

5. Our Courts have always maintained a high reputation for impartiality and independence. But the delay, expense and inconvenience caused to litigants who invoke the aid of the Civil Courts have provoked much criticism. The recommendations of the Judicial Commission which reported to

Government in 1936 are eloquent upon such matters. These features, however, are not peculiar to the administration of justice in Ceylon and, from time to time, have been the subject of consideration in England, the United States of America and in India. In England a strong Committee of Lawyers and Judges, with Sir Raymond Evershed, the Master of the Rolls as Chairman, was appointed in April, 1947, to consider problems similar to those entrusted to us. In India the High Courts Arrears Committee which had only a limited field of investigation recommended in 1950 measures to speed up litigation. In the United States of America constant efforts are being made by the Bench and Bar to improve procedure and reduce delays in litigation. The American Bar Association wrote not long ago':

"In our form of government no institution is more fundamental than the Courts. Unless our courts can be kept strong and high in public esteem, individual liberty cannot long endure. For this reason, then, the improvement of judicial procedure is not an unimportant side issue, but is vital to the defence of democracy".

-words equally applicable to our young Dominion. It should be well therefore to realise that it is of paramount importance to our democratic way of life that the prestige and efficiency of the Courts should always be maintained at such high level as to inspire and retain the confidence of the citizen in the administration of justice.

6. Our terms of reference require us to investigate both the procedure and the administration of the Civil Courts. We shall deal with each of these matters separately. In Part I we shall examine the main defects in the existing Civil Procedure Code and recommend the changes which should improve and modernize Civil Procedure; in Part II we shall consider the constitution of the Civil Courts and the problems connected with the manner in which the business is conducted and suggest reforms which should improve the machinery of justice in civil disputes.

PART I

THE CIVIL PROCEDURE CODE

CHAPTER I-THE FORM OF THE CODE

7. The Procedure of the Civil Courts is mainly regulated by the Civil Procedure Code and by some Rules of Court framed under the provisions of Section 49 of the Courts Ordinance. There are also special provisions regulating the procedure in Rural Courts which have been made under the provisions of section 52 of the Rural Courts Ordinance, No. 12 of 1945; we shall advert to these rules of procedure when we deal with Rural Courts. 8. The present Civil Procedure Code was enacted as far back as 1889. Prior to this enactment the procedure of the Civil Courts was governed by Rules of Court founded on the Charter of 1833. This Charter abolished and replaced the earlier Charters which provided "for the due administration of justice" in Ceylon. In 1876 Sir Richard Cayley who was then Queen's Advocate introduced a Bill "to amend and consolidate the laws of this colony relating to the administration of justice and the mode of procedure in civil and criminal cases". It was in due course read a second

(1) Improvement of the Administration of Justice Handbook, 1949.

(2) Vide Section 51 of the Charter of 1833.

time and referred to a sub-committee. Meanwhile, Sir John Phear, who arrived in Ceylon as Chief Justice, undertook the drafting of a comprehensive administration of justice code, including an ordinance on civil procedure. The work was only partially completed and this completed fragment, which had been revised by a Commission appointed by Sir James Longdon and subsequently revised by Sir Richard Cayley, was submitted to the Legislative Council in 1879 by Mr. Ferdinands Acting Queen's Advocate. Nothing appears to have been done to advance the bill. In the following year Sir Bruce Burnside Queen's Advocate reintroduced the same measure and another Committee of the Legislative Council was appointed. This Committee "neither reported nor drafted anything and the Code was allowed to vanish out of sight" until the task was entrusted in June 1887 to another commission of which Mr. Samuel (later Sir Samuel) Grenier, Attorney-General, was Chairman. The task which was commenced in 1876 was completed by the Grenier Commission only in 1889. The following statement by the Attorney-General in his Report on the Act of 1889 is not without interest:

the existing Rules and Orders formulated on our charter of 1833 were so defective, imperfect and unscientific as to be obviously unsuited for re-enactment. Our Draft Code of 1879 had mainly been founded on the Indian Civil Procedure Act of 1877. The delay which has occurred of ten years has not been without some advantage, for it has enabled us to consult the improved Indian Act of 1882, which entirely repealed the previous Act of 1877; the comprehensive and elaborate Civil Procedure Code of New York, which was completed only in 1880; the English Rules of Court framed in 1883 and 1885 under the Judicature Acts; and also the Indian Civil Procedure Code (Amendment) Act, which was passed so recently as March, 1888. "1

9. The framers of the Code claimed neither perfection nor finality for it as is evident from the concluding part of the Attorney-General's report which reads as follows:

"After repeated attempts and repeated disappointments, a Code of Civil Procedure has at last been added to our Statute Book. I do not claim for it either perfection or finality, but I do ask that it be accepted as the framework of a law which may hereafter be added to and improved.""

But the Code has not undergone any substantial amendments or alterations since its enactment in 1889. This does not mean that no changes have been found to be necessary. From time to time the Supreme Court has drawn attention to several defects and shortcomings in the Code but these do not appear to have received legislative notice. A few instances taken at random will illustrate what we are seeking to emphasize :

(a) In July 1898 the Supreme Court considered the provisions of sections 325 and 326 and decided that the omission of the word "order" in section 325 made disobedience to an 'order' as distinct from a 'proprietory decree" not summarily punishable under the section. Lawrie Ĵ. said “the code is imperfect ", and Bonser C.J. said "Whatever the intention of the Legislature may have been, in the present case it seems to me that it has not expressed its intention, in unmistakable terms, There is no trace of any effort having been made since then to consider the effect of this decision and introduce legislation to remove the difficulties raised by the pronouncement of the Supreme Court.

(1) & (2) Report of the Attorney-General on The Ceylon Civil Procedure Code, 1889 ". (2) De Silva v. De Silva (3 N. L. R. 161).