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Present : Lascelles C.J.
BANDITA v. UXGU et al.
112— C. H. Iiegalla, 10,679.
EvidenceOrdinance,s.68—Proof of documentrequiredby law lobe
attested—Witnesses todocument notto befound—Evidence to
satisfy the Court that such witness is not to be found.
Ifa documentisrequited by law .to beattested,it shallnotbe
used as evidence until one attestingwitness at least has .been
called for the purpose of proving its execution, if there be anattesting witness alive, and subject to the process of the Court andcapable of giving evidence.
Theproperevidencethatawitness cannot be found isthat the
personwhoseduty itwastocall him has made use ofhis legal
powersundersection131ofthe Civil Procedure Code.If it js
proved that the Fiscal has been unable to. serve the summons or toproduce the witness on a warrant, it would be sufficient proof thathe is not to be found.
Theevidence of oneoftheparties to the action wasconsidered
not sufficient to prove that the witness cannot be found.
HE facts are set out in the judgment.
Sandrasegra, for the appellants.
Bawa, K.C., for the respondent.
May 29, 1912. Lascelles C.J.—
In this case the only issue is whether deed No. 41,375 was executedby one Dingiria. The learned Commissioner of Bequests, afterhearing all the avidence available, decided that, on the materialsbefore him, there was just sufficient evidence to prove the executionof the deed by Dingiria. Against this finding the defendants nowappeal, on the ground that the deed was not admissible undersection 68 of the Evidence Ordinance. That section is in thefollowing terms:—“ If a document is required by law to be attested,it shall not be used as evidence until one attesting witness at leasthas been called for the purpose of proving its execution, if therebe an attesting witness alive, and subject to the process of theCourt and capable of giving evidence.” It is common ground thatone of the attesting witnesses, Sendia, is now alive, and the defendantsmaintain that there is not sufficient evidence to prove that he cannotbe found so as to make the deed provable under section 69. Theplaintiff called a certain amount of evidence to show that he bad
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searched'for Sendia; and that he had been unable to find him, andthe Commissioner of Bequests Relieves that the plaintiff had donehis best to find the man; and he throws out the opinion that Sendiahas been purposely ‘kept out of the way, and that he will appear inhis village as soon as the case is decided. Now, the Commissionerof Bequests may be perfectly right in the opinion that he has formedas . to the attempt made to find the man Sendia. But the coursethat he has taken seems to me to be a highly dangerous one.. Ifthe evidence of one of the parties to an action is accepted as sufficientto prove that the witness to a deed*'cannot be found, a wide openingwould be made for the evasion of the ^wholesome rule laid down bysection 68 of the Evidence Ordinance! In my. opinion the bestevidence and the proper evidence that a witness cannot' be foundis. that the person whose duty it was to ball him has made use ofhis lggal powers under section 131 of' the Civil Procedure Code.If these powers have been exercised, and if it is proved that theFiscal has been unable to serve the summons or to produce thewitness on a'warrant, it would be sufficient proof that he is not tobe found for the purpose of* section 68. I do not think that theCommissioner of Bequests ought to hqve been satisfied with theevidence produced in this case. I. think the fairest course would beto set the judgment aside, and to allow the plaintiff an opportunityof exercising his powers under section 131 of the Civil Procedure■Code to procure the attendance of this witness', and if he is unableto do so, then the Commissioner will be at liberty to decide thecase on the evidence already recorded. The appellant, I think is,entitled to the costs of the appeal, and the other costs must abidethe result of the. trial.
BANDIYA v. UNGU et al