K. D. DE SILVA, J.—Seebert Silva v. Aronona Silva
Present: K. D. de Silva, J., T. S. Fernando, J., and Sinnetamby, J.S. SEEBERT SILVA, Appellant, and F. ARONONA SILVAand 4 others, Respondents
S. C. 182—D. C. Panadura, 3,189jl34A
Civil Procedure Code—Section 92—Journal entries—Presumption as to their correct-ness—Evidence Ordinance, s. Hi.
The Court is entitled to presume that the journal entries made in a case incompliance 'with the requirements of section 92 of the Civil Procedure Codeset out the sequence of events correctly.
•A APPEAL from a judgment of the District Court, Panadura.
Sir Lolita Bajapakse, Q.G., with B. Senaratne and D. C. W-Wickremasekera, for the plaintiff-appellant.
G. P. J. Kurubulasuriya, with G. Chellappah, for the 1st, 2nd and 5thdefendants-respondents.
Cur. adv. vult.
December 3, 1957. K. D. de Silva, J.—
The question of fact which comes up for determination on this appealis whether or not the plaint in this action which is one instituted undersection 247 of the Civil Procedure Code was filed in Court on September11, 1951. The plaintiff-appellant who is the judgment-creditor in D. C.Kalutara Case No. 577 took out a writ of execution against Seemel thepresent 3rd defendant who was the judgment-debtor in that case torecover a sum of Rs. 1,026 the amount due on the decree and seized theland called Panwilakumbura belonging to the 3rd defendant. Thereuponthe 1st and 2nd defendants who are the wife and minor son respectivelyof the 3rd defendant claimed the property as belonging to them. Thisclaim was upheld on August 31, 1951. Thereafter the plaintiff institutedthis action. The 5th defendant is the guardian-ad-litem of the 2nddefendant. At the trial the objection was taken that this action wasnot instituted within fourteen days as contemplated by section 247.
K. D. DE SILVA, J.—Sedmt Silva v. Aronona Silva
The learned District Judge after hearing the Counsel for both partiesupheld the objection and dismissed the plaintiff’s action with costs. Thisappeal is from that order.
Sir Lalitha Rajapakse who appeared for the plaintiff-appellant con-tended that the plaint which on the face of it bears the date September11,1951, was in fact tendered to Court on that day although it bears thedate stamp of November 29, 1951. If that contention is correct it isconceded by Mr. Kurukulasooriya the Counsel for the 1st, 2nd and 5threspondents that the action was instituted within time. But Mr. Kuru-kulasooriya submitted that this plaint was presented to Court only onNovember 29,1951. At the trial this question was tried as a preliminaryissue but neither party called any witnesses although certain documentswere marked in evidence. The learned District Judge held that thisplaint was in fact filed in Court only on November 29, 1951.
Mr. Tudor A. Perera the Proctor for the plaintiff filed in Court themotion P2 dated September 11,1951, which reads, “ I file my power ofappointment as Proctor for S. Seebert Silva together with plaint, petitionsupported by an affidavit and for the reasons stated therein move thatPranciscudura Aronona Silva the 2nd respondent be appointed guardian-ad-litem over the minor Sandradura Sumanasena Silva the 1st respondentfor all purposes of this action”. This motion has been journalised underthe date 11 September, 1951. This journal entry which is very relevantreads as follows :—
“ Mr. Tudor A. Perera files appointment and plaint together with
petition and affidavit and moves that P. Aronona Silva be appointed
as guardian-ad-litem over the minor Sandradura Sumanasena Silva.”
Against this entry appear the words “ enter and issue O/N on respondentsfor 24.10.51”. These words were presumably written by an officerof the Court for the purpose of obtaining the signature of the DistrictJudge to the proposed order. But the District Judge—he is not thesame Judge who tried the case—deleted the words “.'on respondentsfor 24.10.51 ” and substituted therefor in his own hand writing thewords “ if draft plaint is filed ”. It is important to observe that thisjournal entry is made on a form in which the words “ files appointmentand plaint together with documents marked ” appear in print and ofthese the last two words “ documents marked ” have been scored offby drawing a line over them in ink. This too appears to have beendone by the officer who made the journal entry. The next journalentry is dated November 29,1951, and is in the following terms :—
“ Proctor for plaintiff files draft plaint and moves for a date to issueOrder Nisi”. This motion has been allowed by the District Judge.This journal entry as originally written had the word “ amended ”but it has been scored off and the word “ draft ” has been enteredabove it.
This same alteration occurs in the corresponding motion also. Itwould appear that an officer of the Court made this correction. Thedraft plaint which is stated to have been filed on November 29, 1951, is
K. D. DE SILVA, J.—Seeberl Silva v. Aronona Silva
not present in the record now. There are two factors in support of theSubmission made by Mr. Kurukulasooriya. The first is the date-stampon the plaint and the second is the absence of the draft plaint filed onNovember 29, 1951. The learned District Judge also thought that thefirst journal entry which directed that the decree nisi be issued after thedraft decree is filed was also a point in favour of the respondent. Inone sense it is so but the fact that the District Judge who corrected theminute made by the clerk did not strike off the printed word “ plaint ”is a point in favour of the appellant. It is not possible to say whyexactly the learned Judge directed that a draft plaint be filed. Section493 of the Civil Procedure Code which governs the appointment of aguardian-ad-litem does not require that a draft plaint should accompanythe application for such appointment. It may be possible that the DistrictJudge erroneously believed that a draft plaint too was necessary eventhough the plaint itself had been filed.
As against the points in favour of the respondents there are, on theother hand, several facts and circumstances which clearly support thecontention that the plaint was filed in Court on September 11, 1951.They are (1) the first journal entry in the case and the connected motion,(2) the date of the cancellation of the stamps on the plaint and the affixingof the stamp for binding fee on it (3) the journal entry of November 29,1951, and the motion on which it is based, and (4) the entry in the recordof the stamp duty.
The first journal entry which is dated September 11,1951, clearly statesthat the plaint was filed on that day together with all papers. Thisentry is supported by the motion tendered to Court by the plaintiff’sProctor. It is most unlikely that if the plaint was not tendered on thatdate the Record-keeper and the subject clerk would have failed to detectit. That the learned District Judge did not lightly sign the journalis borne out by the fact that he altered the minute made by the clerk.He must have done so after going through the papers filed by the Proctor.If in the course of checking, the Judge found that the plaint had not beenfilled, he would certainly have struck off the printed word “ plaint ” inthe journal.
The stamps affixed to the plaint have been cancelled on September 111951. If, as the learned District Judge thought, that this plaint wastendered to Court only on November 28,1951, how is it that the bindingfee stamp is affixed to it and not to any paper which was admittedlyfiled on September 11,1951 ? It has not been sugges ted that when acase is instituted the Court would accept the papers even though the stampfor binding fee is not tendered. The presence of this stamp on the plaintand the absence of it on any other paper filed on September 11, 1951, isvery strong evidence that the plaint was in fact filed on September11,1951.
The journal entry of November 29,1951, and the connected motion alsoconfirm the plaintiff’s case. The words “ amended plaint ” in that motionindicate that the plaint had already been filed. The alteration of the
K. D. DE SILVA, J.—Setberl Silva v. Aronona Silva
•word “ amended ” to “ draft ” both in the motion as well as in the journalis very significant. If in fact it was the stamped plaint that was tenderedon that day itis hardly likely that any Court clerk would describe it asa draft plaint.
In regard to the entry in the record of stamp duty the learned DistrictJudge having stated that it was made on September II, 1951, dismissedit as being of not much consequence because, there was “nothing toshow that the stamp register was entered by reference to the documents”.But this entry has in fact been made not on Sep mber 11, 1951, but onSeptember 13,1951. If it had been dated Septem. er 11,1951, one couldeven say that it was a mechanical entry made with reference only to thedate of the institution of the action. But, in view of the fact that theentry was made two days later it is almost impossible to say that theclerk who was responsible for it did not check up the stamps before makingthe entry. The learned District Judge has held that this stamped plaintwas filed only on November 11, 1951. If this view is correct then theentry in the record of stamp duty should have been made on or afterthat date and not before.
The learned District Judge commented on the fact that Mr. Tudor A.Perera the Proctor for plaintiff did not give evidence. But unfortunatelyhe has failed to consider the significance of section 92 of the Civil ProcedureCode. That section provides that with the institution of the action theCourt shall keep a journal in which shall be minuted, as they occur, allthe events in the action and that the journal so kept shall be the principalrecord of the action. A j ournal has been maintained in this action and theCourt is entitled to presume that it was regularly kept. This presumptionwhich arises under section 114 of the Evidence Ordinance is based on themaxim “ Omnia praesumuntur rite et solemniter esse acta ”. Thispresumption is of course rebuttable but the respondents, on whom isthe burden, have not placed before the Court sufficient material to rebut it.The relevant journal entries in the case support the contention that theplaint in this case was filed on September 11,1951. The date-stamp on theplaint is by no means conclusive. Although date-stamping is extremelydesirable and must be accurately done, yet I must observe that there isno provision in the Civil Procedure Code which requires it. The draftplaint filed on November 29, 1951, may well have been misplaced.
For the reasons given above I allow the appeal with costs in bothCourts. The case is remitted to the District Court for trial on the otherissues arising between the parties.
T. S. Fernando, J.—I agree.
Sinnetamby, J.—I agree.
S. SEEBERT SILVA, Appellant, and F. ARONONA SILVA and others, Respondents