Sri Lenka Law Reports
 3 Sri LR.
COURT OF APPEAL.
HECTOR YAPA. S.
U. DE Z. GUNAWARDENA. J.
CA NO. 266/96.
REV D.C.KANDY 2175/RE.
Civil Procedure Code – Section 150 – Catting evidence in Rebuttal
In an application to revise an Order allowing the plaintiff-respondent to callevidence in rebuttal.
As a rule the plaintiff in a case is entitled to lead evidence in rebuttal only to meeta situation that has arisen unexpectedly, an obvious instance would be where theplaintiff having closed his case is faced with evidence of a decisive nature arisingex tmproviso which reasonably could not have been foreseen.
Per Gunawardena, J.,
‘In practice such a situation, that is where either the plaintiff or the defendantwould be permitted to lead evidence in rebuttal is rarely to be met with in a civilaction, since a party to an action couldn't have led at the trial any evidenceexcept to support the case enunciated in his pleadings and which his opponentwas prepared to meet. In other words as stated in explanation 02 appended toSection 150 Civil Procedure Code, evidence must reasonably accord with party'spleadings and no party can set up at the trial a case which is materially differentfrom that, which he has placed on record.*
APPLICATION in Revision from the Order of the District Court of Kandy.
Case referred to:
1. Jaganadan Pillai v. Perera – 5 N.L.R. 95Manohara R. de Silva for defendant-petitioner.
Upati Welaratne with Anil Gunawardena for plaintiff-respondent.
Cur. adv. vult.
Hitdon v. Munaweera (U. da Z. Gunawardena, J.)
U. DE Z. GUNAWARDENA, J.
This is an application seeking to revise orders, dated 27.04.1995and 25.03.1996 respectively, made by the learned Additional DistrictJudge allowing the plaintiff-respondent to call evidence in rebuttal.
The learned Additional District Judge had on 27.04.1995 madeorder allowing evidence in rebuttal to be adduced without knowing orascertaining in advance the nature of the evidence that was going tobe led in rebuttal or the points or aspects in the defendant’s evidenceto which such evidence in rebuttal would pertain or even consideringthe question whether the circumstances of the case warranted anorder permitting the plaintiff-respondent to lead evidence in rebuttal.The learned Additional District Judge seems to have been obliviousto the fact that the plaintiff in a case cannot lead evidence in rebuttalas a matter of right. Of course, the defendant-petitioner had originallyacquiesced in or had not objected to the plaintiff-respondent'sapplication to call evidence in rebuttal although he (the defendant-petitioner) had altered his stance and had objected, on a later date,to such evidence being led as was clear from the said order dated
which order shows that the learned judge himself had,upon reconsideration of the matter, grown somewhat sceptical aboutthe soundness of his previous order dated 27.04.1995 whereby hehad originally allowed the application of the plaintiff-respondent tolead evidence in rebuttal but, perhaps, rightly, stopped short ofsetting aside his own earlier (wrong) order.
This action had been filed by the plaintiff-respondent who was thelandlord seeking to eject the defendant-petitioner who was the tenantin respect of the premises described in the schedule to the plaint.One of the grounds, being also the main one, on which the actionwas rested was that the defendant-petitioner had caused damage tothe premises in suit. At the trial, a suggestion had been made undercross-examination to a witness, viz. a grama-sevaka, who had beencalled as a witness for the plaintiff-respondent – the suggestion beingthat the damage to the premises in suit was caused by explosionsthat were caused by the authorities in connection with Mahapola
Sri Lanka Law Reports
/1997] 3 Sri LR.
Celebrations in 1982. The material before us is not all that specificand is somewhat vague but it looks as if the plaintiff-respondent hadsought to call evidence in rebuttal to erase the impression created bythat suggestion made to the grama-sevaka – a suggestion, be itnoted, that had been made before the close of the case of theplaintiff-respondent. It was admitted between the parties at thehearing before us that no evidence, whatsoever had been adducedat the trial, as part of the defendant’s case, to the effect that anydamage to the premises in question had been caused by Mahapolaauthorities.
At the argument before us the learned Counsel for the plaintiff-respondent submitted thus; ”… object in seeking permission to leadevidence in rebuttal is to show that the damage to the house inquestion had been caused by the defendant herself and by nobodyelse".
That the defendant-petitioner caused damage to the building inquestion is the major, if not. virtually the sole ground, on which theplaintiff-respondent's action was initially based and as such noquestion of leading evidence in rebuttal to support that position canever arise. The plaintiff-respondent, being the party beginning at thetrial, had to lead all the available evidence, at the very outset, toestablish the grounds stated in the plaint or the cause of actionpleaded therein – if for no other reason than that the onus of provingthe grounds relied upon by him (the plaintiff) was on him. The factsnecessary to establish the cause of action set out in the plaint (unlessadmitted in the answer) have, of necessity, to be proved by theplaintiff-respondent as part of his case and not after the defendanthad led his evidence and closed his (defendant's) case. As a rule theplaintiff in a case, is entitled to lead evidence in rebuttal only to meeta situation that has arisen unexpectedly, say, on the evidence led bythe defendant, a position or a case which couldn't have beenenvisaged on the pleadings of the defendant. An obvious instancewould be, where the plaintiff having closed his case is faced withevidence of a decisive nature arising ex improviso which reasonablycould not have been foreseen. Jaganadan Piliai v. Perera™ would beinstructive in this regard – that being on action to recover the balance
Hildon v. Munaweera (U. deZ Gunawardena, J.)
of the price of a house which was sold by the plaintiff to thedefendant. In that case the defendant (in the circumstances of thatcase being the party beginning) to support his plea of payment readin evidence the conveyance wherein the plaintiff had acknowledgedthe receipt of the full consideration and closed his case. Thereupon,plaintiff proved by witness and documents that the balance was notreally paid. After the plaintiff s case was closed the defendantproposed to call evidence in rebuttal.
Held – that as the onus was on the defendant to prove payment, itwas his duty to adduce all the evidence he had and that the DistrictJudge having in the exercise of his discretion refused to allow thedefendant to call evidence in rebuttal, there appeared no reason tointerfere with it.
In the case in hand, too, as the onus was clearly on the plaintiff-respondent to prove the fact or facts constituting the cause of actionviz., damage to the house in suit, he (the plaintiff-respondent) cannotbe afforded a second spell or turn to which it will amount if theplaintiff-respondent is allowed an opportunity to lead evidenceregarding a matter with respect to which the plaintiff, in fact, hadalready led evidence at the outset.
In practice, such a situation that is, where either the plaintiff or thedefendant would be permitted to lead evidence in rebuttal, is rarely tobe met with in a civil action, since a party to an action couldn’t haveled at the trial, any evidence except to support the case enunciatedin his pleadings and which his opponent was prepared to meet. Inother words, as stated in explanation 02 appended to section 150 ofthe Civil Procedure Code, Evidence must reasonably accord withparty's pleadings and no party can set up at trial a case which ismaterially different from that which he has placed on record.
So far as I can see, in this case, inasmuch as the position thatMahapoia authorities or any third party caused damage to thebuilding is not pleaded in the answer, the learned District Judgecould have allowed evidence in rebuttal to be led, perhaps, only inone of the two rare situations that is likely to arise and described
Sri Lanka Law Reports
[1997} 3 Sri L.R.
below: (a) if the defendant-petitioner had been permitted by thelearned District Judge to lead evidence to show that damage, if any,to the building in question had been caused by Mahapola authorities(despite the fact that he had not pleaded so in his answer) or (b) ifthe defendant had after the close of the plaintiff-respondent's case,amended the answer to plead so, that is, that the damage wasattributable to the acts of the authorities that held the MahapolaCelebrations or the festival.
It will be seen that neither of the above two situations had arisen inthis case for it was admitted by both Counsel, at the hearing of thisapplication, that the defendant-petitioner had not led any evidence toshow that the damage, if any, was caused not by herself but byMahapola authorities. In fact, it is to be observed that the position ofthe defendant-petitioner, stated in her answer, was that the buildinghad not suffered any damage as was the position even according tothe evidence led for the defence.
For the aforesaid reasons the said order of the learned AdditionalDistrict Judge dated 27.04.1995 permitting the plaintiff-respondent tolead evidence in rebuttal is hereby set aside for the said order iswrong as wrong can be.
For the sake of completeness, the subsequent order dated
which had been made by the learned Additional DistrictJudge consistently with the previous order dated 27.04.1995 is alsoset aside.
YAPA, J. -1 agree.
HILDON v. MUNAWEERA