025-SLLR-SLLR-2006-V-2-AMARASEKERA-vs.-MOHAMED.pdf
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Amarasekera vs Mohamad
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AMARASEKERAVSMOHAMEDCOURT OF APPEALWIMALACHANDRA, J.,
CALA105/2002 (LG).
DC COLOMBO 9174/RE.
AUGUST 27.2004.
AUGUST 27,2004.
JANUARY 25.2005.
JUNE 9. 2005.
Evidence Ordinance, Sections 3 and 7 – Fact in issue – Relevant facts to provea fact in issue – Housing and Town Improvement Ordinance – Unauthorizedconstructions – Rent Act, No. 07 of 1972 – Facta probans – Factum probandum- Whether evidence regarding former tenants is a relevant fact to prove the factin issue, when issue is whether the premises were constructed before theHousing Development Ordinance came into operation ?
The plaintiff-respondent instituted action against the defendant respondent forejectment from the premises in suit on the ground of reasonable requirement.The plaintiff pleaded that the premises was an unauthorized premises underthe provisions of the Housing and Town Improvement Ordinance and hencethe provisions of the Rent Act would not apply. After the plaintiff’s case wasclosed and when leading the defendant's evidence his Counsel questionedthe defendant about the former tenants of the premises in suit. This wasobjected to on the ground that no issue had been raised in respect of theprevious tenants and also on the ground that no questions on that matter hadbeen put to the plaintiff when he was giving evidence. This objection wasupheld by Court. The defendant-petitioner sought leave to appeal from thesaid order with leave being granted.
HELD:
The fact in issue in this case is whether the premises in suit was inexistence before the Housing and Town Improvements Ordinance cameinto operation.
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Sri Lanka Law Reports
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Per Wimalachandra, J.
The fact that there had been tenants in the said premises before the saidOrdinance came into operation is a relevant fact. In my mind the two facts arerelevant to each other and it falls within the definition of relevance.
The word “relevant” means that any two facts to which it is applied areso related to each other that according to the common course of eventsone taken either by itself or in connection with other facts prove orrenders probable the past, present or future existence or non existenceof the other.
In the instant case the fact in issue is whether the premises in suit wascontracted before the Housing and Town Improvement Ordinance cameinto operation (factum probandum) this fact intended to prove the factin issue is whether the tenants had been in the premises before thesaid Ordinance came into operation which is relevant to prove the factin issue (facta probans).
Relevance is based on reason and common sense. It is a matter ofprobability. The facts that a court has to consider are either facts inissue or relevant facts.
Evidence can be given to prove a fact in issue or to prove facts whichare so connected to the facts in issue.
Per Wimalachandra, J.
“In order to prove the fact in issue that the premises had been constructedbefore the Housing and Town Improvement Ordinance came intooperation the evidence with regard to the former tenants is a relevant factto prove the fact in issue.”
APPLICATION for Leave to Appeal from an order of the District Court of Colombowith leave being granted.
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Amarasekera vs Mohamed
(Wimalachandra, J.)
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Manohara R. de Silva for defendant-petitioner.Rohan Sahabandu for plaintiff-respondent.
Cur.adv. vult.
February 24,2006.
WIMALACHANDRA, J.The plaintiff-respondent (plaintiff) instituted this action in the District Courtof Colombo against the defendant-appellant (defendant) for ejectment fromthe premises in suit on the ground that he required the premises. Theplaintiff pleaded that the premises was an authorised premises under theprovisions of the Housing and Town Improvement Ordinance and hencethe provisions of the Rent Act, No. 07 of 1972 would not apply as a resultof the premises being unauthorised. The plaintiff also pleaded that heterminated the contract of tenancy by letter dated 27.01.1999 and sincethe defendant did not hand over the premises in vacant possession by31.03.1999 as demanded, the plaintiff instituted this action to evict himfrom the premises in suit.
At the trial, after the plaintiff’s case was closed, the defendant startedgiving evidence. In leading the defendant’s evidence when his counselquestioned the defendant about the former tenants of the premises in suit,the counsel for the plaintiff objected to the said question being put to thedefendant on the ground that the defendant had not raised an issue in thatregard and the plaintiff was not questioned about the previous tenants, thedefendant is not entitled to give evidence with regard to previous tenants ofthe premises in suit.
The Court of Appeal granted leave. The main issues were whether thepremises in suit was given to the defendant before the Housing and TownImprovement Ordinance was passed as alleged by the defendant or whetherthe premises in suit is an unauthorised building under the provisions of theaforesaid Ordinance as contended by the plaintiff.
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Evidence can be given to prove a fact in issue in a case or to prove factswhich are so connected to the facts in issue. Section 5 of the EvidenceOrdinance states thus:
“Evidence may be given in any suit or proceeding ofthe existence or non-existence of every fact in issue andof such other facts as are hereinafter declared to berelevant and of no others.”
. Section 3 of the Evidence Ordinance states that “one fact is said to berelevant to another when the one is connected with the other in any of theways referred to in the provisions of the Ordinance relating to the relevancyof facts.”
The word ‘relevant’ “means that any two facts to which it is applied areso related to each other that according to the common course of eventsone taken either by itself or in connection with other facts proves or rendersprobable the past, present or future existence or non existence of theother.” ‘Relevant’ strictly speaking, means admissible in evidence.(Stephen’s Digest of the Law of Evidence, 12th edition, Art. 1. – quoted inthe book “Law of Evidence” by E. R. S. R. Coomaraswamy at page 58).
Relevance is based on reason and common sense. It is to be observedthat it is a matter of probability. The word “relevant” used in the EvidenceOrdinance has two meanings. They are, “as admissible” and “as
The learned counsel for the plaintiff submitted that since the defendanthad only pleaded that the premises in suit was constructed before theHousing and Town Improvement Ordinance came into operation, theaforesaid question put to the defendant by his counsel in examination-in-chief is not relevant to the fact in issue which is, whether the house wasbuilt before or after the Housing and Town Improvement Ordinance cameinto operation. Issue No. 10 has been raised on this question. It reads asfollows:
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Amarasekera vs Mohamed
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connected”. Therefore, certain facts even though logically relevant areinadmissible. They are, hearsay, opinions of witness, character etc. Thefacts that a Court has to consider are either facts in issue or relevantfacts.
With regard to this appeal the fact in issue is whether the premises insuit was in existence before the Housing and Town Improvements Ordinancecame into operation. The fact that there had been tenants in the saidpremises before the said Ordinance came into operation is a relevant fact.In my mind these two facts are relevant to each other and it falls within theaforesaid Stephen’s definition of relevance.
Section 7 of the Evidence Ordinance states thus:
“Facts which are the occasion, cause, or effect,immediate or otherwise, of relevant facts, or facts in issue,or which constitute the state of things under which theyhappened or which afforded an opportunity for theiroccurrence or transaction, are relevant.’’
Section 7 of our Evidence Ordinance is identical to the section 7 of theIndian Evidence Act. Therefore I can refer to the Indian judgments andcommentaries of Indian jurists.
Ratnalal and Dhirajlal in ‘The Law of Evidence” 19th edition, 1997 atpage 38, referring to section 7 of the Evidence Act has made the followingcomment.
“This section admits very large class of facts connectedwith facts in issue or relevant facts, though not forming
part of the same transactionEvidence relating to
collateral facts is admissible when such facts will, ifestablished, establish reasonable presumption as to thematter in dispute and when such evidence is reasonablyconclusive.’’
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The subsequent fact is relevant and these two facts are related to oneanother and it falls within the aforesaid Stephen’s definition of relevance.
The fact in issue is the fact to be proved, which is called factumprobandum, while the relevant facts are the facts by which such proof is tobe adduced which are called facta probans. In the instant case the fact inissue is whether the premises in suit was constructed before the Housingand Town Improvement Ordinance came into operation. The fact intendedto prove the fact in issue is whether the tenants had been in the premisesin suit before the said Ordinance came into operation, which is relevant toprove the fact is issue.
Section 7 of the Evidence Ordinance admits facts connected with factsin issue or relevant facts. Evidence relating to relevant facts if established,establish reasonable presumption as to the matter in dispute, the fact inissue.
In the circumstances in order to prove the fact in issue in the aforesaidissue No. 10, that the premises had been constructed before the Housingand Town Improvement Ordinance came into operation, the evidence withregard to the former tenants is a relevant fact to prove the fact in issue.
For these reasons I set aside the said order of the Additional DistrictJudge dated 05.03.2002 and direct the learned Additional District Judge toallow the appellant to adduce evidence in respect of the previous tenantsof the premises in suit. Accordingly the appeal is allowed with costs.
Appeal allowed.
District Judge directed to allow the defendant to adduce evidence in respectof previous tenants.