BEATRICE DEP v. LALANI MEEMADUWA

036-SLLR-SLLR-1997-V3-BEATRICE-DEP-v.-LALANI-MEEMADUWA.pdf


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Beatrice Dep v. Lalani Meemaduwa
379
BEATRICE DEP
V.
LALANI MEEMADUWA
COURT OF APPEAL.
ISMAIL, J. ANDYAPA, J.
C.A. 188/90(F)
MC. MT. LAVINIA 517/ZL
JULY 11, 1997, SEPTEMBER 19. 1997.
Civil Procedure Code section 773 – Transfer of premises by judgment Creditorafter judgment – Title paramount – Defendant becoming owner – Admission offresh evidence in appeal.
The plaintiff-respondent instituted action against the defendant-petitioner seekinga declaration of title and ejectment of the defendant-petitioner from the premisesin question. Judgment was entered in her favour. Writ pending appeal wasallowed but the order was set aside by the Court of Appeal. After judgment theplaintiff -respondent (through her Attorney) gifted the premises to her father whoin turn gifted same to the petitioner.
The petitioner sought to have documents which relate to the transfer of title to heradmitted as evidence at the hearing of the appeal.
Held:
In order to justify the reception of fresh evidence or a new trial three conditionsmust be fulfilled:
It must be shown that the evidence could not have been obtained withreasonable diligence for use at the trial.
Evidence must be such that if given it would probably have an importantinfluence on the result of the case, although it need not be decisive.
The evidence must be such as is presumable to be believed or in otherwords it must be apparently credible although it need not beincontrovertible.
The deeds and documents sought to be admitted at the hearing of the appealdo not touch the matters at issue on which the judgment was delivered at the trialcourt and these documents would have no effect on the judgment in appeal.
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APPLICATION filed to admit additional documentary evidence at the hearing ofthe appeal in terms of section 773 of the Civil Procedure Code.
Cases referred to:
Hettiarachchi v. Mary Motha CA 1329/82 – CALA 141/82, – CAM 5.11.86.
Carolis v. Piyadasa – CALA 182/90, – CAM 16.7.93.
Jandiris v. Deva Renta – 33 NLR 200.
Piyaratne Unnanse v. Nandina – 37 NLR 109.
Endiris de Silva v. Aronolis 33 – CLW 39.
Ramasamy v. Fonseka – 62 NLR 90.
Lada v. Marshall – 1954, 3 All ER 745 at 748.
Ratwatte v. Bandara – 70 NLR 231.
Ms. Maureen Seneviratne, PC. with Shammil Perera for defendant-appellant-petitioner.
Tilak Marapone, PC. with N. Ladduwahetty and J. Fernando for plaintiff-respondent-respondent.
Cur. adv. vult.
October 3rd, 1997.
ISMAIL, J.
This order relates to two applications filed dated 8/11/96 and2/6/97 by the defendant-appellant-petitioner to admit additionaldocumentary evidence at the hearing of this appeal in terms ofsection 773 of the Civil Procedure Code.
The plaintiff-respondent-respondent (hereinafter referred to as the“respondent") filed an action No. 517/ZL in the District Court,ML Lavinia against the defendant-appellant-petitioner {hereinafterreferred to as the "petitioner") seeking, inter alia, a declarationof title to the premises No. 30/1, de Saram Road, Mt. Laviniaand ejectment of the petitioner from the said premises. Judgment
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was entered against the petitioner after trial on 6.6.90 and theappeal from the said judgment is now ready to be taken up forhearing.
Pending this appeal the respondent filed an application inthe District Court for execution of writ and by his order dated 14.3.91the learned District Judge had allowed the application afteran inquiry,
The petitioner filed an application in revision No. 239/91 togetherwith a leave to appeal application No. 58/91 against the saidorder. The order dated 14.3.91 allowing writ of execution was setaside and the learned District Judge was directed to reconsider theapplication as it was submitted that the premises have now beentransferred to the petitioner by way of gift upon deed No. 8814dated 7.5.91,
Consequent to this order the petitioner filed papers in the DistrictCourt setting out the following matters for consideration at the fresh
inquiry;
"that the premises in suit in the case had been gifted bythe respondent to the respondent's father Giridara ArachigeMartin Wijeratne by deed of gift numbered 8763 dated 25thFebruary '91 and attested by Lakshman Panditaratne Notary
Public.
that the said Giridara Arachige Martin Wijeratne had thereafterby deed of gift numbered 8814 dated 7th May '91 attested byLakshman Panditaratne Notary Public gifted the premises in suitto the petitioner.
that the respondent had given her power of attorney numbered12253 attested by George Valentine Bateson of Hertfordshire toone Lalith Wijeratne to execute the aforesaid deed of giftnumbered 8763 dated 25th January 1991."
The petitioner has also produced these documents but the learnedDistrict Judge dimissed her application after an inquiry by his order
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dated 27.10.94. The respondent then applied for the execution of writwhich was allowed and the petitioner was ejected from the premiseson 18.11.94.
The petitioner filed an application No. 779/94 to have the saidorder dated 27.10.94 revised but later withdrew it and filed a freshrevision application No. 149/95. This Court allowed the application byits judgment dated 6.10,95 and set aside the order of the DistrictJudge allowing writ and directed that steps be taken to restore thepetitioner to possession of the premises.
The respondent failed in his attempt to obtain special leave toappeal to the Supreme Court in application No. SC/Spl/LA 324/95against this judgment.
It appears that Giridara Arachige Martin Wijeratne gifted thepremises in suit No. 30/1, de Saram Road, Mt. Lavinia to the petitionerby deed No. 8814 dated 7.5.91 reserving to himself the life interest.By deed No. 1573 dated 12.3.97 attested by U.A. PremasunderaNP he has cancelled and revoked the life interest which hehad reserved for himself. The petitioner now seeks to havethe aforesaid documents marked Y1 and Y4 which relate to thetransfer of title to her admitted as evidence at the hearing ofthis appeal.
It was submitted on behalf of the petitioner that she couldnot produce the aforesaid deeds and documents at the trial asshe had obtained title to the premises after the judgmentwas delivered but before the execution of the decree. It was furthersubmitted that these documents which now establish atitle paramount in the petitioner were considered by this Court inthe previous revision applications and that justice of the caserequires that this Court accept the aforesaid documents atthe hearing of this appeal in terms of section 773 of the CivilProcedure Code.
Learned Counsel for the petitioner relied on the judgment of thisCourt in Heitiarachchi v. Mary Motha.m The question that arose for
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consideration in that case was whether loss of title pendente lite andthe consequent denial of the right of the execution of the decree isapplicable where the loss of title takes place after decree but beforeits execution. It was held that as the plaintiff's rights have becomeextinguished by title paramount pendente lite, "it must necessarilyaffect the plaintiff's further interest in the action and the right to theexecution of the decree".
In Carolis v. Piyadasa<2> this principle was extended and it washeld that "upon loss of title pendente lite there should be a similarconsequence in an action based on letting and hiring, as in the caseof an action for vindication, in the absence of any other interest of thelandlord in the property".
Learned Counsel for the respondent had objected to thesedocuments being admitted at the hearing of this appeal.He submitted that the views expressed in these judgmentswere relevant to the inquiry into the application for the executionof writ. However, they have no relevance to the present applicationby which it is sought to admit title deeds to the premises insuit executed in favour of the petitioner after judgment has beenentered granting the respondent declaration of title to thesaid premises.
The relevant provisions in section 773 of the Civil ProcedureCode empower the Court of Appeal, where necessary, to receive andadmit new evidence additional to, or supplementary of the evidencealready taken in the original Court touching the matters at issue asjustice may require. Documentary evidence touching the matters atissue have been admitted in terms of these provisions in certaininstances.
In Jandiris v. Dev a Renta™, a deed No. 2898 of 19.10.1848 (XI)was not produced at the trial and its absence led to trial judge toraise the relevant question as to how T, a usufructuary mortgagee in1848 could convey a dominium to M in 1855. After the judgment theplaintiff searched the record in another District Court action anddiscovered the deed and applied for leave to produce it at the
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hearing of the appeal. This deed established that T had the right toconvey to M in 1855 one fourth of the land. The Court decided toadmit the document under this power which was then referred to insection 40 of the Courts Ordinance No. 1 of 1889. MacdonnellCJ stated as follows: “Certainly, this power must be exercised withevery caution, partly because the Supreme Court is not incivil matters a Court of trial but of appeal and review, and chieflyperhaps because of the danger that evidence not produced belowbut sought to be produced to it for the first time, will be manufacturedfor the occasion. This is a very real danger which was fully beforeus in considering the application to admit X, but we consider that inthe present case the danger was reduced to a minimum. For onething, the evidence was documentary and not oral, and for another,the document sought to be put in did not come from the custody ofthe plaintiffs or from anyone connected with them but from thecustody of a Court of record and from among the records ofthat Court”.
In Piyaratne Unnanse v. Nandina'4', an official document theexistence of which was not known to a party during the trial wasadmitted in appeal. In Endiris de Silva v. Aronolis(5 the records oftwo Village Tribunal cases relevant to the subject-matter of the appealand discovered after the appeal had been filed were permitted to beadmitted.
However, the matter put in issue in the present case upon thepleadings filed in December 1980 was whether the plaintiff-respondent is the owner of the premises bearing assessmentNo. 30/1, de Saram Road, Mt. Lavinia under and by virtue of deedNo. 346 dated 22.8.73 attested by S. Gnanapandithen NP. This issuehas been answered in the plaintiff-respondent’s favour and judgmenthas been entered for her on 6.6.90 as prayed for in his plaint. Thedeed of gift No. 8814 by which the petitioner now claims title to theproperty has been executed on 7.5.91. This deed and the otherdocuments sought to be admitted as evidence at the hearing of thisappeal would have no impact on the judgment to be consideredin appeal.
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In Ramasamy v. Fonsekait was held that fresh evidence wouldnot be permitted to be adduced unless it is of a decisive nature; itmust be such that, on a new trial being ordered, it would almostcertainly prove that an erroneous decision had been given.
In Lada v. Marshallm at 748, Denning, L.J. said, “In order to justifythe reception of fresh evidence or a new trial, three conditions mustbe fulfilled: first, it must be shown that the evidence could nothave been obtained with reasonable diligence for use at thetrial: second, the evidence must be such that, if given, it wouldprobably have an important influence on the result of the case,although it need not be decisive: third, the evidence must be such asis presumably to be believed, or in other words, it must be apparentlycredible, although it need not be incontrovertible”. These conditionswere taken into account and applied in Ratwatte v. Bandara'fi>.
I am of the view that the deeds and documents sought tobe admitted at the hearing of this appeal do not touch the mattersat issue on which the judgment was delivered in the trial court andthat these documents would have no effect on the judgmentin appeal.
For these reasons the application to admit the deeds anddocuments Y1 to Y4 referred to in the two applications filed dated
and 2.6.97 is refused.
YAPA, J. -1 agree.
Application refused.