Beebi Johara v. Warusavithana (G. P. S. de Silva, CJ.)
has failed to hand over possession of the premises to the plaintiffand remains in unlawful possession from 1.3.86, (d) that the defendanthas failed to pay rent from September, 1985.
The defendant in his answer admitted the lease (P1) but pleadedthat the premises were governed by the Rent Act and that as a"statutory tenant" he was entitled to continue in occupation of thepremises. On this basis the defendant raised the issues Nos. 6 and7. Having admitted the lease P1, the burden was on the defendantto establish his plea that he was the "statutory tenant" of the premisesin suit. After trial, the District Court held with the defendant anddismissed the plaintiffs action. The plaintiff preferred an appeal againstthe judgment of the District Court to the Court of Appeal. The Courtof Appeal while setting aside the judgment of the District Courtproceeded to order a trial de novo. In the appeal before us, theplaintiffs complaint is against the order for a trial de novo.
Special leave to appeal to this court was granted on the followingmatters;
(a) Did the Court of Appeal err in directing a re-trial in thecircumstances of the case:
(£>) Did the Court of Appeal err in holding that the District Courtwas obliged to ensure "that inadequate information is not placedbefore it to come to its conclusions" and consequentlymisdirected itself in ordering a re-trial.
The main issue in the case was whether the premises were subjectto the provisions of the Rent Act, and whether the defendant wasin the position of a "statutory tenant" upon the expiry of the periodof 4 years set out in the lease P1. As stated earlier, the burden of •proof was on the defendant in as much as he had admitted theexecution of the lease P1 and the ownership of the plaintiff. “. . .when the legal title to the premises is admitted or proved to be inthe plaintiff, the burden of proof is on the defendant to show thathe is in lawful possession." per Sharvananda CJ, in Theivandran v.Ramanathan ChettiaP1 at 222.
Sri Lanka Law Reports
[1998] 3 Sri LR.
To prove "lawful possession" the defendant relied on "V2" and "V1"."V2“ is the Gazette notification whereby the Urban Council limits ofAnuradhapura were brought within the provisions of the Rent Act. Thedocument which was challenged by the plaintiff and strongly reliedon by the defendant both before the District Court and the Court ofAppeal was "V1". This document "V1" purported to be an extract fromthe assessment register for the year 1968 issued by the Chairmanof the Urban Council. Anuradhapura. However, as pointed out byMr. Mustapha for the plaintiff-appellant, the Urban Council-Anuradhapurawas not in existence in 1968. The reason is that by the AnuradhapuraPreservation Board Act, No. 32 of 1961, the Anuradhapura Preser-vation Board was set up with effect from 13.6.61 to administer thetown of Anuradhapura. A new Urban Council was constituted afterthe enactment of the Transfer of Powers (Anuradhapura PreservationBoard) Law No. 25 of 1974. Thus "V1" could not have been issuedby the Chairman of the Urban Council, Anuradhapura. In fact theDistrict Judge himself expressed the view that it is unclear as to whichauthority made the assessment shown in "V1" for the year 1968.Nevertheless the District Judge, relying on "V1", which specified theannual value for 1968 as Rs. 1,304 held that the premises in suitwere not "excepted premises" within the meaning of Regulation 3 ofthe schedule to the Rent Act.
Commenting on the above finding of the District Judge the Courtof Appeal stated: "The trial Judge came to his finding without ensuringthat all extracts from the Assessment Register from the year of firstassessment were produced. He also did not ascertain as to whichwas the local authority in charge of such assessment . . . After allwhen a Judge has to come to a conclusion based on the assessmentsmade by the local authorities with regard to any premises in suit, thecourt must ensure the filing of all relevant extracts from the Assess-. ment Registers. The court should not sit back and say that it wouldgive its determination only on what is placed before it. The court hasa duty to make sure that inadequate information is not placed beforeit to come to its conclusion . . .“(emphasis added).
It must be noted that the proceedings before the District Court were"adversarial" in character. The Court of Appeal was in error when it
Beebi Johara v. Warusavithana (G. P. S. de Silva, CJ.)
placed a burden on the District Court “to make sure that inadequateinformation is not placed before it. . . As a general proposition,“it is no part of a Judge's duty in a civil action to fill in the deficienciesin a case of one of the disputants by calling evidence on his own."per Nihill, J. in Rewata Thero v. HorataleP> Sections 150, 151 and163 of the Civil Procedure Code indicate that the burden is on eachparty to lead such evidence as is necessary to establish his case orhis defence, having regard to the issues upon which the case proceedsto trial.
In the present case, the burden was clearly on the defendant toestablish that his possession of the premises was lawful. For thispurpose the defendant relied largely on "V1". The Court of Appealcorrectly held that “V1" was “inadequate" to establish the case forthe defendant. The necessary consequence is that the defence setup at the trial has failed. The plaintiff having discharged the burdenthat lay upon her, was entitled to judgment. In this view of the matter,the Court of Appeal was in error in making an order for a trial denovo with all the attendant delay and expense. Already 10 years havepassed since the institution of the action and, what is more, thedefendant has failed to pay rent to the plaintiff since September, 1985.
Finally, I wish to refer to section 134 of the Civil Procedure Codeand section 165 of the Evidence Ordinance. Mr. F. C. Perera for thedefendant-respondent relied on section 134 of the Civil ProcedureCode in support of the view taken by the Court of Appeal. Section134 of the Civil Procedure Code no doubt confers on the District Courtthe power “of its own motion" to summon any person as a witnessto give evidence or to produce any document in his possession.Section 165 of the Evidence Ordinance confers inter alia the poweron the Judge to “order the production of any document or thing". Theseare "enabling provisions" intended to be cautiously and sparingly usedin the interests of justice. Neither section 134 of the Civil ProcedureCode nor section 165 of the Evidence Ordinance was meant to fillin the gaps in the presentation of its case by a party to the action.While these provisions confer a power upon the court, they do notplace a burden upon the court; they do not detract from the “adversarial"nature of the proceedings before the court.
Sri Lanka Law Reports
[1998] 3 Sri LR.
For these reasons, I vary the judgment of the Court of Appealby deleting that part of the judgment ordering a trial de novo andI direct the District Court to enter judgment for the plaintiff as prayedfor in the plaint. The defendant must pay the plaintiff a sum of Rs.2,500 as costs of appeal.
GUNASEKERA, J. – I agree.
Judgment of the Court of Appeal varied.