Casie Chetty v. Senanayake
COURT OF APPEAL.
A. NO. 746/90 (F).
C. COLOMBO NO. 6972/RE.
MAY 11, 1999.
Rent Act s. 22 (5) – Arrears of rent – Valid termination of tenancy – Quit notice- Civil Procedure Code – ss. 121, 175, 175 (2) – Producing a document notin the list ~ Reasoning.
The plaintiff-appellant instituted action for an order of ejectment on the groundof arrears of rent; the defendant-respondent filed answer, admitting that he wasin arrears, but stated that, he fell into arrears as there was a refusal to acceptthe rent and further pleaded that – there has been no valid termination of thetenancy. Court held with the defendant-respondent.
On Appeal –
Proof of posting of a registered article is not the only mode of such proof,if available it is good and reliable evidence.
A document is required to be included in the list of documents (s. 121CPC) and if not included shall not without leave of Court be received inevidence at the trial, however, documents produced in cross-examinationof the witness of the opposite party or handed over to a witness to refreshhis memory, are not covered under s. 121 CPC.
"In exercising discretion under s. 175 CPC where it is sought to call a witnesswhose name was not in the list, the paramount consideration for the Judge isthe ascertainment of the truth and not the desire of a litigant to be placed atan advantage by some technicality" –
Sri Lanka Law Reports
 3 Sri LB.
Per Jayasinghe, J.
"There have been instances in the past where Courts have relied on theevidence of Attorneys-at-law to support the claim that documents were in factdespatched.’
Per Jayasinghe, J.
"It is my view that document P2A should have been admitted by the learnedDistrict Judge as parties who appear ought not to be allowed to use the judicialmachinery to achieve ends which are patently ulterior."
APPEAL from the judgment of the District Court of Colombo.
Cases referred to:
Girantha v. Madiya – 50 NLR 519.
Salary Muttu v. Edwin de Silva – 5 NLR 394.
M. S. A. Hassan with Ms. Safaya Hassan for plaintiff-respondent.J. C. Boange for the defendant-respondent.
Cur. adv. vult.
September 01, 1999.
The plaintiff instituted action in the District Court of Colombo foran order of ejectment of the defendant from the premises in suitNo. 63, Gemunu Mawatha, Pattiya, Kelaniya, on the ground of arrearsof rent from June, 1974, to August, 1986; for an order for arrearsin a sum of Rs. 3,256/05 in respect of the said period; for damagesin a sum of Rs. 100 per month from September, 1986, until the plaintiffis restored to possession and for costs. .
CACasie Chetty v. Senanayake (Jayasinghe, J.) 13
The defendant filed answer; admitted that he was in arrearsas averred by the plaintiff; that the defendant fell into arrears asthere was a refusal to accept the rent; he claimed relief undersection 22 (5) of the Rent Act.
The defendant put in issue that there has been no valid terminationof the tenancy which the plaintiff claimed existed between the plaintiffand the defendant.
The plaintiff gave evidence at the trial and produced documentmarked P2 which was addressed to the defendant where the plaintiffhas been nominated as the landlord of the said premises by his sisters.Produced P3 which the plaintiff wrote to the defendant informing thedefendant that he has succeeded as the landlord. He also producedP1 a copy of the quit notice. The plaintiff called Henry Peiris, Attorney-at-law, to support his contention that the quit notice was in fact sentby registered post.
The defendant giving evidence admitted that he was in arrears ofrent. It was due to his failing health and for want of an income. Hedenied that he ever received P1.
The learned Additional District Judge has observed that the Courtmust be primarily satisfied that the quit notice has, in fact, beenreturned by the defendant. He is quite right. But, the satisfaction mustemerge on a reasonable and a practical evaluation made by the trialJudge. Particularly, in a case where the defendant had admitted thathe was in arrears of rent, an admission by him that he had receivedthe quit notice will effectively seal his fate.
It is, therefore, absolutely necessary for the trial Judge to examineall the attendant circumstances evolved before Court before he acceptsthe defendant's denial that the notice to quit was not in fact sent.Proof of posting of a registered article is not the only mode of suchproof. If available it is good and reliable evidence in given circum-stances. There can also be some other ways as well. In this instance
Sri Lanka Law Reports
[19991 3 Sri LR.
Henry Peiris, Attorney-at-law, testified on oath that P1 was in fact sentto the defendant under registered post. His evidence has not beenassailed. When the defendant was giving evidence the plaintiff soughtto mark P2 a list of registered letters received by the post office.The learned Additional District Judge refused the plaintiff to producethe said document along with the registered article as it has not beenlisted as a document by the plaintiff. The section 175 (2) provides:that . . .
A document which is required to be included in the list of documentsfiled in Court by a party as provided by section 121 and which isnot included, shall not without leave of Court, be received in evidenceat the trial of the action: provided, that nothing in this subsection shallapply to documents produced in cross-examination of the witness ofthe opposite party or handed over to a witness merely to refresh hismemory.
The counsel for the plaintiff sought to contradict the defendantproducing as "P2A" a list of registered letters that Henry Peiris,Attorney-at-law, had sent to the Post Office, Borella, for transmissionaccording to which Article No. 4 was the registered letter addressedto the defendant F. V. P. Senanayake and the registered postal articlereceipt issued by the Post Office, Borella, the same day. In Giranthav. MadiyePi section 175 (1), came up for interpretation. Section 175(1) provides that no witness shall be called on behalf of any partyunless such witness shall have been included in the list of witnessespreviously filed in Court by such party as provided by section 121.
Provided, however, that the Court may in its discretion, if specialcircumstances appear to it to render such a course advisable in the. interests of justice, permit a witness to be examined, although suchwitness may not have been included in such list aforesaid;
Gratien, J. observed that in exercising discretion under section 175of the Civil Procedure Code where it is sought to call a witnesswhose name was not in the list filed before the trial the paramount
Casie Chetty v. Senanayake (Jayasinghe, J.)
consideration for the Judge is the ascertainment of the truth and notthe desire of a litigant to be placed at an advantage by sometechnicality. I am inclined to extend the same reasoning in respectof subsection (2) of section 175 as well. There appears to be nojustification to place the defendant at an advantage relying on atechnicality. In my view the trial Judge erred in disallowing the pro-duction of P2A. There have been instances in the past where Courtshave relied on the evidence of Attorneys-at-law to support the claimthat documents were in fact despatched. In Savary Muttu v. Edwinde Siival® Court acted on the evidence given by the plaintiff's proctorthat he sent the notice to quit by registered post. Though this evidencewas led in different circumstances, the principle of substitutingthe Attorney's evidence to support the transmission of the quit noticeto the defendant has been accepted by our Courts. It is my viewthat the document P2A should have been admitted by the learnedAdditional District Judge as parties who appear before Court oughtnot to be allowed to use the judicial machinery to achieve ends whichare patently ulterior.
Having regard to the evidence of Henry Peiris, I hold that theplaintiff has duly terminated the tenancy of the defendant on theground of arrears of rent. I, accordingly, set aside the judgment ofthe learned Additional District Judge and enter judgment for the plaintiffas prayed for with taxed costs.
EDUSSURIYA, J. (P/CA) – I agree.