003-SLLR-SLLR-1998-V-2-CINEMAS-LIMITED-v.-SOUNDERARAJAN.pdf
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Sri Lanka Law Reports
(1998) S Sri LR.
CINEMAS LIMITED
v.SOUNDERARAJAN
COURT OF APPEALJAYASURIYA, J.
CA.LA 66/97
CA NO. 382/987 (REVISION)
DC KANDY CASE NO. 2365/REJUNE 12. 1997.
Civil Procedure Code – s. 154, Explanation s. 404 – Failure to object to documentwhen first tendered – Failure to contradict by cross-examination and lead evidencein rebuttal – Evidence OrdinanceProof – Omnia praesumuntur rite et solenniteresse acta, donee probetur in cont'rarium.
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Cinemas Limited v. Sounderarajan (Jayasuriya, J.)
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In a civil case when a document is tendered the opposing party shouldimmediately object to the document. Where the opposing party fails toobject, the trial judge has to admit the document unless the documentis forbidden by law to be received and no objection can be taken in appeal- S. 154 CPC (explanation).
Where one party to a litigation leads prima facie evidence and the adversoryfails to lead contradicting evidence by cross-examination and also fails tolead evidence in rebuttal, it is a "matter" falling within the definition of theword "proof in the Evidence Ordinance and failure to take cognizance ofthis feature and matter is a non-direction amounting, to a misdirection.
Once a Court accepts and acts on a proxy or a power of attorneypresumably because no defect appears on the face of such document,any party who desires to question the authority of that document has theonus of showing, the want of authority. This rule is based on the pre-sumption – omnia praesumuntur rite et solemniter esse acta donee probeturin contrarium.
In the determination on an issue in regard to substitution under section404, the trial judge has the discretion.
Cases referred to:
Perera v. Seyed Mohomed 58 NLR 246.
Adaicappa Chettiar v. Thomas Cook & Sons (1930) 31 NLR 385.
Silva v. Kindersley 18 NLR 85.
Eldrick Silva v. Chandradasa 70 NLR 169.
Wijesinghe v. Incorporated Council of Legal Education 65 NLR 368.APPLICATIONS for leave to appeal and revision.
S. Mahenthiran for petitioner.
A. K. Premadasa, PC with C. £ de Silva for respondent.
Cur. adv. vult.
June 12, 1997.
JAYASURIYA, J.
I have heard the learned counsel for the petitioner in the revisionapplication and for the applicant in the leave to appeal application.The learned counsel for the petitioner is seeking to impugn the ordermade by the learned District Judge of Kandy dated 20.03.1997 whichhad been produced marked A. His principal contention is that thelearned District Judge had relied in his order on documents markedP2 and P2A which is a certificate of heirship in succession issuedby Regional Controller of Revenue Ejodu dated 20.09.1994. Thelearned counsel contends that this document does not come withinthe category of public documents of a foreign country, in that there
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Sri Lanka Law Reports
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is no certificate under the seal of a notary public or British consulor diplomatic agent, that the said officer is a functionary having anofficial character and that it is certified by an officer having the legalcustody of the original which is referred to in section 78 (6) (11) ofthe Evidence Ordinance. What is paramount in considering this sub-mission which has been trotted out in appeal for the first time is thatthis objection was never taken when this document was adducedbefore the District Judge at the inquiry. In those circumstances thisCourt has necessarily to consider the provisions of section 154 inregard to tender of documents in evidence at trial or inquiries andthe effect of the explanation to section 154 of the Civil ProcedureCode which applies to all inquiries and trials in the District Court.Explanation reads thus: "If the opposing party does not, on thedocument being tendered in evidence, object to it being received andif the document is not such as is forbidden by law to be receivedin evidence, the Court should admit". Thus, in civil proceedings it isof paramount importance for the opponent to object to a documentif it is inadmissible having regard to the provisions of the EvidenceOrdinance. Where he fails to do so, the objections to admissibilitycannot be raised for the first time in appeal. The principle and rationalebehind this rule is easily understood. Had objection been taken, theparty proposing to adduce the document would have tendered to theCourt evidence aliunde and by the failure to take the objection theopposing party has waived the objection. Clearly, document P2 is nota document which is forbidden by law to be received in evidence.Justices Sinnetamby and L. W. de Silva (acting Judge) in Perera v.Seyed Mohomed1,1 proceeded to distinguish between a documentwhich is inadmissible having regard to the provisions of the EvidenceOrdinance and a document which is forbidden by law and theirLordships held the failure to object by the opponent to certain deedsbelonging to strangers to the action which were inadmissible havingregard to the provisions of the Evidence Ordinance at the trial,rendered those deeds and documentary evidence admissible evidencein the case and their Lordships were of the considered view that noobjection can be taken to them in appeal. This is a point of differencebetween criminal proceedings and civil proceedings. In a civil casewhen a document is tendered the opposing party should immediatelyobject to the document. Where the opposing party fails to object, thetrial Judge has to admit the document unless the document isforbidden by law to be received and no objection to its admissioncan be taken up in appeal. Vide as authorities for this propositionAdaicappa Chettiar v. Thomas Qook and Sons<z> Silva v. Kindersley■ Perera v. Seyed Mohomed<’> (supra). Therefore, I hold that it is not
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Cinemas Limited v. Sounderarajan (Jayasuriya, J.)
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open to learned counsel for the petitioner and the applicant to objectto the adduction of document P2 in appeal, inasmuch as no objectionwas taken to this document when it was sought to be immediatelymarked in evidence at the inquiry.
At the inquiry witness Govindasamy Krishnamoorthy gave evidenceand in the course of his evidence in-chief he has stated that the partyproposed to be substituted – V. R. Sounderarajan is the eldest sonof A. R. L. S. Ramanathan Veerappan Ramanathan Chettiar, thedeceased hereditary trustee. When he stated that the proposed partyto be substituted is the eldest son of the said deceased, that oraltestimony has not been contradicted by the process of cross exami-nation. Equally, at the inquiry, when the defendant-respondent hadthe unfettered and unrestricted opportunity and right to lead rebuttingevidence on this point the defendant-respondent has completely failedto lead such rebutting evidence. In this situation the principles laiddown by Justice H. N. G. Fernando in Eldrick Silva v. Chandradasa<4>come into operation – "where one party to a litigation leads primafacie evidence and the adversary fails to lead contradicting evidenceby cross-examination and also fails to lead evidence in rebuttal, thatis a special feature in the case and it is a "matter" falling within thedefinition of the word "proof" in the Evidence Ordinance and if anyCourt were to fail to take cognizance of this feature and matter, thatwould be a non-direction amounting, to a misdirection." I am inrespectful agreement with the principles laid down by Justice H. N.G. Fernando and I hold that these principles are applicable to thesituation under consideration. The defendant-respondent failed tocontradict by cross-examination, the oral evidence of GovindasamyKrishnamoorthy when he stated that V. R. Sounderarajan, theproposed substitute was the eldest son of the said deceased trustee -Ramanathan Veerappan Ramanathan Chettiar. Neither was evidencein rebuttal led therefore the District Judge was entitled to act on thisprima facie evidence which became cogent and overwhelmingevidence by reason of the failure to contradict the witness and bythe failure to lead evidence in rebuttal. The order of the District Judgeis tenable and could be upheld having regard to these two consid-erations. In addition, there were three other documents marked, thatis, P1 which is the Decree in DC Kandy Case Number 10804/X, P3the power of Attorney dated 9.1.1995 and P5 the declaration dated20.08.94; when all these documents were tendered and marked, theywere not objected to and the provisions of the aforesaid explanationto section 154 of the Civil Procedure /Code would be applicable tothese documents.
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In the petition the petitioner has attempted to impugn before thisCourt, the power of Attorney which has been produced and markedin evidence as P3. The principles laid down by Justice Sansoni inWijesinghe v. Incorporated Council of Legal Education® with regardto powers of Attorney and proxies, answer the matters raised in therevision petition. Once a Court accepts and acts on a proxy or a powerof Attorney presumably because no defect appears on the face ofsuch document, any party who desires to question the authority ofthat document has the onus of showing, the want of authority. JusticeSansoni relied upon and applied the presumptions which attach toa power of Attorney or a proxy in such situation. Vide His Lordship'sremarks at page 368. This rule is based on the presumption omniapraesumunturr ite et solenniter esse acta donee probetur in contrarium.This is a complete answer to the matter raised in the petition of therevision application. In the determination of an issue in regard tosubstitution under section 404 of the Civil Procedure Code, the trialjudge has a discretion and I hold in the instant situation the DistrictJudge of Kandy has correctly exercised his discretion on a consid-eration of the material placed before him.
In the circumstances I refuse notice to issue on this revisionapplication and I proceed to dismiss this revision application withoutcosts. I also refuse leave to appeal against the order of the learnedDistict Judge of Kandy dated 20.03.1997.
Notice refused.