GILBERT AND COMPANY ENGINEERING (PVT) LTD v. A. B. DE SILVA AND SONS LTD

008-SLLR-SLLR-2007-V-2-GILBERT-AND-COMPANY-ENGINEERING-PVT-LTD-v.-A.-B.-DE-SILVA-AND-SONS-LTD.pdf


CA
Gilbert and Company engineering (Pvt.) Ltd. v
A.B. de Silva and Sons Ltd.
75
GILBERT AND COMPANY ENGINEERING (PVT.) LTD.
v
B. DE SILVA AND SONS LTD.
COURT OF APPEALWIMALACHANDRA, J.
GALA 438/2004DC COLOMBO 9483/REJUNE 20, 2005MARCH 9, 2006
Evidence Ordinance , section 65, section 66-66(1) – Notice to producedocuments? – What is the sole object? • Can a party object to the productionof a copy of a document while denying the receipt thereof?
As the defendant disregarded the notice to quit, action was instituted to evictthe defendant. The defendant's position was he was never a tenant.
At the trial, the plaintiff sought to produce a copy of a letter sent to thedefendant informing him to pay a certain sum as the rent for a specified month.The defendant objected on the ground that notice had not been given to thedefendant under section 66 of the Evidence Ordinance to produce the originaldocument. This objection was overruled by Court.
Held:
Rules as to notice to produce documents are found in section 66Evidence Ordinance. Notice is required in order to give the opposingparty sufficient opportunity to produce the document. When thedefendant states that he did not receive such a document, there is norequirement to give notice to the defendant— the defendant has deniedtenancy and the receipt of the document
The document may be useful for Court to decide the question of tenancy.
APPLICATION for leave to appeal from an order of the District Court ofColombo.
Case referred to:
(1) Joonos v Chandraratne 1993 tSri LR 86 at 92.
Thisath Wijegunawardane with Sadun Withana for defendant-petitioner.
C.E de Silva for plaintiff-respondent.
76
Sri Lanka Law Reports
12007.J 2SriL.R
March 16, 2007WIMALACHANDRA, J.
This is an application for leave to appeal from an order of thelearned Additional District Judge of Colombo dated 2.11.2004. Theplaintiff-respondent (plaintiff) instituted the action bearing No.9483/RE in the District Court of Colombo against the defendant-petitioner (defendant) inter alia for the ejection of the defendantfrom the premises in suit.
It was the plaintiffs case that he rented the premises to thedefendant on a monthly rental of Rs. 763/75 on a tenancyagreement. As the defendant effected unauthorised structuralalterations in the said premises without the approval of the plaintiff,and the local authority, the notice to quit was sent by the plaintiff on8.4.2003 terminating the tenancy with effect from 31.5.2003. As thedefendant had disregarded the notice to quit, the plaintiff institutedthis action on 8.7.2003. The defendant filed answer denying theseveral averments in the plaint and pleaded that he was never atenant of the plaintiff in the premises in suit and prayed for thedismissal of the action.
After framing issues, the case proceeded to trial. At the trial theplaintiff sought to produce a copy of a letter dated 9.4.2002 sent tothe defendant informing him to pay a sum of Rs. 595/08 as the rentfor the month of March 2002. The defendant objected to the saiddocument being marked on the ground that notice had not beengiven to the defendant under section 66 of the Evidence Ordinanceto produce the original document.
The learned Counsel for the defendant submitted that the saiddocument sought to be produced by the plaintiff is a copy of a letterof demand requiring the defendant to pay rent and it does not fallinto the category of a notice. The learned Counsel submitted thatsection 66(1) of the Evidence Ordinance applies only to notices andnot to letters of demand. The learned Counsel further submittedthat the denial of the receipt of the said letter by the defendant isnot an excuse for the plaintiff not to give notice under section 66 ofthe Evidence Ordinance.
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Gilbert and Company Engineering (Pvt.) Ltd. v
A.B. de Silva and Sons Ltd. (Wimalachandra. J.)
77
It is not in dispute that in the answer filed by the defendant he
has denied tenancy and denied the receipt of the said document. Itappears that the said document dated 9.4.2002 was a noticeinforming the defendant that he is in arrears of rent in a sum of Rs.595/06 for the month of March 2002 in respect of the premises insuit and demanding the payment of the same. The tenant is boundto pay the rent to the landlord when informed by the landlord,unless he is not in arrears of rent.
Rules as to notice to produce documents are found in section 66of the Evidence Ordinance. Section 66 states as follows:
"Secondary evidence of the contents of the documentsreferred to in section 65, subsection (1), shall not be givenunless the party proposing to give such secondary evidencehas previously given to the party in whose possession orpower the documents is, or to his proctor; such notice toproduce it as is prescribed by law; and if no notice isprescribed by law, then such notice as the Court considersreasonable under the circumstances of the case:
Provided that such notice shall not be required in order torender secondary evidence admissible in any of the followingcases, or in any other case in which the Court thinks fit todispense with it:
Section 66 (1) when the document to be proved is itself a
notice;
Section 66 (2) to (6) are emitted"
In my view notice is required in order to give the opposing partysufficient opportunity to produce the document. When the defendantstates that he did not receive such a document, there is norequirement to give notice to the defendant. The defendant in thiscase has denied the tenancy and the receipt of the said document.
Cross on Evidence, 6th edition at p.606 states thus:
"In certain circumstances, service of notice to produce isexcused, and a party may adduce secondary evidence ofthe contents of a document if the original is not producedby the opponent The most important case in which this isso is when the document in question is itself a notice."
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Sri Lanka Law Reports
[2007] 2 Sri L.R
The proviso to section 66 of the Evidence Ordinance states thatnotice shall not be required in order to render secondary evidenceadmissible under section 66(1) when the document to be proved isitself a notice [Section 66(2) to (6) are omitted ].
The purpose of giving notice to produce the original in terms ofsection 66 of the Evidence Ordinance is explained by JusticeDheeraratne in Joonoos v ChandraratnelV at 92 in the followingwords;
"By paragraph 12 of the plaint, the plaintiff-respondent hasaverred that by letter dated 15.1.1983 he gave one year'snotice in writing of the termination of the tenancy
The defendant-appellant denied the plaintiff-
respondent's averment. The direct inference of that denial isthat the plaintiff-respondent did not send such a notice tothe defendant-appellant and therefore the defendant-appellant did not receive the same. In this context, it wouldbe a sheer pretence to give notice to the defendant-appellant to produce the original of the notice. It is difficultto imagine that the law expects the plaintiff-respondent toindulge in such a meaningless charade. Notice to produce(the original) is not served in order to give the opponentnotice that the document mentioned in it will be used by theother party, and thus enable the opponent to preparecounter evidence, but so as to exclude the objection that allreasonable steps have not been taken to procure theoriginal document."
Thus it will be seen that the sole object of a notice to produce is toenable the other party (defendant) to have the document in Court toproduce it if he likes and if he does not, to enable his opponent (theplaintiff) to give secondary evidence thereof, so as to exclude theargument that the latter has not taken all reasonable means to obtainthe original which he must do before he can be permitted to make useof secondary evidence.
In the circumstances I am of the view that in the instant case thelearned Judge has correctly exercised the discretion in terms ofsection 66 and admitted the copy of the document to be produced. Inany event the defendant cannot object to the production of the oopy
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Mendis v Mendis
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of the said document dated 9.4.2002 while denying the receiptthereof. The said document may be useful for the Court to decide thequestion of tenancy in respect of the premises in suit.
For these reasons, leave to appeal against the order of the learnedAdditional District Judge dated 2.11.2004 is refused with costs fixed atRs. 7,500/-. The learned District Judge is directed to give precedenceto this case and to conclude the same as expeditiously as possible.
Application refused.