GOMES v. SHAKIR

006-SLLR-SLLR-1997-2-GOMES-v.-SHAKIR.pdf


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Gomes v. Shakir
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GOMES
V.
SHAKIR
SUPREME COURT.
FERNANDO, J.,
DHEERARATNE, J. ANDWIJETUNGA, J.
S.C. APPEAL NO. 39/95.
A. NO. 423/86.
C. COLOMBO NO. 5665/RE.
NOVEMBER 28, 1995.
Landlord and Tenant – Notice to quit – Proof of receipt by Tenant – Evidence ofdue dispatch – Evidence Ordinance, sections 16 and 1144/e).
The postal receipt issued for the registered letter in which the quit notice was sentto the defendant mentioned the addressee as ”H. P. A. Shakir, Colombo 10". Theassistant post master who testified to the genuineness of the receipt said that hewrote it and normally, the full address was not entered. But the plaintiff’s Attorney-at-Law said in evidence that it was his practice to scrutinize quit notices after theywere typed by his clerk. After correcting any errors he checked that the addresson the envelope tallied with that on the notice. This procedure was followed inregard to the notice in question. The defendant’s address (including street nameand assessment number) was correctly set out in the notice; the letter was notreturned by the authorities.
Held:
The practice spoken to by the plaintiff's Attorney-at-Law was relevant undersection 16 of the Evidence Ordinance. That evidence established that the lettersent to the defendant did have the name of the street and the assessmentnumber. 2
2.The trial judge was justified in drawing the presumption (under section 114(e)of the Evidence Ordinance) that the notice to quit had been received by thedefendant.
Case referred to:
Podisingho v. Perera (1972) 75 N. L. R. 333.
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APPEAL from judgment of the Court of Appeal.
Gamini Jayasinghe with Miss. P. de Silva, for plaintiff-appellant.
R. K. W. Goonesekera with H. Wickremesinghe, for defendant-respondent.
Cur. adv. vult.
December 14.1995.
FERNANDO, J.
The question which arises in this appeal relates to the manner ofproving the receipt of a notice to quit, sent through the post.
The plaintiff-respondent-appellant (“the plaintiff") instituted actionfor the ejectment of her tenant, the defendant-appellant-respondent(“the defendant”), on the ground that the premises were reasonablyrequired for her own occupation. The trial Judge held in her favour onthat issue, and that finding is no longer in dispute. It is commonground that one year’s notice was required, and the only question iswhether the plaintiff had proved that the notice to quit, sent by anAttorney-at-Law on her behalf, had been received by the defendant.
The plaintiff succeeded on that issue at the trial, but on appeal thatfinding was reversed. Special leave to appeal was given on thefollowing questions:
Was the Court of Appeal justified in reversing the finding of theDistrict Court that the notice to quit was duly sent to thedefendant?
Does the presumption under Section 114(e) read with section 16 ofthe Evidence Ordinance arise upon the evidence relating to thenotice to quit?
FACTSThe plaintiff's case depended on the evidence of two witnesses,whose credibility was not attacked at any stage.
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Mr. C. V. Vivekanandan, the Attorney-at-Law who sent the notice toquit, testified that the plaintiff came to him, having previously sentanother notice to quit. As that notice was defective, he draftedanother, withdrawing the previous notice and giving notice afresh. Heexplained the procedure which he usually followed in regard tonotices to quit. In view of their importance, and as a defect couldresult in an action being unsuccessful, it was his practice toscrutinize such notices after they were typed by his clerk; aftercorrecting any errors, he checked that the address on the envelopetallied with that on the notice; such notices were sent by registeredpost, that being a task entrusted to his clerk. He said that he followedthe same procedure in regard to the notice in question. Theregistered article receipt and the office copy of the notice were filedtogether with the instructions given by the plaintiff; these wereproduced as “P4” and “P5” respectively. The defendant’s address(including street name and assessment number) was correctly setout in P5, but P4 was difficult to decipher. The letter was not returned,undelivered, by the postal authorities.
The clerk who took the letter to the post office was not called.
The Assistant Post Master from the relevant Post Office testifed tothe genuineness of P4; he said that the duplicate was not available,because in the ordinary course duplicates were not kept for morethan two years. In cross-examination, Counsel for the Defendantasked the witness in whose handwriting P4 was, and he replied that itwas his. In re-examination plaintiff’s Counsel asked him to read whatwas written, somewhat illegibly, on P4, and the witness replied thatthe sender’s name was “C.V. Vivekanandan" and the addressee was“H.P.A. Shakir, Colombo 10”; he added that normally the full addressis not entered. Counsel for the Plaintiff neither objected to thisevidence nor sought permission to cross-examine further.
No attempt was made by the plaintiff to obtain from the postalauthorities any proof of delivery to the defendant, in particular theacknowledgement which is invariably obtained from the recipientupon delivery. Counsel for the plaintiff submitted to us that probablysuch documents too would have been destroyed after two years, butof that there is no evidence.
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This evidence is not conclusive. It does not exclude the possibilitythat two envelopes might have got interchanged in Mr. Vivekanandan’soffice, resulting in the notice being enclosed in the wrong envelope;but it is likely that such a mistake would not have remainedundiscovered, because at least one addressee would have pointedout that he had received a letter not intended for him. It is alsopossible that the clerk might have tampered with the letter: bychanging the street name, or by substituting an incorrectlyaddressed envelope, in order to prevent the letter reaching thedefendant. But there was never any suggestion that the plaintiff orMr. Vivekanandan was a party to any such scheme, or that the clerkmight have tampered with the letter.
In these circumstances, Mr. Vivekanandan’s evidence establishesthat the notice was enclosed in an envelope having the sameaddress as that which appears on the office copy of the notice. Thepossibility that the envelope was interchanged, or tampered with,must be excluded, as being too remote. Despite the lack of directevidence to show that the clerk took the letter to the post office, theAssistant Post Master’s evidence makes it very probable that thereceipt P4 was issued in relation to that very same envelope. It is veryprobable therefore that the original notice to quit was enclosed in anenvelope duly addressed to the defendant, and was handed to thepostal authorities for despatch by registered post. Since the letterwas not returned, it was either delivered to the defendant, or wentastray in the post.
The defendant gave evidence, and denied that he received thenotice to quit. The trial Judge took two matters into consideration inconcluding that his evidence could not be accepted. He said that hereceived the first notice to quit, but did nothing about it because itwas in English, and he could not read English; nor did he ask anyoneto read it for him. It was his position that although he could identifythe letters of the alphabet, he could not read words in English.However, he was confronted with a letter which he had said waswritten by him; this was in English, in flowing script. He tried toexplain this by claiming that he had written it by looking at letters andwords in another letter which was typewritten. Considering that the
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handwritten letter was reasonably neat and free of mistakes ordeletions, the trial Judge was justified in concluding that the defendantwas not speaking the truth when he claimed that he could not readEnglish. It is also difficult to believe that he made no attempt to findout what that letter was about. The second matter was his claim tohave paid an advance of Rs. 5,000/- to the plaintiff when he obtainedthe tenancy; he said that he had told his Attorney-at-Law about thisbefore answer was filed, but there was no claim or averment in theanswer about that advance. He also claimed that he had a receipt forthree months rent, and since the monthly rent, admittedly, wasRs. 100/- it would seem that he had only paid an advance of Rs. 300/-.
On this evidence, the learned trial Judge held that the plaintiff hadproved the receipt of the notice to Quit. However, he made noexpress reference to section 16 or section 114(e) of the EvidenceOrdinance.
COURT OF APPEAL JUDGMENTThe Court of Appeal reversed that finding, giving its reasons verybriefly; firstly, that P4 –
“has only the letters APB (sic) and the name of the sender is C. V.Vivekanandan which is decipherable. The evidence of the(Assistant) Post Master is that … the recipient (is) H. P. A. Shakir,Colombo 10. We are of the view that the learned trial Judgemisdirected himself in accepting this evidence as the documentP4 does not support this evidence. The word 'Shakir' isindecipherable and ‘Colombo 10’ is also indecipherable."(emphasis added)
Having observed that the presumption (of the receipt of a letter)properly arises only if the letter was correctly addressed and posted,and that P4 was only proof of posting, the Court observed:
“Attorney-at-Law Vivekanandan states that normally he checks theaddresses. This evidence without specific reference to thisletter is not satisfactory and sufficient for us to come to the
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conclusion that the particular letter referred to by P4 had theaddress that was on the envelope which had P5 … the learnedDistrict Judge misdirected himself when he came to theconclusion that the letter contained the notice of termination, andhad been properly addressed and duly served on the defendant."(emphasis added)
Finally, the Court concluded:
“In any event, there is no evidence to show that this letter… was infact served on the defendant by evidence of (a) witness as to itsservice.” (emphasis added)
RELEVANCE OF EVIDENCEThe relevant provisions of the Evidence Ordinance are as follows:
16. When there is a question whether a particular act was done,the existence of any course of business, according to which itnaturally would have been done, is a relevant fact.
Illustration (b). The question is, whether a particular letterreached A. The facts that it was posted in due course and wasnot returned through the dead letter office are relevant.
114. The court may presume the existence of any fact which itthinks likely to have happened, regard being had to thecommon course of natural events, human conduct, and publicand private business in their relation to the facts of the particularcase.
Illustration (e). That the common course of business has beenfollowed in particular cases.
159(1). A witness may, while under examination, refresh hismemory by referring to any writing made by himself at the timeof the transaction concerning which he is questioned or so soonafterwards that the court considers it likely that the transactionwas at that time fresh in his memory.
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160. A witness may also testify to facts mentioned in any suchdocuments as is mentioned in section 159, although he has nospecific recollection of the facts themselves, if he is sure thatthe facts were correctly recorded in the document.
The Court of Appeal erred in rejecting the evidence of theAssistant Post Master on the ground that the document P4 did notsupport his evidence – seemingly treating P4 as contradicting orbeing inconsistent with the oral evidence. His evidence confirmed. that P4 was a genuine postal article receipt, and that a letteraddressed to the defendant had been duly accepted for despatch byregistered post. Obviously, he could not have had an independentrecollection of having accepted any particular letter, or of the nameand address on it. But when it turned out that he had written P4, itresulted in any uncertainty as to the sender and the addressee beingcompletely cleared up; in particular, that the addressee was thedefendant, of “Colombo 10”. The maker of the document was thustestifying as to what exactly he had written, just as a witness mightclarify what he had written in shorthand, or in code, or in a foreignlanguage. A Court cannot reject such evidence – if the veracity of thewitness is not challenged – on the ground that the contents of thedocument do not “support" such clarification or interpretation.Considered from another angle, the witness was using a documentcontemporaneously prepared by him to refresh his memory (undersection 159(-1) or to testify to the transaction to which it related (undersection 160).
That evidence established that a letter addressed to the defendantof “Colombo 10” was duly posted. The next question was whetherthat letter did contain the name of the street and the assessmentnumber.
The Court of Appeal erred in holding that Mr. Vivekanandan’sevidence was “not satisfactory and sufficient”, “without specificreference to the letter”, Mr Vivekanandan stated that he had followedthe same practice in relation to the notice in question, as he didgenerally. But even if he had only said that “he would have followed”the same procedure which he generally followed, that would have
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been relevant under section 16. The question arose as to whether thisparticular notice was enclosed in an envelope duly addressed andsent to the post office; he testified as to the “course of business” inhis office, “according to which it naturally would have been done”, i.e.duly addressed and sent to the post office. It should not have beenrejected.
That evidence established that the letter which the Assistant PostMaster accepted did have the name of the street and the assessmentnumber.
I now turn to the presumption under section 114(e). If thecircumstances were such that the trial Judge was entitled to draw thepresumption, the Court of Appeal was not justified in reversing hisconclusion on the ground that there was no evidence from a witnessas to the service of the notice; for, when duly applied, thepresumption will generally be a substitute for such evidence.
Mr. Goonasekere for the defendant submitted that the presumptionwas a presumption of fact, of the weakest kind; one which “may", andnot “must", be drawn; he urged, with justification, that in the field oflandlord and tenant, where so much turns on whether a notice hadbeen received, the presumption should not too easily be drawn; andhe pointed out that the plaintiff had made no effort to obtain the bestevidence of delivery, in the form of an acknowledgement of delivery,through the postal authorities. Replying to the submission on behalfof the plaintiff, that the defendant’s evidence was “only a barefaceddenial", he posed the question, if the defendant had not received thenotice, what more could he do than simply deny its receipt?
In Podisingho v. Perera, the presumption was not drawn. There theProctor who had sent the notice did not give evidence, to say that thenotice was enclosed in a properly addressed envelope; theregistered article receipt did not have the name of the street and theassessment number; and the parties were occupying adjoiningpremises, and it had been suggested to the plaintiff in cross-examination that his employees might have intercepted the letter inthe course of delivery.
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That case is distinguishable because there, evidence that theenvelope had been duly addressed was lacking. Further, in this case,the trial Judge had good reason to hold that the defendant'sevidence was not worthy of credit. The notice to quit was in English; ifthe defendant had not bothered to find out what the first notice wasabout, would he have treated the second differently? There are othercurious features. In the defendant’s answer and amended answer,having denied the receipt of the notice, he went on to plead that “inany event, the notice to quit… is bad in law and of no force or avail inlaw”; and when the office copy was sought to be produced, Counselfor the defendant objected on the ground that the plaintiff had notgiven the defendant notice to produce the original, as required bysection 66. This conduct was inconsistent with the original not havingbeen received by the defendant.
In these circumstances, the trial Judge was justified in drawing thepresumption that the notice to quit had been received by thedefendant, and the Court of Appeal erred in interfering with theexercise of the discretion of the trial Judge. The appeal is allowed,and the judgment and decree of the District Court is restored; thedefendant will pay the plaintiff a sum of Rs. 5,000/- as costs of appealin both Courts.
DHEERARATNE, J. – I agree.
WIJETUNGA, J. -1 agree.
Appeal allowed.