106-NLR-NLR-V-43-ISMAIL-v.-MUTTIAH-CHETTIAR.pdf
450HOWARD C.J.—Ismail v. Muttiah Chettiar.
1942Present: Howard C J. and de Kretser J.
ISMAIL v. MUTTIAH CHETTIAR,19—D. C. (Inty.) Puttalam, 4,871.
Pawn-ticket—Action to recover value of jewellery pawned—Evidence to varyterms of pawn-ticket—Pawnbroker’s Ordinance (Cap. 75), s. 6.
In an action for the return of jewellery pawned with the defendant,a pawn broker, or in the alternative for the recovery of its value, it isopen to the plaintiff to lead evidence to vary the terms of the pawn-ticket with regard to the value of the articles pawned.
PPEAL from a judgment of the District Judge of Puttalam.
N. E. Weerasooria, K.C. (with him M. I. M. HaniffFa), for the plaintiff,appellant.
H. V. Perera, K.C. (with him A. Seyed Ahamed), for the defendant,respondent..
Cur. adv. vult.
July 15, 1942. Howard C.J.—
This is an appeal by the plaintiff from an order of the District Judge ofPuttalam, answering a certain issue in the case in favour of the defendantand ruling that no evidence can be led to vary the terms of documentsP 1 and D 1, with regard to the articles pawned. The plaintiff institutedthe action to obtain an order against the defendant for the return ofcertain jewellery pawned with the defendant or in the alternative for therecovery of a sum of Rs. 1,000, being its value. The defendant, in hisanswer, whilst admitting that the articles were pawned with him,averred that they were stolen and that their value was Rs. 310, whichsum exceeds the amount due to him by way of principal and intereston the loan. During the framing of the issues, the pawn-ticket, P 1, andits counterfoil, D 1, were read and received in evidence by consent. Thesedocuments gave the value of the articles pawned at Rs. 310. Theappellant intended to" lead evidence that the articles were in fact worthRs. 1,009.37, It was in these circumstances that the said preliminary -issue was framed as follows: —
“ Can plaintiff lead evidence to vary the terms of P 1 and D 1 withregard to the value and description of the articles pawned ? ”
In accepting the defendant’s contention the learned Judge stated thatsection 6 of the Pawnbroker’s Ordinance (Cap. 75) provides that thepawn-ticket should be in the prescribed form. The form itself provides
HOWARD C.J.—Ismail v. Muttiah Chettiar.
451
for a statement as to the value of the articles pawned! He, therefore, heldthat P 1 and D 1 represent an agreement required by the law to bereduced to that particular form. Hence the law required the value of thearticles pawned to be specified and the statement with regard to suchvalue cannot be regarded as,a mere recital. The learned Judge also heldthat, as the value of the articles pawned has been mentioned becauseof the requirements of the law, the entry with regard to it cannot beregarded as coming within Explanation 3 to section 91 of the EvidenceOrdinance. Nor in the learned Judge’s opinion could evidence beadmitted under provisc (i) of section 92 to vary the terms of P 1. To sumup the conclusions of the learned Judge, he held that the contract ofpawn had been reduced to the form of a writing and moreover it wasmatter required by law to be reduced to the form of a document. Hence,none of the exceptions being applicable, sections 91 and 92 of theEvidence Ordinance precluded the admission of the evidence sought to beled by the appellant.
In this Court, Counsel for the respondent has not supported all thefindings of the District Judge. He does, however, maintain that theworth of the articles pawned is matter required by law to be reducedto the form of a document and hence, by reason of section 91, no evidenceof such matter except the document itself is admissible. The illustrationsto section 91 do not seem to support this contention. Moreover, the dis-cussion on the class of cases, coming within the ambit of the words“ matters required by law to be reduced to the form of a document ”,to be found on pp. 599-602 of the 8th Edition of Woodroff & Ameer Alion the Law of Evidence in British India, does not include in this class adocument such as a pawn-ticket. In this discussion, reference is made todocuments relating to judicial proceedings, such as judgments and decreesin civil and criminal cases, depositions and confessions. The subject isalso considered in paragraph 399 of the 12th Edition of Taylor onEvidence. In this paragraph, it is stated as follows : —
“ And, first, oral evidence cannot be substituted for any instrumentswhich the law requires to be in writing, such as records, public andjudicial documents, official informations or examinations, deeds ofconveyance of lands, wills, other than nuncupative, acknowledgments.uider Lord Tenterden’s Act, promises to pay the debt -of anotherperson, and other writings mentioned in the Statute of Frauds. Inall these cases, the law having required that the evidence of thetransaction should be in writing, no other proof can be substituted:or that, so long as the writing exists, and i£ in the power of the party.Thus, for example, parol evidence is inadmissible to prove at whatsittings or assizes a trial at Nisi Prius came on, or even that it tookplace at all, but the record must be produced. The date of a prisoner’scommittal for trial cannot be shown by parol, the warrant for committalbeing superior evidence. Whenever the testimony of a witnessis required by law to be reduced into writing,—as, for instance,when it is taken by depositions, either before an examiner of the Court,cy before a Magistrate on an indictable charge",—the writing becomes,in all subsequent proceedings, whether civil or criminal, the best
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HOWARD C.J.—Ismail v. Muttiah Chettiar.
evidence of what the witness has stated, and parol proof on the subjectis consequently excluded in the first instance. Accordingly, in anaction for malicious prosecution, no parol evidence can be given(if objected to) of what a witness said in his evidence before theMagistrate until his deposition has first been put in. When put in,it will exclude parol evidence inconsistent with it, but parol evidencecan be given to supplement the deposition by proving that the witnesssaid something on which the deposition is silent. Moreover, parolevidence cannot be received of the statement of a prisoner before theMagistrate where the examination has, in conformity with the Indict-able Offences Act, 1848 (c. 42) in England, or the corresponding Actin Ireland been reduced into writing, and subscribed, and returnedby the Justice. ”
The principle formulated in Taylor and in the Indian Evidence Act is thesame. The law having required that the evidence of the transactionshould be in writing, no other proof can be substituted for that, so longas the writing which is the best evidence exists. The first question thatarises therefrom is whether the Pawnbrokers Ordinance required theevidence of the pawning to be in .writing. Section 6 (2) provides that noarticle shall be or be deemed to be taken in pawn unless and until—
thi pawner has signed the counterfoil of the pawn-ticket;
the pawnbroker has signed the foil of the pawn-ticket and has
given the foil to the pawner ; and
the pawner has received and accepted the foil of the pawn-ticket
from the pawnbroker.
Section 5 (1) imposes on the pawnbroker the duties of keeping and usingin his business the forms of foil and counterfoil prescribed in Schedule I.Section 6 (1) provides that these forms, when executed, constitute thepawn-ticket. Section 5 (1) also provides that the pownbroker shall, fromtime to time, as occasion demands, enter in the forms in a fair and legiblemanner the particulars indicated in and in accordance with the directionof Schedule I and shall make all inquiries necessary for that purpose.It is obvious that these provisions are designed to protect those who havedealings with pawnbrokers. On the latter is cast the duty of filling inthe particulars that appear in the foil and counterfoil. In my opinionsection 6 (2) merely provides that the pawnbroker shall not be permittedto take the benefit of a contract in pawn unless he furnishes the pawnerwith a document containing particulars of the transaction. It is truethat the form prescribed in Schedule I provides for a statement as to the“ worth ” of the articles pawned. But it is not stated in the Ordinancethat this figure must be agreed between the pawner and pawnbroker orthat such figure should form the basis of the contract between the parties.Moreover, it is a figure entered only by the pawnbroker in the foil andcounterfoil after he has made inquiries. It may also be entered in alanguage with which the pawner may not be acquainted, as the law allowsit to be entered in English, Sinhalese or Tamil. As the law provides thatthe “ worth ” of the article pawned shall be entered in the two documents,
DE KRETSER J.—Agidahamy v. Fonseka.
453
it might be argued that the contract of pawn could not be pleaded by thepawnbroker if the latter had not made such entry. On the other hand, itdoes not, in my opinion, preclude the pawner who did not make the entryhimself from establishing the value of the articles by evidence other thanthat contained in the pawn-ticket. In these circumstances, other evidenceis admissible. The order of the District Judge must, therefore, be setaside and issue 4 answered in the plaintiff’s favour. It is further orderedthat the plaintiff is entitled to the costs of this appeal.
de Kretser J.~ I agree.
Appeal allowed.