030-NLR-NLR-V-05-JAGANADAN-PILLAI-v.-PERERA.pdf
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JAGANADAN PILLAI v. PERERA.D. C., Kandy, 12,983.
1901.
May IS.
Onus probandi—Duty ofthe party beginning todischarge theburden ofproof
fully—Evidence inrebuttal—Discretion ofjudge—CivilProcedureCode,
s. 166.
In an action raised to recover the balance of the price of a housesold to defendant, defendant in support of his plea of payment read inevidence the conveyance wherein plaintiff bad acknowledged receipt ofthe full consideration and closed his case. Plaintiff thereupon provedby witness and documents that the balanceclaimed wasnot reallypaid.
After plaintiff’s casewas closed defendantproposed tocall evidence in
rebuttal.
Held that, qe the onus was on defendant to prove payment, it washis duty to adduce all the evidence he had, and that the District Judgehaving, in the exercise of his discretion vested in him by section 166 ofthe Civil Procedure Code, refused to allow the defendant to callevidence in rebuttal, there appeared no reason to interfere with it.
T
HE plaintiffs alleged that they conveyed a house and groundsto the defendant for Rs. 3,000 and were paid Rs. 2,500, and
they raised the present suit to recover the balance Rs. 500. Thedefendant pleaded payment.
In support of his plea, his counsel read in evidence that part ofthe conveyance wherein plaintiff acknowledged to have receivedthe full consideration, vi/.., Rs. 3,000, and closed his case.
Thereupon witnesses were called on behalf of the plaintiffs, whoproved that only Rs. 2,500 had been paid, and that defendant hadwritten two letters to the plaintiff's proctor requesting him toeffect a settlement of the case by receiving Rs. 125.
After plaintiffs had closed their case, defendant’s counselproposed to. call evidence in rebuttal, but this was objected tounder section 163 of the Civil Procedure Code.
The District Judge (Mr. J. H. de Saram) held as follows: —
“ I am of opinion t-hat plaintiff is not entitled to adduce anyevidence in reply.. The onus was on him to prove the issue, which’is one of. payment. He should have adduced all his evidence•before he -closed his case. Mr. Vanderwall explained that whenhe put the transfer in evidence, he was under the impression thathe shifted the burden of proof on plaintiff. That was not. so.There was no shifting of the burden of proof. Mr. Vanderwallwas content to discharge the onus that lay on the defendant byreading in evidence the transfer in which the plaintiff acknow-ledged receipt of the consideration. If Mr. V^ndersvall intended!to call Mr. Beven. he . should have done so when he. read the:transfer in evidence and before ’ he closed the plaintiff’s case.
1901.
May IS.
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He asked me to permit him under the provisions of section 166to adduce evidence. I could not do so, because I do notconsider a mistake on the part of a proctor gave cause within themeaning of that section. It would certainly be a dangerousprecedent to establish.”
He gave judgment for plaintiff.
Defendant appealed.
Walter Pereira, for appellant.—The District Judge thought hehad no power to allow evidence in rebuttal. O’Kinealy in hisnote on section 180 of the Indian Code states that the judge has aclear discretionary power, but it should not be exercised withoutgood reason. In- the Ceylon Code the section that applies is 166.The District Judge assumes that the defendant’s proctor had com-mitted a mistake in not calling all the evidence he had as to pay-ment. Defendant should be given an opportunity to rebut. Ifnecessary, your lordships may put him on terms. We are preparedto pay the costs resulting from the supposed mistake of theproctor.
Bawa, for respondent.—It is not open to the defendant to repu-diate the conduct of his proctor. Section 150 regulates theburden of proof, and section 166 vests discretion in the judge toallow further evidence. But this was not a case for the exerciseof that power. The burden of proof was on the defendant, whoalleged payment. He should have proved.it to the liilt, especiallyas the acknowledgment of Rs. 3,000 in the body of the deed wascontradicted by the notary’s attestation that Rs. 2,500 only waspaid in his presence.
Walter Pereira.—The attestation proves nothing, because thenotary is bound to record only what was paid in his presence, andhe cannot well speak of previous payments not made in hispresence. Ordinance No. 2 of 1877, section 26 (18).
15th May, 1901. Moncreiff, J.—
In this case the proctor for the defendant, having agreed to anissue with the proctor on the other side, opened the ball byputting in a deed of transfer, intending thereby to prove that hehad paid the whole of the purchase money mentioned in the deed,amounting in all to Rs. 3,000. The sole issue raised by the judgewas as to whether the whole of the money had been paid or whetherthe defendant' had only paid Rs. 2,500. The defendant was per-fectly well aware of the onus, and with his eyes open, having putin this deed, he closed his case. The deed contained the ordinaryacknowledgment on the part of 'the transferor of the receipt of the
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full price, viz., Bs. 3,000, but in the attestation clause Mr. Bevencertifies to the payment of a sum of Bs. 2,500, being part of theconsideration, and further certifies that the sum was paid by twocheques on the Mercantile Bank. The plaintiff then called somewitnesses to prove that no more than Bs. 2,500 of the considera-tion had been paid, whereupon the proctor for the defendantsdesired to call rebutting evidence, and the judge declined to. allowhim to do so. The judge acted in his discretion, and I think hewas right, and I am not prepared to interfere with his discretion.I agree to dismiss the appeal and affirm the judgment.
Bbowne, A. J.—
I agree, and would only add .that this case shows how necessaryit is when a plea of payment is made that the dates and theamounts of the payments should be specified. Further, I wouldsuggest that, if at the inception of the trial the defendant had beenexamined as to the particulars of his payments, the issue wouldclearly have been on what date he paid Bs. 500, or rather, did hepay that sum on such and such dates. He, however, for want ofthis particularization, was given a free hand under the issues raisedto plead any payment on any date he liked, and therefore it washis duty to adduce all his evidence thereon at the outset of thecase. It does not appear to me that the matter of the plaintiffs’cross-examination afforded ground for allowing evidence inrebutta|. I therefore agree to affirm.
1901.
May 15.
Moncbbifv,
J.