Sri Lanka Law Reports
AMERASINGHE, J., DHEERARATNE, J.
AND WADUGODAPITIYA, J.
S.C 30/90 & 31/90.
C MT. LAVINIA 2300 RE.
APRIL 01, 1992.
Landlord and tenant – Reasonable requirement – Traversal of jurisdiction -Production of copy of notice to quit – Secondary evidence – Civil Procedure Codess. 75 (d), 76 – Evidence Ordinance ss. 65, 66 – Reconstruction of lost record.
What section 76 of the Civil Procedure Code requires is that the plea ofwant of jurisdiction should not be rolled up with other pleas and averments.It should stand alone. "Separate" and "distinct" as they appear in section 76 arewords of similar signification, the latter word adding to the plea the quality ofbeing clear and well defined. The traversal of jurisdiction must be separate fromother pleas and averments. The separateness of the plea need not necessarilybe achieved by that plea being taken in a separately numbered paragraph,although that ought usually to be the case. The separateness could be achievedby taking the plea in a separate paragraph or subparagraph.
Per Dheeraratne, J:
“The wording of section 76 is unsatisfactory, because, it gives sanctionto a plea of bare denial of jurisdiction, which encourages a defendant to subvertcivil litigation to a game of hide-and-seek. This ought not to be permitted at atime when the public outcry against laws delays is articulated louder and clearerthan before. The remedy lies with the legislature and not with us."
In paragraph 12 of the plaint, the plaintiff averred that by letter dated 15.01.1983 he gave one year's notice in writing of the termination of the tenancyand that a copy of the letter and a copy of the registered postal article in proofof posting that letter were annexed to the plaint. The defendant denied thisaverment in his answer. In this context, it would be a sheer pretence to givenotice to the defendant to produce the original of the notice. Notice to producethe original is not served in order to give the opponent notice that the documentmentioned in it will be used by the other party and thus enable the opponentto prepare counter evidence, but so as to exclude the objection that all reasonablesteps have not been taken to procure the original document.
Joonoos v. Chandraratne (Dheeraratne, J.)
The requirement of the notice to produce a document is not dispensed with onlyin the six cases enumerated in section 66 but also, as the proviso states, inany other case in which the court thinks fit to dispense with it.
No notice to produce the notice ever need be given. No notice to produce thenotice to quit in an action to recover possession of land is ever necessary. Thecopy of the notice could, in terms of section 66 (1) of the Evidence Ordinance,have been produced without giving notice to the defendant to produce it.
As the record had been lost, it could be reconstructed from the briefs ofthe judges of the Supreme Court and Appeal Court.
Cases referred to
Blue Diamonds Ltd. v. Amsterdam-Rotterdam Bank SC 17/91 SC Minutes
of 23. 09. 1992.
Rex v. Turner (1910) 1 KB 346.
Practice Note per Lord Goddard C.J. (1950) 1 All ER 37.
Podisingho v. Perera 75 NLR 333.
APPEAL from the judgment of the Court of Appeal.
Miss. Maureen Seneviratne, P.C., with Hilton Seneviratne for defendant-appellant.P. A. D. Samarsekera, P.C., with Harsha Amarasekera for plaintiff-respondent.
Cur. adv. vult.
18 May, 1993.
The Factual Background
The plaintiff-respondent (landlord) filed action on 10.1.1985 in theDistrict Court of Mt. Lavinia to have the defendant-appellant (tenant)ejected from the demised premises on the ground of reasonablerequirement. By para 1 of the plaint the plaintiff-respondent averredthat the defendant resides, the land and the premises in respect ofwhich the action is brought is situated and the cause of action setout arose, within the local limits of the District Court of Mt. Lavinia,namely at Wellawatta. In terms of section 9 of the Civil ProcedureCode, it is sufficient if anyone of the above enumerated conditionsexisted within the local limits of the jurisdiction of the District Courtof Mt. Lavinia for the action to be instituted in that court. Section45 of the Civil Procedure Code requires every plaint to contain astatement of facts setting out the jurisdiction of the court to try and
Sri Lanka Law Reports
determine the claim in respect of which the action is brought ; thereis no doubt that the averments in para 1 of the plaint are sufficientto satisfy the requirements of the above-mentioned section. The plaintalso averred by para 12 that by letter dated 25.1.1983, the plaintiff-respondent gave the defendant-appellant notice in writing of thetermination of the tenancy and required the defendant-appellant toquit and deliver the premises on or before 31.1.1984 ; and that acopy of that letter and a copy of the postal article of registration ofthe letter, marked X1 and X2 respectively, were annexed and pleadedas part and parcel of the plaint.
Answer of the defendant-appellant was filed on 24.7.1985, whichcontained among other averments, a claim-in-reconvention forrecovery of a sum of money alleged to represent overpayment ofrent. The only averments in the answer which seek to traverseaverments Nos. 1 (jurisdiction) and 12 (notice to quit) of the plaintare the following ; and I set them out in full
"1. The defendant denies all and singular the avermentscontained in the plaint except those specifically admitted here.
2. Answering paragraphs 1, 7, 12, 13, 14, 15, 16, 18 and19 of the plaint the defendant denies the averments containedtherein and puts the plaintiff to the strict proof thereof.
The trial commenced on 27.8.1987 ; admissions were recordedand issues raised. Among the plaintiff-respondent's issues, was theissue "has this court jurisdiction to hear and determine the action".
The plaintiff-respondent giving evidence sought to produce as P1a copy of the notice of termination of the tenancy referred to in theplaint. Objection was taken to the production of a copy of that noticeby learned President's Counsel for the defendant-appellant on theground that no notice had been given to the defendant-appellant toproduce the original. Learned counsel for both sides madesubmissions to the learned District Judge on sections 65 and 66 ofthe Evidence Ordinance. On application of counsel for the plaintiff-respondent to give him an opportunity to submit in support of hissubmission a treatise on the law of evidence, which he did not havein his possession at that time, the learned trial Judge postponed thehearing for 30.9.1987. After several dates of postponement of thehearing for diverse reasons, the case came up for trial again on27.2.1990.
Joonoos v. Chandraratne (Dheeraratne, J.)
On that day, the case came up before a different judge, the formerhaving gone on transfer. Learned counsel for the defendant-appellantinvited the court to disregard the issues raised and the evidencealready led and to commence the trial de novo. Court allowed thatapplication ; admissions were recorded afresh and counsel for bothsides raised issues. No issue was raised on behalf of the plaintiff-respondent on the question of jurisdiction of the court to hearand determine the action, but among the issues raised by learnedcounsel for the defendant-appellant was the following
(7) Has the court the jurisdiction to hear and determine this case?
Learned counsel for the plaintiff-respondent objected to the aboveissue on the ground that the answer did not conform to therequirements of section 76 of the Civil Procedure Code in order toenable learned counsel for the defendant-appellant to raise suchan issue. The court upheld the objection. Learned counsel for thedefendant-appellant then applied for a postponement of the trial toenable her either to amend the pleadings or to canvass thecorrectness of the learned trial Judge's order 'in a higher court'. Thisapplication was disallowed.
The plaintiff-respondent was thereafter called to give evidence andat the stage she sought to produce a copy of the notice to quit dated25.1.1983 (P12), it was objected to by learned counsel for thedefendant-appellant on the same ground as was urged at the abortivetrial. The learned trial Judge overruled the objection and the plaintiff-respondent continued to give evidence in examination-in-chief andthereafter her cross examination commenced. When the trial wasadjourned that day the plaintiff-respondent was still under crossexamination and the trial was fixed for 4.5.90, 24.5.90 and 26.6.90.
On 14.4.1990, leave to appeal and revision applications were filedon behalf of the defendant-appellant in the Court of Appeal seekingto canvass the correctness of both interlocutory orders made by thelearned trial Judge on 27.2.1990. Further proceedings before the DistrictCourt were stayed by order of the Court of Appeal until the revisionapplication was disposed of finally. By judgment of the Court of Appealdated 24.7.1990 both applications were dismissed and the presentappeal is the sequel.
Sri Lanka Law Reports
(1993) 1 Sri L.R.
The Order Upholding the Objection to the Issue on Jurisdiction.
The plea of want of jurisdiction being a dilatory plea, the law wasconsistent in requiring such a plea to be taken up by a defendantat the earliest opportunity. See section 39 of the Judicature ActNo. 2 of 1978, section 43 of the Administration of Justice Law.No. 44 of 1973 and section 71 of the Courts Ordinance No. 1 of1889. As far as general requisites of an answer of a defendant areconcerned, section 75 (d) of the Civil Procedure Code specifies, ananswer shall contain a statement admitting or denying the severalaverments of the plaint, setting out in detail plainly and concisely thematters of fact and law, and the circumstances of the case uponwhich the defendant means to rely for his defence ; this statementshall be drawn in duly numbered paragraphs, referring by numbers,where necessary, to paragraphs of the plaint. The averments ofthe answer of the defendant-appellant, no doubt, conform to theserequirements, in the sense that the averment of the plaintiff regardingjurisdiction is denied. But section 76 of the Civil Procedure Coderequires a defendant intending to rely on the defence of want ofjurisdiction to conform to an additional formality and that sectionreads
"If the defendant intends to dispute the averment in the plaintas to jurisdiction of the court, he must do so by a separate anddistinct plea, expressly traversing such averment.11
"Separate" and "distinct" are words of similar signification, the latterword adding to the plea the quality of being clear and welldefined.It may be asked ; separate from what? The obvious answer seemsto be – separate from other pleas and averments. What the sectionrequires is that the plea of want of jurisdiction should not be rolledup with other pleas and averments. It should stand alone. The word"expressly" means as opposed to impliedly and the word "traverse"is synonymous with the word "deny". Odgers on pleading and practice19th edition page 128 defines "traverse" as "the express contradictionof an allegation of fact in an opponent's pleadings ; it is generallya contradiction in the very terms of the allegations. It is, as a rule,framed in the negative because the fact which it denies is, as a rule,alleged in the affirmative." The word "plea" means "any contentionput forward by a defendant by way of answer to the plaintiff'sdeclaration." (see Oxford Companion to Law, David M. Walker, 1980).
SCJoonoos v. Chandraiatne (Dheeraratne, J.)91
The plea could be either a negative or a positive contentionand generally, even a bare denial constitutes a plea. (For instancesof inadequacy of a bare denial to form a plea see the observationsof Fernando, J. in Blue Diamonds Ltd. v Amsterdam-RotterdamBank <’>. The separateness of the plea need not necessarily beachieved by that plea being taken in a separately numbered para-graph, although that ought usually to be the case. The separatenesscould be achieved by taking the plea in a separate paragraph orsubparagraph. The denial of jurisdiction in the defendant's answerfully reproduced elsewhere in this judgment patently lacks thatquality of separateness and the learned trial Judge was correct inupholding the objection raised on behalf of the plaintiff-respondent.
It was not obligatory on the part of the defendant-appellant, interms of section 76 of the Civil Procedure Code, to have disclosedin his pleadings, the factual basis of his plea of want ofjurisdiction ; such a factual basis remained undisclosed, even duringthe argument before us. The wording of section 76 is unsatisfactory,because, it gives sanction to a plea of bare denial of jurisdiction,which encourages a defendant to subvert civil litigation to a gameof hide-and-seek. This ought not to be permitted at a time whenthe public outcry against laws delays is articulated louder and clearerthan before. The remedy lies with the legislature and not with us.
I may observe for the sake of completeness, that in terms of theproviso to section 39 of the Judicature Act No. 2 of 1978, if it shouldappear to the learned trial Judge in the course of the proceedingsthat the action was brought in that court when it has no jurisdiction,intentionally and with previous knowledge of the want of jurisdiction,he shall be entitled at his discretion to refuse to proceed further anddeclare the proceedings null and void.
The Order Disallowing the Objection to Produce a Copy of theNotice to Quit.
Section 65 of the Evidence Ordinance inter alia provides that secondaryevidence may be given of the existence, condition, or contents ofa document, when the original is shown or appears to be in thepossession or power of the pejson against whom the document issought to be proved and when, after notice mentioned in section 66,such person does not produce it. Section 66 reads
Sri Lanka Law Reports
(1993) 1 Sri L.R.
"Secondary evidence of the contents of the document referredto in section 65 subsection (1), shall not be given unless the partyproposing to give such secondary evidence has previously givento the party in whose possession or power the document is, orto his attorney-at-law, such notice to produce it as is prescribedby law ; and if no notice is prescribed by law, then such noticeas the court considers reasonable under the circumstances of thecase;
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 to dispensewith it
(1) when the document to be proved is itself a notice" ;
(2 to 6 are omitted).
It will be observed that the requirement of the notice to producea document is not dispensed with only in the six cases enumeratedin the section, but also as the proviso states, in any other case inwhich the court thinks fit to dispense with it. By para 12 of theplaint, the plaintiff-respondent averred that by letter dated 15.1.1983,he gave one year's notice in writing of the termination of thetenancy and that a copy of the letter and a copy of the registeredpostal article in proof of posting that letter were annexed to the plaint.By paras 1 and 2 of the answer, the defendant-appellant denied theplaintiff-respondent's averment. The direct inference of that denialis that the plaintiff-respondent did not send such a notice to thedefendant-appellant and therefore the defendant-appellant did notreceive the same. In this context, it would be a sheer pretence togive notice to the defendant-appellant to produce the original ofthe notice. It is difficult to imagine that the law expects theplaintiff-respondent to indulge in such a meaningless charade. Noticeto produce (the original) is not served in order to give the opponentnotice that the document mentioned in it will be used by the otherparty, and thus enable the opponent to prepare counter evidence,but so as to exclude the objection that all reasonable steps havenot been taken to procure the original document. See Cross onEvidence (1985) 6th Edition 605 ; Law of Evidence C. D. Field (1990)11th edition 2779. It seems to me that the learned trial Judgeexercised that discretion in terms of section 66 and admitted the
Joonoos v. Chandraratne (Dheeraratne, J.)
copy of the notice to be produced and I am unable to say that hewas in error when he did so.
Since arguments in the Court of Appeal and in this court pro-ceeded on another basis as to whether the notice to produce thedocument could have been dispensed with by the learned trial Judgein terms of subsection (1) of section 66, namely on the footing thatthe document itself is a notice, I would now examine that position.It may be observed that the terminology used in the section is "whenthe document to be produced is itself a notice" and not "itself sucha notice".
Learned President's Counsel for the defendant-appellant reliedon the case of Rex v. Turner (2) to support the contention thatthe word “notice" in section 66 (1) refers only to a notice to produce.I am unable to agree that any part of that judgment supportsher contention. That very case was referred to much later in thePractice Note reported in <3) and this is what Lord Goddard CJ. hadto say
"The other point is that I am told there has been an inquiryfrom the quarter sessions, or a point has been raised at a certainborough quarter sessions, whether or not a police officer can giveevidence of the contents of the notice that he serves on theprisoner without giving a notice to produce it. I am surprised thisquestion should have been raised because I thought it was a wellknown rule of evidence relating to documents that no notice toproduce the notice ever need be given. The classic case, ofcourse, is a notice to quit where an action is brought to recoverpossession of land, (emphasis added) No notice to produce thenotice is ever necessary, and, if authority were wanted, it wasso expressly ruled by this court in R. V. Turner lz> in whichChannell, LJ., pointed out that, if you had to give notice to producethe notice, you would have to give notice to produce the noticeto produce, and so ad infinitum, if ever the question is raisedagain, chairmen of quarter sessions can rest assured that it isnot necessary to give notice to produce the notice which has beenserved on the prisoner.
See also Monir, Law of Evidence (1986) at page 811.
Sri Lanka Law Reports
I hold that the document too could have been admitted in termsof section 66 (1) of the Evidence Ordinance without notice beinggiven to the defendant-appellant to produce the same. Before I partwith this point, let me say a word about the case of Podisingho v.Perera <4> reference to which has been made in the judgment of theCourt of Appeal. It seems to me that any reference to that case waspremature and inelevant, as it deals with adequacy or probative valueof an item of secondary evidence, which should concern the learnedtrial Judge only at a later stage of the proceedings before him andnot at the stage production of that document as secondary evidencewas sought.
I hold that the learned District Judge came to the correct conclusionon both interlocutory matters. The appeal is dismissed with costsof this court fixed at Rs. 10,000 payable by the defendant-appellantto the plaintiff-respondent. We are informed by the parties that therecord in this case had been destroyed by fire during the civildisturbances. Therefore in order to avoid any further confusion anddelay I direct
the Registrar of this Court to transmit to the learned DistrictJudge Mt. Lavinia, immediately, a copy of the Judge's briefof this Court together with a copy of the Judge's brief of theCourt of Appeal, to enable the learned District Judge toreconstruct the record of the case ;
the learned District Judge to reconstruct the record with theaid of copies of briefs referred to in (1) above where copiesof the proceedings of the District Court are available ;
the learned District Judge to give precedence to this caseand to conclude the same as expeditiously as possible ;
the learned District Judge to have this case called in opencourt on 2nd June 1993 to fix dates of further trial. The partieswill take notice of that date.
AMERASINGHE, J. – I agree.
WADUGODAPITIYA, J. – I agree.