080-NLR-NLR-V-77-K.-A.-JOVIS-PERERA-Appellant-and-D.-H.-SENEVIRATNE-Respondent.pdf
H. N. G. FERNANDO, C.J.—Perera v. Seneviratne
40S
1971
Present: H. N. G. Fernando, C.J.
K.A. JOVIS PERERA, Appellant, and D. H. SENEVIRATNE,
Respondent
Landlord and tenant—Sub-letting—Requirement of evidence of paymentof rent by the sub-tenant.
A landlord who pleads a sub-tenancy has to discharge the burdenof proving that some person not only occupied the premises orsome part thereof, but also that he paid rent for his occupation.
November 18, 1971. H. N. G. Fernando, C.J.—
The only question for consideration in this appeal is whetherthe evidence justified the finding of the learned Commissionerthat the defendant had sub-let a part of the premises of whichhe was the tenant. The plaintiff’s principal witness was oneSinniah, who was alleged in the plaint to have been a sub-tenantunder the defendant. This witness commenced his evidence bystating that he had some years previously occupied some partof the premises, but that he did so because he was employed tolook after some cows kept by the defendant.
It is surprising that the examination of the witness did notterminate at this stage, and that Counsel for the defence raisedno objection to further adverse questioning on the basis that thewitness had in some complaint to the Police alleged that he hadpaid rent to the defendant. Thereafter, and again without objec-tion, plaintiff’s Counsel produced a certified copy of the complaintwhich the witness is said to have made to the Police ; whileadmitting that he had made a complaint, the witness denied thathe had in that complaint admitted any payment of rent to thedefendant.
S. C. 136/69—C. R. Colombo, 97366/R.E.
Appeal
from a judgment of the Court of Requests, Colombo.
N.Balakrishnan, for the defendant-appellant.
S. Sharvananda, for the plaintiff-respondent.
Cur. adv. vult.
404
H. N. G- FERNANDO, C. J.—Per era r. Seneviraine
In view of the clear denial by the witness that he had in hiscomplaint admitted any payment of rent to the defendant, theplaintiff could not rely on the certified copy which his Counsel“ produced Even if the plaintiff was entitled to contradict hisown witness, he could have done so only by proving that thewitness had made a different statement to the Police ; this theplaintiff failed to do, because the statement was not duly provedin evidence ; the plaintiff did not call the Police officer whorecorded the complaint or any other officer who could testify toits authenticity.
There was thus no legal evidence to counter that given by theplaintiff’s principal witness that he had occupied some part ofthe premises as an employee of the defendant, and not as atenant. The plaintiff, who had on a single occasion seen thewitness Sinniah standing in the garden, had the audacity to markon a sketch as ‘ X ’ the room which he alleged had been occupiedby that witness. Even if he did so in good faith, he was at thebest merely repeating some statement made to him by a personwho did not give evidence at the trial.
In the result, the case for the plaintiff was closed without therebeing any evidence to discharge the burden of proving the allegedsub-tenancy. Had the learned Commissioner appreciated thisposition, I greatly doubt whether certain deficiencies in theevidence of the defendant’s wife would have induced him toreach the finding that there had been any sub-letting to Sinniah.Even if Sinniah had in a former complaint alleged that he hadpaid rent to the tenant of these premises, that complaint couldwell have been false. Evidence of a former statement by awitness serves at the highest to contradict his evidence in Court,but does not suffice to establish the truth of the former statement.
A plaintiff who pleads a sub-tenancy has to discharge theburden of proving that some person not only occupied thepremises or some part thereof, but also that he paid rent forhis occupation. There was no proof in this case of any suchpayment.
The appeal has therefore to be allowed, and the plaintiff’saction is dismissed with costs in both Courts.
Appeal allowed.