KANDIAH v. WISVANATHAN AND ANOTHER

024-SLLR-SLLR-1991-V-1-KANDIAH-v.-WISVANATHAN-AND-ANOTHER.pdf


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Kandiah v. Wisvanathan and another
269
KANDIAHV.
WISVANATHAN AND ANOTHERCOURT OF APPEAL
W.N.Q. PERERA, J. AND WIJEYARATNE, J.
C.A. APPLICATION 192/91WITH C.A. (L/A) 28/91DISTRICT COURT, MT. LAVINIACASE NO. 154/SPL23 AND 25 JULY 1991.
Civil Procedure – Production of unlisted document – Civil Procedure Code,
Section 175 (2)
Held:
When an unlisted document is sought to be produced by a party in a District Courttrial, the question as to whether leave of court should be granted under section 175(2)of the Civil Procedure Code is a matter eminently within the discretion of the trialJudge. The precedents indicate that leave may be granted:
where it is in the interests of justice to do so;
where it is necessary for the ascertainment of the truth;
where there is no doubt about the authenticity of the documents (as for instancecertified copies of public documents or records ot judicial proceedings);
where sufficient reasons are adduced for the failure to list the document (as forinstance where the party was ignorant of its existence at the trial).
Where the court admits such a document, an appropriate order for costs will generallyalleviate any hardship caused to the said party.
Leave may not be granted where the other side would be placed at a distinctdisadvantage.
When an objection is taken to the admissibility of a document, it is desirable thatsuch objection should be recorded immediately before any further evidence goes down.
Per Wijeyaratne, J. – “It happens frequently in District Court trials that materialwitnesses and documents have not been listed as required by law. The failure to doso entails considerable hardship, delay and expense to parties and contributes to lawsdelays. It should be stressed that a special responsibility is cast on Attomeys-at-law,who should endeavour to obtain full instructions from parties in time to enable themto list all material witnesses and documents as required by law."
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Cases referred to:
Read v. Samsuddin 01 NLR 292
Fernando v. Fernando 7 NLR 147
Killanchiya v. Clarke 2 Weer 80, 2 Leader 153
Jones v. Chennell 8 Ch. D. 506
Andris Hamy v. Dinneris Appu 2 Times 161, 162
Girantha v. Maria 50 NLR 519
S/7va v. Kindersley 18 NLR 86
Seyed Mohammed v. Perera 58 NLR 240
APPLICATION in revision of the order of the District Judge of Mount Lavinia.
Maureen Seneviratne, PC with Hilton Seneviratne for plaintiff petitioner.
A.K. Premadasa, P.C. with D.P. Mendis and G.H.A. Suraweera for 1st defendant -respondant.
Cur.adv vult.
13 September 1991.
WIJEYARATNE, J.
The plaintif-petitioner has filed this action against her brother (the 1stdefendant-respondent) and the Commissioner of National Housing (2nddefendant-respondent) averring that her mother was the tenant ofpremises No. 27, Lorenz Road, Bambalapitiya under the Trustees ofthe Shri Sammangoda Pillaiyar Kovil (Hindu Temple), Bambalapitiya,and these premises have subsequently (on 10.1.74) vested in the 2nddefendant-respondent as an excess house under the Ceiling onHousing Property Law, No. 1 of 1973. She avers that she, along withsome other members of her family, was occupying these premises withher mother as the tenant, while the 1st defendant-respondent wasresiding with his family at Wattala, and after the death of her motheron 27.7.73 the 1st defendant-respondent was attempting by fraudulentmeans to have himself recognised as “tenant" and thereafter topurchase the premises from the 2nd defendant-respondent.
Hence, the plaintiff-petitioner has filed this action to have herselfdeclared as the lawful tenant and that she is entitled to make anapplication to purchase the house from the 2nd defendant-respondent.
She has also prayed for an interim injunction –
restraining the 1st defendant-respondent from entering into anagreement with the 2nd defendant-respondent for the purchase ofthese premises;
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restraining the 1st defendant-respondent from harassing theplaintiff-petitioner and other family members and preventing themhaving access to these premises;
restraining the 1st defendant-respondent from ejecting the plaintiff-petitioner and other family members therefrom.
The 1st defendant-respondent has taken up the position that hesucceeded to the tenancy on the death of his mother having paid therents and hence he was entitled to apply to the 2nd defendant-respondent to purchase these premises.
The 2nd defendant-respondent has stated before court that he wouldbe abiding by the decision of the court and consequently would notbe participating in the trial.
After certain admissions were recorded, issues were framed and thetrial had commenced. On 6.2.91, while the plaintiff-petitioner was givingevidence-in-chief, the proceedings read as follows:-
"Further, I also sent a letter to the Trustees of the Kovil. I producemarked P20 a photocopy of this letter dated 28.5.80 (this issubject to proof). I sent a copy of this letter to the Commissionerof National Housing (this letter is read).1
It would appear that at this stage an Ejection was taken by learnedcounsel for the 1st defendant Mr. A.K. Premadasa, P.C., that thisdocument had not been listed, but this objection has not beenspecifically recorded.
The record of the proceedings continues as follows:-
"Miss Seneviratne states that though this document is not listedat the time it was marked there was no objection and thereforeshe has the right to tender it in evidence.
The defence states that under sections 121 and 175 it is essentialto list all documents and a document not so listed can only beadmitted with leave of court.”
Thereafter the learned District Judge had postponed his order for alater date after noting that unlisted documents could only be admitted
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with the leave of court. He had also given a date to counsel to submitwritten submissions and postponed the order for a later date. He hasalso noted the fact that the Trustees of the Kovil had not been listedor noticed to produce the original of this letter and that this factor isrelevant.
Subsequently, by order dated 14.2.91 he disallowed the applicationstating that what is sought to be produced is a photocopy and not acarbon copy. For this purpose the person who has the possession ofthe document should have been noticed to produce the original beforecourt but this has not been done. He has also stated that being animportant document relied on by the plaintiff, there is no sufficientreason given for the failure to list this document and that therequirements of the law cannot be touted, and made order disallowingthe production of this document through the plaintiff.
This present application has been filed to revise the said order dated14.2.91.
The relevant sections of the Civil Procedure Code are as follows:-
"50. If a plaintiff sues upon a document in his possession or power,he shall produce it in court when the plaint is presented, and shallat the same time deliver the document or a copy thereof to befiled with the plaint.
if he relies on any ether documents (whether in his possessionor power or not) as evidence in support of his claim, he shall entersuch documents in a list to be added or annexed to the plaint.
In the case of any such document not being in his possessionor power, he shall, if possible, state in whose possession or powerit is.
In the case of any action founded upon a bill of exchange,promissory note, cheque, or any negotiable instrument, if it beproved that the instrument is lost, and if an indemnity be givenby the plaintiff, to the satisfaction of the court, against the claimsof any other person upon such instrument, the court may makesuch decree as it would have made if the plaintiff had producedthe instrument in court when the plaint was presented, and hadat the same time delivered a copy of the instrument to be filedwith the Dlaint.
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A document which ought to be produced in court by the plaintiffwhen the plaint is presented, or to be entered in the list to beadded or annexed to the plaint, and which is not produced orentered accordingly, shall not, without the leave of the court, bereceived in evidence on his behalf at the hearing of the action.
121. (2) Every party to an action shall, not less than fifteen daysbefore the date fixed for the trial of an action, file or causeto be filed in court after notice to the opposite party –
a list of witnesses to be called by such party at the trial,and
a list of the documents relied upon by such party and to beproduced at the trial.
175. (2) A document which is required to be included in the list ofdocuments filed in court by a party as provided by section121 and which is not so included shall not, without the leaveof the court, be received in evidence at the trial of the action:
Provided that nothing in this subsection shall apply to documentsproduced for cross-examination of the witnesses of opposite partyor handed over to a witness merely to refresh his memory."
It should be noted that the requirement for listing of documents bythe defendant in a District Court trial was only introduced by section383 of the repealed Administration of Justice (Amendment) Law, No.25 of 1975, and subsequently by amendments made by Law No. 20of 1977 to the present Civil Procedure Code (except in partition caseswhere special provision is made). Under the old Civil Procedure Codea defendant in a District Court trial need not list his documents.
Under the old Civil Procedure Code aii the parties in Courts ofRequests cases had to list their documents and witnesses undersection 820(2) (since repealed).
The sections material to this application are sections 121(2) and 175(2)which were introduced by. Law No. 20 of 1977.
There are similar provisions in Order VII, Rules 14 and 18 of theIndian Civil Procedure Code, which read as follows:-
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"Order VII, Rule 14.
Where a plaintiff sues upon a document in his possession orpower, he shall produce it in Court when 'the plaint is presented,and shall at the same time deliver the document or a copy thereofto be filed with the plaint.
Where he relies on any other documents (whether in hispossession or power or not) as evidence in support of his claim,he shall enter such documents in a list to be added or annexedto the plaint.
Order VII, Rule 18.
A document which ought to be produced in Court by the plaintiffwhen the plaint is presented or to be entered in the list to beadded or annexed to the plaint, and which is not produced orentered accordingly, shall not, without the leave of the court, bereceived in evidence on his behalf at the hearing of the suit.
Nothing in this rule applies to documents produced for cross-examination of the defendant's witnesses, or in answer to anycase set up by the defendant or handed to a witness merely torefresh his memory."
It should be noted that Order VII, Rules 14(1) and 14(20) in theIndian Code correspond substantially to sections 50 and 51respectively in our Code.
Order VII, Rule 18(1), in the Indian Code corresponds to section 54of our Code.
There does not appear to be any provision in the Indian Codecomparable to section 121(2) in our Code whereby all parties haveto file lists of documents not less than fifteen days before the date oftrial after notice to the other side.
■»v
It should be noted that both sections 51 and 121(2) require fhe listingof documents by a plaintiff and documents not so listed may not beproduced without the leave of court (vide sections 54 and 175(2)respectively).
Order VII, Rule 18(1), (which corresponds to our section 54), prohibitsthe reception in evidence of documents which are not produced in
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court by the plaintiff when the plaint is presented or which are notentered in the list to be added or annexed to the plaint, except withthe leave of court.
Hence the question has been considered in India as to thecircumstances in which leave of court should be granted.
In Sanjiva Row's "Code of Civil Procedure (Act V of 1908)“ revisedby Malik and Singhal, 3rd Edn. 1963, Vol. i! at page 1528, it is statedas follows:-
"The object of Rules 14 and 18 is to exclude evidence, theexistence of which is doubtful, and to provide against falsedocuments being put in after the institution of a suit, but from themere fact that the document was not originally disclosed, butdisclosed at a late stage, the court will not hold that thedocuments had been fabricated falsely. And the mere fact, that adocument is produced at a late stage is not sufficient for itsrejection. If the defendant knows the case he had to meet, andthe case would not be changed by the admission of the documentand the admission of the document would not work such prejudiceas cannot be compensated for by costs or otherwise, thedocument will be admitted in evidence; and the Court may, evenin like cases, receive the document in evidence, if it is producedeven at a very late stage, if sufficient reasons are assigned forthe delay and no prejudice is caused to the other side.
In the matter of admitting documents in evidence, the Court hasa discretion, and while, generally speaking, it will be a wiseexercise of the discretion to admit such evidence, the questionmust be decided, in each case, in the light of its particularcircumstances.
. . . Even where the rules of exclusion apply and the documentscannot be filed without the leave of the Court, that leave shouldnot ordinarily be refused where the documents are officialrecords of undoubted authenticity which may assist the Courtto decide rightly the issues before it, nor indeed when the Courtis satisfied that the documents are genuine."
As to whether leave of court should be granted under section 175(2)
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is a matter eminently within the discretion of the trial Judge and woulddepend on the facts and circumstances of each case.
The precedents indicate that leave may be granted –
Where it is in the interests of justice to do so.
In the case of Read v. Samsudin (1), Fernando v. Fernando (2) andKillanchiya v. Clarke (3) it was held that technical objections shouldbe disregarded in the interests of justice and documents admitted ifdefendant was not prejudiced.
In the first named case Bonser C.J. quoted the following passage fromthe judgment of Sir George Jessel, M.R., in the case of Jones v.Chennell (4):
It is not the duty of a Judge to throw technical difficulties in theway of the administration of justice, but where he sees that he isprevented from receiving material or available evidence merely byreason of a technical objection, he ought to remove the technicalobjection out of the way, upon proper terms as to costs andotherwise.".
In the case of Andris Hamy v. Dinneris Appu (5) Sampayo J.stated –
"It has been pointed out more than once that Section 54 doesnot create an absolute bar, but in furtherance of justice and forproper investigation of cases, the Court should admit documentseven though they are not included in any list.”
Where it is necessary for the ascertainment of the truth.
In the case of Girantha v. Maria (6), Gratiaen J. held that theparamount consideration is the ascertainment of the truth andpermitted the calling of a witness in the interests of justice under theproviso to section 175 (as it then stood) of the Civil Procedure Code.
It can be said that similar considerations apply in the case of unlisteddocuments.
Where there is no doubt about the authenticity of the documents
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(as for instance certified copies of public documents or recordsof judicial proceedings).
Where sufficient reasons are adduced for the failure to list adocument (as for instance where the party was ignorant of itsexistence at the time).
Where the court allows the reception in evidence of an unlisteddocument, an appropriate order for costs will generally alleviate anyhardship caused to the other party.
Leave may not be granted where the other side would be placed ata distinct disadvantage.
The question then arises whether the learned District Judge shouldhave given leave for the admission of this document.
At the outset of the hearing learned counsel for the plaintiff-petitionersubmitted that no objection was taken immediately at the time ofmarking this document as P20, and invited attention of court to section154 of the Civil Procedure Code and the explanation attached theretoand she relied on the decisions in Silva v. Kindersley (7) and SeyedMohammed v. Perera (8), which lay down that when no objection istaken when the document is produced, it is deemed to constitutelegally admissible evidence.
Here in this case the objection appears to have been taken almostimmediately after the marking of this document and after one sentenceof evidence had been recorded. It cannot be said that no objectionwas taken though it is desirable that the objection should be takenand recorded immediately before any further evidence goes down.Hence I am of the view that the validity of the objection could havebeen considered by the learned District Judge.
Then the next question arises whether the learned District Judge hascorrectly exercised his discretion in refusing leave to produce thisdocument.
In the objections filed by the 1st defendant-respondent it is stated thatthe first date of trial in this case had been 28.7.82 and that it wasonly on 6.2.91, which was the 29th date of trial, that it was sought
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to produce this document after obtaining leave of court. This positionhas not been denied by the plaintiff-petitioner in the counter objectionsthough it was sought to give various reasons for postponement of trialon the various dates.
This is a document which comes from the plaintiff-petitioner herself,being a photocopy of a letter.sent by her, and she should have beenaware of its existence. No explanation whatsoever has been given bythe plaintiff-petitioner for the failure to list this document for such along period of time.
Therefore it cannot be said that the learned District Judge has wronglyexercised his discretion in refusing to admit this document.
It is only if the plaintiff-petitioner is given leave under section 175(2)to produce this document that the other question as to whether shecould prove the same by way of secondary evidence would arises.In view of the above finding it is unnecessary to go into these matters.
I therefore affirm the order of the learned District Judge dated 14.2.91refusing leave to produce this document.
It happens frequently in District Court trials that material witnesses anddocuments have not been listed as required by law. The failure todo so entails considerable hardship, delay and expense to parties andcontributes to laws' delays. It should be stressed that a specialresponsibility is cast on Attomeys-at-Law, who should endeavour toobtain full instructions from parties in time to enable them to list allmaterial witnesses and documents as required by law.
The application is dismissed with costs payable by the plaintiff-petitioner to the 1st defendant-respondent.
The connected Leave to Appeal Application No. 28/91 too standsdismissed.
W.N.D. PERERA, J. – I agreeApplication dismissed.