046-SLLR-SLLR-2005-V-3-NANDAWATHIE-vs.-JINASOMA.pdf
CA
Nandawathie vs. Jinasoma (Wijeyaratne J.)
275
NANDAWATHIEVS.JINASOMACOURT OF APPEAL.WIJEYARATNE., J.CALA 301/2002 (LG)DC GAMPAHA35471/L.NOVEMBER 29,2004.
Civil Procedure Code, sections 121, 175, 175(2) – Refusing to allowdocument not in the list – Discretion of Court ? – Failure to list or delay ofproducing documents ? – Consequences.
On leave being sought –
HELD:
Per Wijeyaratne, J.
Upon the literal reading of the provisions of section 121 readwith section 175, it is true that the document that has not beenlisted as required by law should not be allowed in evidence.However, the purpose of reading such document is to establishfacts and assist Court in determining the facts. The purpose ofreading documents in evidence is either to support thecontention of the party or to destroy the case of the oppositeside.
Mere delay in producing the documents or failure to list sameon the part of the defendant should not stand in the way ofserving ends of justice, through the establishment of the truth.
276
Sri Lanka Law Reports
(2005) 3 Sri L. R.
In this particular instance the trial Judge who allowed anotherdocument, which is referred to in the other document toestablish such fact is not justified in rejecting the 2nddocument. He has not used his discretion judiciously.
APPLICATION for leave to appeal with leave being granted from an
order of the District Court of Gampaha.
Case referred to :
Kandiah vs. Visvanadan 1991 1 Sri LR 269.
S. A. D. S. Suraweera for petitioner.
M. U. M. AM Sabry for respondents.
Cur. adv. vult.
August 1, 2005.
WIJEYARATNE J.,This is an application for leave to appeal from the Order of theLearned District Judge refusing to allow the document marked V14to be read in evidence by the witness for the defendant when givingevidence. This document was to be marked at the trial in a caseinstituted by the plaintiff seeking a declaration that the plaintiff isentitled to right of servitude over the land of the defendant givenaccess of his land described in schedule 02 of the plaint or in thealternative to declare the plaintiff entitled to such right of way ofnecessity.
The defendant filing answer denied the existence of such roador the right of the plaintiff to use such road over her land and said
CA
Nandawathie vs. Jinasoma (Wijeyaralne J.)
277
that the means of access to the land claimed by the plaintiff wasgiven in the plan bearing number 65/64 marked as lot 05 in thesaid plan.
After parties raised several issues on the disputed fact, the caseproceeded to trial by the plaintiff giving his evidence, leading otherevidence of the other witnesses and reading the several documentsin evidence and thereafter the defendant called two witnesses andthrough the last witness tried to produce these documents, a planshowing the sub division of lots 9 and 10 in the said plan No. 65/64being subdivided.
The defendant’s counsel moved to mark this plan No. 310-2Kthrough the last witness of the defense who also produced deedNo. 48 dated 03.01.2002 by which the plaintiff in the present actionconveyed the lot 02 of Plan No. 310-2K marked V14 being subdivision of lot 9 and 10 of Plan No. 65/64. However, when this planV14 was to be read in evidence, the counsel for the plaintiff objectedto the same on the ground that the same has not been listed under-section 121 of the Civil Procedure Code.
After hearing submissions in support of the objections and indefense, the Learned Trial Judge made order refusing to allow suchdocument being marked. The Learned trial Judge refused theapplication on the basis that it is not a fit case for him to exercisethe discretion under section 175(2) of the Civil Procedure Codebecause the trial commenced on 21.01.1997.
The defendant has not taken any steps to list these documentseven as at 01.04.2002. The Learned District Judge appears to haveconsidered that the defendant is not justified in not listing this
278
Sri Lanka Law Reports
(2005) 3 Sri L R.
document even after several years of the commencement of thetrial. However the defendant's position was that the defendant wasnot relying on this document to prove her case and that was notone of his documents but that of the plaintiff who suppressed theexistence of such documents and such document is contrary tothe position taken up by the plaintiff and the claim made in hisplaint and in evidence.
The very document is dated 22.08.2001 the date after the closureof the plaintiff’s case.
Being aggrieved by the said order of the Learned District Judgerefusing to allow to read such document in evidence, the defendantmade this application for leave to appeal. Court granted leave onthe question whether the Learned District Judge has used hisdiscretion under section 175(2) of the Civil Procedure Code lawfullyand justifiably.
In considering the argument it is significant to note that theLearned District Judge has allowed V13, Deed No. 48 dated
to be read in evidence without any objection from thePlaintiff. The document sought to be imported and rejected namelyV14 is the very document that is referred to in document V13 readin evidence.
Examining the evidence on record it is clear that the defendant scounsel attempted to establish the fact that the very Plaintiff whodenied the existence on plan No. 65/64 and having acted upon ithas during the pendency of the action too acted upon the sameand proceeded to subdivide lot No. 9 and 10 of 65/64 dated06.04.1964. V13 clearly established that the very plaintiff hastransferred the rights on said deeds describing the property
CA
Nandawathie vs. Jinasoma (Wijeyaratne J.)
279
conveyed as subdivided lots 9 and 10 of Plan No. 65/64, thealternative is that facts so established is inconsistent with theplaintiffs position from- his conduct and the fact that the plaintiff'sevidence in support of his claim cannot justifiably be acted upon.
Upon the literal reading of provisions of section 121 read withsection 175, it is true that the document has not been listed asrequired by law and should not be allowed in evidence. Howeverthe purpose of the reading of such document is to establish factsand assist Court in determining the facts after ascertaining thetruth is most important to be borne in mind of the trial Judge. Thepurport of reading documents in evidence is either to support thecontention of the party or to destroy the case of the opposite party.
In the case of Kandiah vs. Visvanadan(1) it was held that whetherleave of Court should be granted under section 175(2) to read thedocument not listed under 121(2) is a matter eminently within adiscretion of the trial Judge. The same Judgment held further theprecedents indicated the instances of granting such leave as –
where it in the interest of justice to do so.
where it is necessary for the ascertaining of the truth
where sufficient reasons are adduced for the failure to listthe documents, (as for instance where a party is ignorantof its existence before the trial)
This instance eminently fit the facts of the present case. Thedefendant's position of the fact that they became aware, of thesedocuments subsequently ; the very date of the documents indicatesthe preparation of the same only after the closure of the plaintiff’scase. The reading of the evidence in document marked V14 was
280
Sri Lanka Law Reports
(2005) 3 Sri L. R.
sought in the name of justice and for the ascertainment of thetruth namely the plaintiff who denied the plan No. 65/64 being actedupon has himself acted contrary to his evidence and denial of suchfacts. Besides, when the Court has allowed the document V13conveying the land described as being depicted in Plan V14, thereis no justification for shutting out such plan only because evenotherwise the Court that admitted document marked V13 cannotoverlook the fact of the description of the property conveyed by theplaintiff with reference to the plan, the use of which he denied.
In such circumstances, the mere delay of producing thesedocuments or failure to list the same on the part of the defendantshould not stand in the way of serving ends of justice through theestablishment of the truth and in this particular instance the learnedTrial Judge who allowed one document to establish such fact isnot justified in rejecting the 2nd document. Therefore he has notused his discretion judiciously.
Accordingly the appeal is allowed and the Learned District Judgeis directed to admit the document marked V14 bearing plan No.310-2K dated 22.08.2001 prepared by J. M. D. T. Patrick Reginald,Licensed Surveyor and the Order is made setting aside theimpugned order of the Learned District Judge dated 16.07.2002rejecting the said document marked V14. The Learned Trial Judgeis directed to admit the said document in evidence and proceedwith the trial accordingly to law. The appeal is allowed with costs.
Appeal allowed.
Trial judge directed to admit the document in evidence.