025-SLLR-SLLR-2005-V-1-PIERIS-vs.-PIERIS.pdf
Pieris vs Pieris
213
CA
PIERISvs
PIERISCOURT OF APPEALWIJAYARATNE, J.,
CA 57/2000 (F)
D. C. COLOMBO 17054/LFEBRUARY 20, ANDMARCH 15,2004
Evidence Ordinance, sections 62, 74, 76 and 77 – Disposition by Commissionerof National Housing – Original produced in court – Should the executant becalled to prove it? – Public document – Presumption to be drawn?
Held:
In view of the presumption to be drawn in respect of public douments interms of the provisions of the Evidence Ordinance, there is no requirementof evidence of the executants of such document being placed beforecourt.
Whether a particular document is a public document is a matter to bedetermined by court and not on the evidence of the executant or an officerof the Department concerned but on the nature of the document asexplicit on the face of it.
When the rules of evidence require that the court should presume thegenuineness of the public document, the burden of rebutting such suchpresumption is with the party who challenges same.
APPEAL from the judgment of the District Court of Colombo.
Padmasiri Nanayakkara with Indika de Alwis for defendant appellant
J.C. Boange with Laxman Amerasinghe for plaintiff respondent
April 26, 2004
WIJAYARATNE, J.
This is an appeal preferred by the defendant – appellant from the judgmentof the learned Additional District Judge of Colombo dated 27. 01.2000granting the relief claimed by the plaintiff and entering judgment in plaintiff- respondent’s favour.
214
Sri Lanka Law Repons
(2005) 1 Sri L. R.
The plaintiff – respondent instituted action in the District Court ol Colomboseeking declaration ol title to the land in suit described in the schedule to theplaint, and she is entitled to construct a house thereon to eject the defendantfrom the premises in suit and to recover damages, as estimated, from thedefendant and to enjoin the defendant from obstructing the plaintiff. Thedefendant answering the plaint claimed long continued possession of theproperty and premises described in the plaint and disputed that plaintiff everhad any possession thereof. In answer to the plaintiff’s claim of title derivingIrom a disposition given by the Commissioner of National Housing thedefendant pleaded ignorance of any document as referred to in the plaint andfurther stated that if there is any document as averred in the plaint, it is a forgeryand that the plaintiff should prove the existence of a legally valid document asreferred to in the plaint.
At the commencement of the trial the parties’ plaintiff and the defendantshave suggested several issues numbering 16. The issue No. 2 suggested bythe plaintiff relates to her having acquired title to the premises in suit from adisposition by the Commissioner of National Housing and issue No. 13suggested by the defendant appellant as to the effect whether the documentNo. 4146 (later marke in evidence as 9) was a forgery.
At the conclusion of the evidence, having had the benefit of submissions• made by both parties the learned trial judge answered issues No. 1 to 10suggested by the plaintiff in the affirmative and issues Nos. 13 to 16 in thenegative. The learned trial judge also answered issues Nos. 11 and 12 in theaffirmative holding that the plaintiff had the possession of the premises insuit and she is entitled to buiid thereon. Having so answered the issues, thelearned trial judge gave judgment and entered decree in favour of the plaintiffas prayed for in the plaint.
Aggrieved by such judgment, the defendant preferred this appeal on severalgrounds urged in this petition of appeal. However at the hearing of the appeal,arguments were confined to the main issue of the document property to be adisposition by the Commissioner of National Housing was accepted asevidence contrary to law and without proof of due execution of such documentand it is a misdirection of law on the part of the trial judge to have accepted thedocument P9 as evidence and to act upon it to hold that the plaintiff derivedtitle to the property in suit upon the same. It was the contention of the defendant- appellant that document P 9 (disposition 4146) should have been proved bythe evidence of the executants thereof or any other officer of the department,specially in the absence of a seal of office present on the document, before thesame could have been accepted as evidence and acted upon, and even if it isto be considered a public document.
CA
Pieris vs Pieris (Wijayaralne, J.)
215
I am unable to agree with the arguments of the learned counsel for thedefendant – appellant in view of specific provisions of the Evidence OrdinanceSection 74 subsection (a) (iii) of the Evidence Ordinance which describes
“ (a) documents forming the acts, or record of the acts-
Of public officers,'.as a public document .
In terms of the provisions of section 62 of the Evidence Ordinance theproduction of the document itself is the primary evidence.and in terms ofsections 76 and 77 the production of the original document itself is theproof of the contens thereof. The disposition No. 4146 marked P9 is theoriginal of the purported disposition of the premises in suit in favour of theplaintiff – respondent. In terms of the provisions of section 79 of theEvidence Ordinance the court is bound to presume the genuineness ofthe document and the officer who purported to execute the same was theCommissioner of National Housing as described therein. Accordingly thelearned trial judge correctly admitted the document P9 as evidence andacted upon it to decide the matter of title to the premises claimed by theplaintiff-respondent.
In view of the presumption to be drawn in respect of public documentsin terms of the provisions of the Evidence Ordinance there is no requirmentof evidence of the executants of such document being placed before thecourt. Whether a particular document is a public document is a matterto be determined by the court, not on evidence of the executants or anofficer of the department concerned but on the nature of the documentas explicit on the face of it. When the rule of evidence require that thecourt should presume the genuineness of the public document, theburden of rebutting such presumption was with the party who challengedsame.
In the instant case the defendant – appellant whose burden it was torebut such presumption especially in view of the fact that he put the samein issue (issue 13), has failed to lead any evidence of rebuttal. Accordinglyhis arguments should fail.
Upon examination of the judgment, the learned trial judge appears tohave reasoned that document P9 should be accepted as it has been dulyregistered. Although it is not the correct basis of admission of such
216Sri Lanka Law Reports(2005) 1 Sri L. R.
document, the fact that the document P9 is a document admissible interms of the provisions of the Evidence Ordinance, justify the conclusionof the learned trial judge that the plaintiff – respondent acquired title to thepremises in suit on such documant marked P9. The decision of thelearned trial judge to grant the relief claimed by the plaintiff – respondentstems from his conclusion and finding that plaintiff is the lawful owner ofthe premises in terms of P9.1 see no reason to interfere with the judgmentappealed from.
In the result the appeal of the defendant – appellant is dismissed withcosts.
Appeal dismissed.