050-SLLR-SLLR-2006-V-3-RAJAPAKSE-vs.-COORAY.pdf
CA
Rajapakse Vs Cooray(Imam, J.)
393
RAJAPAKSEVS.COORAYCOURT OF APPEALIMAM. J.
SRISKANDARAJAH.J.
CA LA 433/2003 (LG)
DC PANADURA1600/L.
OCTOBER 15. 2004.
JULY 7. 2005.
Civil Procedure Code- Sections 151, 154 (1), 155- Evidence Ordinance,Section 90 -Identification of a document ? – Admissibility.
The plaintiff-respondent instituted action against the defendant-petitionerseeking a declaration of title to the land in question. The defendant-petitionercommenced the case, and while giving evidence sought to produce a receiptdated 10.10.1960. The plaintiff-respondent objected on the basis that thesaid document has not been properly identified by the witness. The plaintiff-respondent was permitted to cross examine the witness in order to determinewhether the witness could identify the document in issue.
The trial Judge upheld the objection and disallowed the document.HELD:
Before a witness is allowed to identify a document, he should generallybe made by proper questioning to state the grounds of his knowledgewith regard to it.
If on the document being tendered the opposing party objects to itbeing admitted in evidence, two questions arose for the Court (a) whetherthe document is authentic (b) whether it constitutes legally admissibleevidence as against the party who is sought to be affected by it.
A close analysis of the evidence of the petitioner reveals her incapacityto identify the receipt, her lack of knowledge of the relevantcircumstances.
394
Sri Lanka Law Reports
(20C6) 3 Sri L R.
APPLICATION for leave to appeal from an order of the District Court ofPanadura.
Lasitha Kanuwanaarachchi for defendant-petitioner.
Saliya Peiris for plaintiff-respondent.
Cur. adv. vult.
September 22, 2005IMAM., J.
The Defendant-Petitioner (hereinafter referred to as the petitioner)has presented this application seeking to grant leave to Appeal againstthe order of the Learned District Judge of Panadura dated 30.10.2003,and to set aside the aforesaid order, amongst other reliefs prayed for.Leave to Appeal was granted on the question of admissibility of thedocument (receipt) dated 10.10.1960 marked as ©l and sought to beproduced at the trial by the Petitioner on 24.11.2004.
The facts of the case are briefly as follows: The Plaintiff- respondent(hereinafter referred to as the Respondent) instituted action bearingNo. 1600/L in the District Court of Panadura against the Petitionerseeking a declaration of title with regard to the land morefully describedin the schedule to the plaint, and an order ejecting the petitioner fromthe said property, inter alia other reliefs sought for. This case wastaken up for trial on 20.05.2003 with 4 issues being raised by theRespondent, and 09 issues raised by the Petitioner. The Petitionercommenced the case and while giving evidence sought to produce areceipt dated 10.10.1960 attempting to mark the receipt as ‘©a’ towhich application the Respondent objected on the basis that the saiddocument had not been sufficiently identified by the witness namelythe petitioner. With this regard only the Respondent was permitted tocross examine the witness in order to determine whether the witness(Petitioner) could identify the document in issue. Subsequently thelearned District Judge delivered his order on 30.10.2003 upholding the
CA
Rajapakse Vs Cooray(Imam, J.)
395
alleged to have been issued to Benedict Fonseka by Emaly C.Cooray.The evidence of the Petitioner was that she had not been a witness tothe said transaction, and that her husband Benedict Fonseka hadpassed away.
It was stated by the Petitioner in her evidence that she and herhusband Benedict Fonseka came as tenants of the Respondent andhis predecessors and paid rent at the rate of Rs. 19/- on which herhusband Benedict Fonseka was given receipts by Emaly C. Coorayand Daya Cooray the holder of the power of Attorney of the respondentacting as agents of the Respondent. It was contended on behalf of thePetitioner that she has a fair knowledge of the aforesaid documents,that she obtained these documents through her husband, who is nowdead, and that these receipts have been produced through propercustody. Counsel for the Petitioner referred to section 154(1) of theCivil Procedure Code which states, "Every document or writing whicha party intends to use as evidence against his opponents must beformally tendered by him in the course of proving his case at the timewhen its contents or purports are first immediately spoken to by a
witness" It is further contended on behalf of the petitioner
that the Document alwas properly listed, and that the Respondentdid not object to the marking of q1 on this ground. It was howeveraccepted by the Petitioner that the Petitioner was unable to identifythe contents of alas her eye sight is weak and that she is illiterate.Section 90 of the Evidence Ordinance was relied on by Counsel for thePetitioner, who contended that the contents of ai need not be provedas it is a Document more than 30 years old, being dated 10.10.1960.Section 90 of the Evidence Ordinance states that" Where any documentpurporting or proved to be thirty years old is produced from any custodywhich the Court in the particular case considers proper, the Court may
objection raised by the Respondent and hence disallowing the Petitioner
to mark'the Document as
In her statement of objections the Petitioner does not dispute theownership of the respondent to the relevant property and submits thatthe aforesaid property was rented out by the successor to therespondent to Benedict Fonseka her husband for a monthly rental ofthirty five Rupees; that since 1960 the husband of the Petitioner enjoyedthe buildings in the property as a tenant, and that since the death ofher husband, the Petitioner has become the statutory tenant. On
it is apparently an original receipt
examination of the original receipt
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Sri Lanka Law Reports
(2006) 3 Sri LR.
presume that the signature and every other part of such documentwhich purports to be in the handwriting of any particular person is inthat person’s hand writing and in the case of a document executed orattested, that it was duly executed and attested by the person bywhom it purports to be executed."
It was submitted on behalf of the Respondent that the Petitionerhad shown the Power of Attorney Holder of the Respondent (father ofthe Respondent) and said that it was he who had given the receipts!and other receipts. It was pointed out that the receipt sought to bemarked as si was signed by Emaly C.Cooray, and that this too indicatesthat the Petitioner had failed to identify si. It was also averred onbehalf of the respondent that si had not been properly listed, as thelist of documents refer to assessment No. 238/1, although thedocument relates to assessment No. 238. It was further pointed outthat the explanation to section 154 of the Civil Procedure Code statesthat if on the document being tendered the opposing party objects toits being admitted in evidence, two questions arise for the Court, firstlywhether the document is authentic, in other words whether it is whatthe party tendering represents it to be. Secondly whether it constituteslegally admissible evidence as against the party who is sought to beaffected by it. This principle it was submitted is contained in
R. S. R. Coomaraswamy’s “The Law of Evidence," Volume II Book 1at page 116.
Section 155 of the Civil Procedure Code was also referred to by theRespondent, which states "Before a witness is allowed to, in anyway,identify a document, he should generally be made, by properquestioning, to state the grounds of his knowledge with regard to it."
The Petitioner although suffering from weak eye sight and beingilliterate, in evidence had admitted her difficulty in identifying si ,andalso displayed a lack of knowledge with regard to the relevantcircumstances under which si was written. In her evidence she statedthat Emaly Cooray had probably signed si and other receipts whichwere given to her husband Benedict Fonseka, although she did notsee the transaction. A close analysis of the evidence of the Petitioner,reveals her incapacity to identify si, her lack of knowledge of the relevantcircumstances, and the fact that the Learned District Judge has not
CA
Jeewananda and Another vs. Land Reform Commission
and Others
397
violated sections 151,154 and 155 of the Civil Procedure Code is alsotaken into consideration.
We are of the view that the Learned District Judge of Panadura hascorrectly evaluated the evidence of the Petitioner, and has rightlyrefused to permit the document sought to be marked as ©1 as it hasnot been properly identified by the Petitioner.
For the aforesaid reasons we dismiss this appeal of the Petitionerwithout costs and confirm the order of the Learned District Judge ofPanadura dated 30.10.2003 (P5).
SRISKANDARAJAH, J. – / agree.
Appeal dismissed.