W EERASOORi Y A, J.:—Ramasamy v. Ferns elect
Present: Weerasooriya, J.
S. RAMASAMY, Appellant, and D. L>. FONSEELA, RespondentS. C. 11—C. R. Colombo, 66165 (R. E.)
In an application to lead certain fresh evidence in the form of two documentswhich were stated to have been discovered subsequent to the tried in the presentcase—
Held, that fresh evidence would not be permitted to be adduced unless itis of a decisive nature ; it must be such that, on a new trial being ordered,it would almost certainly prove that an erroneous decision had been given.
Appeal from a judgment of the Court of Requests, Colombo.
H. W. J ay e-war dene,, Q.C., with Vernon Wijetunge, for defendant-appellant.
J.A. L. Cooray, for plaintiff-respondent.
September 23, 1958. Weebasooeiya, J.—
The preliminary matter argued before me was the application of thedefendant-appellant to be permitted to lead certain fresh evidence inthe form of two documents which are stated to have been discoveredsubsequent to the trial in this case. These documents consist of—
A certificate of registration issued under the Business Names
Ordinance (Cap. 120) and containing particulars relating tothe firm of Thomas Rodrigo and Sons which commenced businesson the 1st October, 1956 ; and
An extract from the register of motor vehicles maintained under
the Motor Traffic Act, No. 14 of 1951, showing that on the 5th• of March, 1958, the motor vehicle to which the extract referswas transferred by the then owner to one Mr. Michael Fernandoof 21, Negombo Road, Kochchikade.
In this case the plaintiff-respondent sued for the ejeotment of thedefendant-appellant from premises No. 29, Lauries Place, Colombo,on the ground that the premises were required for occupation by theplaintiff’s daughter, Mrs. Agnes Fernando. The plaintiff is also ownerof the adjoining premises No. 33, Lauries Place, and the evidence is thatthose premises were in the occupation of Mrs. Lena Fernando, anotherdaughter of the plaintiff, and the wife of Michael Joseph Fernando.The Commissioner of Requests after trial gave judgment for the plaintiffholding that premises No. 29 were reasonably required for occupationby his daughter, Mrs. Agnes Fernando. In considering whether therewere any alternative premises belonging to' the plaintiff which Mrs. AgnesFernando could have occupied in place of the premises which were the
WJjiEBASQOBJYA, J.-r—Ramasamy v. JPtmseka
subject matter of the suit, the Commissioner held that the adjoiningpremises, No. 33, Lauries Place, were not available as they were in theoccupation of the plaintiff’s other daughter, Mrs. Lena Fernando. The-defendant submits that the two new documents which he seeks to putin evidence would show that at the time when the trial took placepremises No. 33, Lauries Place, were really vacant, though ostensiblyin the occupation of Mrs. Lena Fernando, and that she was in point offact living with her husband, Michael Joseph Fernando, at “ BeatriceVilla ”, Katuneriya, Negombo.
The first of the documents is, however, nothing more than a copy•of the original statement furnished on the 24th October, 1956, relatingto the firm of Thomas Rodrigo and Sons which commenced businesson the 1st October, 1956. Certain of the particulars in that statementdescribe Michael Joseph Fernando as a partner of the firm and hisresidence as “ Beatrice Villa ”, Katuneriya. In the affidavit filed bythe defendant he says that this document shows that Mr. MichaelJoseph Fernando’s present address is “ Beatrice Villa ”, Katuneriya,but as Mr. Cooray who appears for the plain tiff-respondent pointed out,all that the document shows is the position as on the date On which thestatement was made, namely, the 24th October, 1956. It seems tome that if the defendant-appellant was relying on the fact that subse-quent to the filing of this statement and up to the date of the trial nochange in any of those particulars were notified under the BusinessNames Ordinance, a further certificate to that effect should have beenobtained from the Registrar. It is not possible, therefore, to say fromthe particulars given in this statement that it has been established thatthe address of Michael Joseph Fernando continued to be “ BeatriceVilla ”, Katuneriya, even at the date of the trial.
In regard to the second document the position is even more uncertain.It shows that the transferee of the motor car was one Mr. MichaelFernando whose address is given as 21, Negombo Road, Kochchikade.There is not only a difference in the name but there is also a differencein the address, and there is nothing except the bare averment of thedefendant in his affidavit to indicate that Mr. Michael Fernando is the.same person as Mr. Michael Joseph Fernando, the husband of Mrs. LenaFernando.
As pointed out by this Court in the case, a note of which appears atpage 74 of 1 Balasingham’s Notes of Cases, the fresh evidence which issought to be admitted must be of a decisive nature or, to put it in otherwords, must be such that on a new trial being ordered would almost-certainly prove that an erroneous decision had been given in the case.I do not think, therefore, that any useful purpose will be served insending this case back in order to enable the defendant-appellant toadduce evidence of these documents.
The application is dismissed with costs, and the appeal will nowbe listed for argument in due course.
Application to lead fresh evidence dismissed.
S. RAMASAMY, APPELLANT, AND D. D. FONSEKA, Respondent