Sivapatham v. Balasmgham and Others
BALASINGHAM AND OTHERS
VICTOR PERERA. J. COLIN THOME. J.. AND SOZA. J.
S.C. APPEAL NO. 30/82: C.A. APPLICATION NO. 124/79:
C. R. COLOMBO 1552/L.
JUNE 29 AND 30. 1983.
Landlord and tenant — Monthly tenancy — Licencee — Action for a declarationfor exclusive use and enjoyment and permanent injunction restraininginterference with possession — Civil Procedure Code. Sections 121. 134 and175.
The Plaintiff-Appellant claiming to be a monthly tenant of the rear portion ofpremises No. 7, 57th Lane, Wellawatte under the 5th defendant-respondent,filed action against the Defendants-Respondents for a declaration for theexclusive use and enjoyment of the said portion and for a permanent injunctionrestraining from interfering with his possession.
The Plaintiff-Appellant has not established a right of tenancy of the premises. Atmost he was a licensee.
Section 134 of the Civil Procedure Code contemplates a case of a person whosevalue as a witness was unknown to the parties to the action but becameapparent during the course of the trial and it is for that reason the words "notnamed as a witness by a party to the action" have been used.
Cases referred to:
Rewata Thero v. Horatala 14 C.L.W. 155
Hendrik Kure v. Saibu Marikar (1901) 4 N.L.R. 148.
Tikiri Banda v. Loku Menika (1965) N.L.R. 342.
APPEAL from an Order of the Court of Appeal.
H. L. de Silva with S. A Parathalingam for the Appellant.
S. Nadesan. Q.C. with K. Kanag Iswaran and S. H. M. Reeza for the Respondents.
Cur. adv. vult
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July 18. 1983VICTOR PERERA, J.
The Plaintiff-Appellant claiming to be a monthly tenant of therear portion of premises No. 7. 57th Lane. Wellawatte, under the5th Defendant-Respondent filed this action against theDefendants-Respondents for a declaration that he was entitled tothe exclusive use and enjoyment of the said portion and for apermanent injunction restraining them from interfering with hispossession.
The 5th Defendant-Respondent fs admittedly a 'Sangam' orCultural Society duly incorporated and had purchased the saidland and building in extent about 42 perches for the purpose ofthe activities of the Society. The premises No. 7 in 57th Lanewere, as averred in paragraph 2 of the plaint, is the registeredoffice of the said Society. The front portion consists of an officeroom in which 4th respondent, the Secretary resides, anotherroom which is used as a library occupied by the Librarian andtwo other rooms used as tuition classes for students. The rearportion consists of 4 rooms. There is no evidence that the rearportion was ever rented out to any person. There was someevidence that some young people who had been allowed tooccupy the same, had created trouble and had been got rid of.There is no evidence whatsoever that the 5th Defendant-Respondent wanted to rent out the said portion to anybody orthat he was on the look-out for a tenant.
Mr. V. Arulambalam, a senior Lawyer was the Vice President ofthe Society from 1949 to December 1966 and the Presidentfrom December 1 966 to December 1 969. In 1970Mr. Arulambalam had left the Society. Apart from the GeneralCommittee, there was an Establishment Committee, and he wasthe Chairman of this Committee from 1964 to 1966. InDecember 1969. the 1 st Defendant-Respondent was electedPresident and thereafter Mr. Arulambalam abandoned theSociety.
It was in 1964 while Mr. Arulambalam was the Chairman ofthe Establishment Committee that the Plaintiff-Appellant and his
Sivapatham v. Balasingham and Others (Victor Perera, J.)
family came into occupation of the rear portion of the saidpremises. While the Defendants-Respondents allege that thePlaintiff-Appellant came into occupation on the 1st of August1964 the Plaintiff-Appellant claims to have come into occupationin June 1964. Mr. Arulambalam was the first witness called forthe Plaintiff-Appellant. When he gave evidence in June 1971 hewas not a member of the Society. He testified that the Plaintiff-Appellant came into occupation in June 1 964. He said he knewpersonally the terms on which the Plaintiff-Appellant came intooccupation of the said premises. When asked what the termswere, he stated, "the terms were that the plaintiff should payRs.160/- per month. He paid two months advance. ThatRs. 160/- was paid for the use and occupation of that part of thepremises". He further stated "he did not know how the plaintiffregarded this payment of Rs. 160/- but as far as the Society wasconcerned Rs. 1 60/- was accounted as a donation." On anexamination of the evidence of this witness it is quite clear thathe was trying to assist the plaintiff-appellant as he himself hadleft the Society in 1970. and he displayed some measure ofhostility to the Society and to its office-bearers particularly theSecretary, the 4th defendant-respondent. When he was shown aletter dated 4.7.64 (D9) sent by the Plaintiff-Appellant and hiswife to the Society from 40/2. Hampden Lane. Wellawatte.requesting help in regard to securing a dwelling place for a shorttime for themselves as their landlord had given them onemonth's notice to quit, he categorically stated "the plaintiff hadnot come into occupation of the premises prior to the date ofthis letter. He came into occupation after that letter". This letterbore his endorsement 'recommended' dated 7th July 1964.Shortly after that he contradicted himself by stating that thePlaintiff-Appellant came into occupation before this letter D9.
This evidence of this witness had to be tested by his ownconduct evidenced by this letter. There was a meeting of theEstablishment Committee on 7.7.64 under his Chairmanship.The minutes of that meeting were produced (D10) and the samewas signed by this witness. It had been recorded that at therequest of the Principal Saiva Mangaiyar Vidyalayam and others,it was decided to help Mrs.Sivapatham (Plaintiff-Appellant's wife)by giving her temporary accommodation to live with her family.
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Further the Committee had decided to accept Rs. 160/- whichwas offered as a donation to the Society and to give themaccommodation from 1.8.64. By letter dated 1.7.64 (D1 2) MissKasipillai, the Principal, requested the Society to give thePlaintiff-Appellant and his family temporary accommodation, ontheir promise to vacate the premises at any time the Sangamrequested them to do so. This position was further confirmed bya subsequent meeting of the Establishment Committee at itsmeeting dated 19.7.64 (D11) again under the Chairmanship ofthis witness.
These three documents which were admitted by this witnesscontradicted his oral evidence when he purports to state that thePlaintiff-Appellant came into occupation in June 1 964. The oralevidence has to be further tested by reference to the record ofthe minutes of the Executive Committee of the Society on31.7.64 (D1 a.). At that meeting the plan for the construction ofthe new building had been submitted, and steps were to be takento construct the building and the Plaintiff-Appellant and hisfamily were to be given 3 months notice to vacate the premises.The minutes of the meeting of the Establishment Committeedated 2.2.69 (D34) show that verbal notice had been given, thatthe Plaintiff-Appellant continued to occupy the premises and thiswitness was requested to get Miss Kasipillai, the Principal, topersuade the family to vacate the premises. The documents D4dated 13.2.69, D3 dated 21.7.67. D5 dated 29.6.69. D6 dated31.9.69 and D7 dated 29.11.69, all support the version given bythe defendants-respondents and contradict this witnessconvincingly.
The Commissioner of Requests had failed to examine andevaluate the oral evidence of this witness sufficiently. If he haddone this he would have realised that this witness not onlycontradicted himself on material facts but was proved to have in1971 altered the position he himself had agreed to and ratifiedwith due responsibility when he was the Chairman of theEstablishment Committee from 1964 to 1969 and also thePresident of the Society.
Sivapatham v. Balasingham and Others (Victor Perera. J.j
The next witness called was the Plaintiff-Appellant himself. Hetoo stated that he came into occupation of the premises in June1964. In his plaint he had pleaded that he paid Rs. 160/- permonth as rent. But in his evidence he stated that he paidRs. 150/- monthly as rent and Rs. 10/- per month for the use ofelectricity. He denied that Miss Kasipillai was approached by hiswife or him to secure this accommodation when he was shownhis own letter dated 4.7.79 (D9). He admitted his signature butdenied his wife's signature. He contradicted himself in regard tothe exact date of the termination of his tenancy at HampdenLane. However, he admitted that as the previous tenancy was inexistence till July, the Society agreed to take rent from 1stAugust and took a further 2 months' advance. This evidencecontradicted his earlier position that he came into occupation inJune 1 964 and that he paid three months rent for June, July andAugust 1 964. This witness' evidence is teeming with falsehoodsand the Commissioner of Requests in this instance too had failedto examine and evaluate his evidence by referring to thedocuments signed by this witness and his wife.
The Plaintiff had in June 1970 listed as his witness amongothers one E.P. Chelliah. Mr. Arunambalam was called as the 1 stwitness and thereafter the Plaintiff-Appellant. While the Plaintiff-Appellant was giving his evidence it would appear from theproceedings that the Plaintiff-Appellant's Counsel who hadoriginally given an undertaking to call E.P. Chelliah as his witnesswas not going to be called as a witness although up to thenseveral statements alleged to have been made by E.P. Chelliah tothe other witnesses and to the Plaintiff-Appellant had beenrecorded as evidence. After submissions made by Counsel forthe Plaintiff and Defendants, the Court made the followingOrder
"I find that quite an amount of evidence has been led thatE. P. Chelliah said this and that. If Chelliah is not to becalled as a witness the record will be teeming with hearsayevidence. Besides, it seems to me, in the interests ofascertaining the truth, Chelliah is a necessary party. Actingunder section 134 of the Civil Procedure Code, I decide tocall E. P. Chelliah as a witness to be examined."
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Thereafter the Plaintiff-Appellant continued his evidence and atthe end of his evidence the Plaintiff-Appellant closed his casewithout calling E. P. Chelliah as a witness.
At this stage the Court decided to examine Chelliah. Counselfor the Plaintiff-Appellant objected as it was unusual to call awitness before both parties had closed their case. The Judgemade the following order
"In this case, I decided to act under Section 134 of theCivil Procedure Code. It is difficult to understand whatMr. Fernando says. Usually this type of decision is madeby Courts. What Chelliah stated has been repeatedly saidby the plaintiff in answer to a number of questions put byCounsel, I am satisfied, at this stage, that the plaintiff hasfinished his evidence in relation to what Chelliah hasstated. It would be appropriate, therefore, to call Chelliahat this stage".
Thereafter the Court called E. P. Chelliah as a witness. TheCourt elicited a great deal of evidence from this witness andthereafter the witness was examined by Counsel for the Plaintiff-Appellant and by Counsel for the Defendants-Respondents. Thefinding of the trial judge in this case was greatly influenced by theevidence of this witness Chelliah and what he is alleged to havetold the Plaintiff-Appellant. In his judgment he states, "If there isone person who knows anything about the nature of thetransactions relating to the plaintiff's occupation of thesepremises, it is Chelliah. Therefore I have carefully considered hisevidence keeping in mind his answers against the Society or atleast the Committee".
Mr. S. Nadesan, Q.C. for the Defendants-Respondentssubmitted that the evidence of this witness had been improperlyrecorded and that this evidence should not be taken intoconsideration at all. He referred us to Section 134 of the CivilProcedure Code, which reads as follows:—
"1 34. Subject to the rules of this Ordinance as to attendanceand appearance, if the Court at any time thinks it necessary
Sivapatham v. Balasingham and Others (Victor Perera. J.)
to examine any person other than a party to the action, andnot named as a witness by a party to the action, the Courtmay. of its own motion, cause such person to be summonedas a witness to give evidence, or to produce any documentin his possession, on a day to be appointed; and mayexamine him as a witness or require him to produce suchdocument".
This Section clearly gives the Court power to examine anyperson other than a party to the action and not named as awitness by a party to the action. In this case E. P. Chelliah is the3rd witness named in the Plaintiff-Appellant's list of witnesses.The Plaintiff-Appellant did not choose to call him as a witnessand closed his case. It was therefore the duty of the Court tostrike out the hearsay evidence and examine the evidence placedbefore it by the Plaintiff-Appellant. The other objectionablefeature of this episode is that this evidence was recorded notafter the close of the case by both parties but before theDefendants could call their evidence, a course of action whichwas greatly prejudicial to the Defendants-Respondents case asthe Defendants-Respondents' witness was confronted with thisinadmissible evidence under cross-examination. In any eventthere were no special circumstances even to justify this witnessbeing called at the close of the case by Court.
It is unfortunate that the trial judge entered the arena, as itwere, and decided to record the evidence of this witness whowas abandoned by the party who had named him as a witness.As Nihill J. stated in the case of Rewata Thero v. Horatala (1):
"It is no part of a judge's duty in a civil action to fill in thedeficiencies in the case of one of the disputants by callingevidence on his own".
Section 121 of the Code provides for the filing of a list of thewitnesses parties intend calling and Section 175 of the Code hasclearly provided that no witness shall be called on behalf of aparty unless such witness shall have been included in the list ofwitnesses previously filed. The Court, however, has been given adiscretion under special circumstances in the interest of justice
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to allow a party to call such a person as a witness. But where awitness's name appears on a list and is not called by the partywho listed his name, the Court has no power to call that witnessto give evidence.
Mr. H. L. de Silva, Senior Counsel for the Plaintiff-Appellantcited the case of Hendrik Kure v. Saibu Marikar (2) in support ofthe course adopted by the trial judge. But that case has noapplication. The Supreme Court decided in that case that it wascompetent to a District Court after both parties had closed theircase to call on its own motion a witness not cited by the partiesand inform itself of any relevant point that required elucidation.He also relied on the case of Rewata Them v. Horatala (supra). Inthat case the Supreme Court approved the course of actionadopted by the trial judge to call expert evidence in regard to athumb impression which was discovered on a document duringthe trial. The Defendant himself denied that it was his thumbimpression and invited the Court to act in that manner. In boththese cases the witnesses called were not named in the list ofwitnesses.
I take the view that Section 134 contemplates a case of aperson whose value as a witness was unknown to the parties tothe action but became apparent during the course of the trialand it is for that reason the words "not named as a witness by aparty to the action” have been used. The evidence of E. P.Chelliah has in the circumstances been illegally recorded by thejudge and the whole of his evidence has been illegally admittedand his evidence therefore cannot form the basis of thejudgment in this case. The Supreme Court took a similar viewwhere the evidence of a witness whose name was not included inthe list of witnesses filed in accordance with Section 121 of CivilProcedure Code was called by a party giving the Court theimpression that he had been listed as a witness — vide TikiriBanda v. Loku Menika (3).
Thus the only oral evidence the Plaintiff-Appellant could relyon is that of Mr. V. Arulampalam and that of the Plaintiff-Appellant himself excluding therefrom any hearsay evidence inregard to what E. P. Chelliah said. The documents produced
SCStvapaiham v. Balasingham and Others (Victor Perera, J.)41
clearly demonstrate that the oral evidence cannot be relied on.On the basis of the documents it has been clearly establishedthat the Plaintiff-Appellant at his request and on the request ofMiss Kasipillai had been allowed temporary accommodation inthe rear portion of the building. The Plaintiff-Appellant hadoffered to help the Society in some way or another inconsideration of this accommodation. -The Plaintiff-Appellanthad. however, offered to make a monthly donation which wasaccepted by the 5th Defendant-Respondent. There is no doubtthat a senior lawyer like Mr. Arulambalam would have advisedthis course of action in the best interest of the Society. The 5threspondent, when it became necessary to put up the newbuilding which had been in contemplation for several years, gavethe Plaintiff-Appellant verbal notice of three months to quit thepremises. The Plaintiff-Appellant asked for and received severalextensions of time to vacate but thereafter with the backing ofMr. Arulambalam he had decided to set up a claim of tenancyand has successfully stalled any proceedings for ejectment for-well over 9 years. On a consideration of the entirety of theevidence both oral and documentary, I hold that the Plaintiff-Appellant had not established a right of tenancy of the saidpremises. At most he was a licensee.
The order of the Court of Appeal therefore is affirmed subjectto what is stated above and the Plaintiff-Appellant's action isdismissed with costs in the original Court, the Court of Appealand in this Court.
COUN THOME, J. – I agree.
SOZA, J. — I agree
SIVAPATHAM V. BALASINGHAM AND OTHERS