Sri Lenka Law Reports
(1985] 2 Sri L.R.
SHARVANANDA, C. J. RANASINGHE. J. AND L H OE ALWIS. J.
S. C. APPEAL No. 16/84 – S. C. SPL LA. 78/83. – CA No. 238/78(F).
C. COLOMBO No.O/1948/RE.
Landlord and tenant – Arrears of rent for over three months – Initial burden ofpropf – Best evidence rule.
In a suit for rent and ejectment on the ground of arrears there was conflicting testimonyon the question whether the defendant (tenant) was in arrears of rent. The defendant'sposition was that she paid rent regularly but the plaintiff though she issued receipts forthe payments of rent for the first three months of the tenancy (up to May 1972), did notissue receipts for the payments of rent thereafter which she had made through hersons. Hence, rents from November 1975 were paid by Money Order and from February1976 by deposit with the Town Council. Dalugama. The District Judge held that thedefendant was not in arrears and dismissed the suit. The Court of Appeal reversed this
SCVanderbona v. Persia;63
decision holding that the burden’of proof of payment was on the defendant and she hadfailed to call her sons as witnesses and so produce the best evidence available on thequestion of payment.
The initial burden of proof of arrears of rent is on the landlord as the allegation ofarrears though a negative allegation forms an essential part of the landlord's case. Onceboth parties have adduced their evidence the question of onus becomes immaterial.Onus will then become a determining fact if the evidence pro and con is so evenlybalanced that the tribunal can come to no conclusion.
The best evidence rule is now whittled doyyn and though the non-productjon of thebest evidence may be a matter for'comment'or may affect the weight of the evidencethat has been produced, it-is not true that the best evidence must be given to prove afact. The appellants evidence of payment'of rent through her sons is admissible bui.theweight to be attached to such evidence in view of her failure to call her sons will be amatter for the court to decide on a consideration of the entirety of the evidence in thecase.
The District Judge's findings are supported by the evidence.
Cases referred to :
Saunadhigal v. Veeramma Reddi AIR 1922 Madras 292 (P. C ).
King v. Peter Nonis (1947) 49 NLR 16,-17.
APPEAL from the Court of Appeal.
H, L. de Silva, P. C, with K C. TiHekeratne for defendant-respondent-appellant.
H. W. Jayawardene. Q. C.. with L. C. Seneviratne. P. C. Lakshman Perera and Miss T.Keenavinna for plaintiff-appellant-respondent.
Cur. adv. vult.
June 24. 1985.
L. H. DE ALWIS, J.
The plaintiff-apellant-respondent (referred to.hereinafter as therespondent) instituted an action in the District Court of Colombo forthe ejectment of his tenant, the defendant-respondeht-appellantrespondent) instituted an action in the District Court of Colombo forthe ejectment of his tenant, the defendant – respondent – appellant(referred to hereinafter as the appellant) from the premises in suit andproceeded to trial solely on the ground that the appellant was inarrears of rent for over three months. The learned District Judge heldthat the appellant was not in arrears of . rent and dismissed therespondent's action with costs.The respondent appealed to the Courtof Appeal against the judgment and the Court of Appeal reversed thefinding of the District Judge and entered judgment in favour of therespondent for the ejectment of the appellant, arrears of rent,damages and costs. The appellant now appeals to this court, after firstobtaining special leave, against the judgment of the Court .of Appeal. •
64Sri Lanka Law Reports[t985] 2SriL.R.
Learned Counsel for the appellant contended that the Court ofAppeal erred'in law in placing the burden on the appellant to provethat she paid the rent regularly and was not in arrears on the footingthat the respondent does not have to prove a negative, namely, thathe did not receive the monthly rent.
Plaint was filed by the respondent on 12.08.1976 under the-Administration of Justice Law No. 25 of 1975, which was then inoperation. The respondent purchased the premises in 1971 from oneDias who had let them to the appellant. The appellant attorned to therespondent-and paid him the rent.The respondent's.case,. accordingto his plaint, is that the appellant paid him rent only up to the end ofMay 1972 and fell into arrears for about 3 1/2 years. On the 16th ofFebruary 1976, he gave the appellant notice to quit the premises onor before 31.05.1976 through his Attorney-at-Law, but the appellantfailed to vacate the premises! and he filed this action.
The appellant's position is that she paid the monthly rent regularlyup to date and is not in arrears. The respondent issued her receipts,D1 to D3. for only the first three months commencing December1971 and thereafter stopped doing so. The respondent's son marriedin October 1975 and when the appellant learnt that the respondentwas seeking tO evict her from the house in order to give it to his son,she sent .the.rent by Money Orders'accompanied by letters D7 andD6, for the months of November and December 1975 and January1976 respectively. Thereafter one Leena Dias claimed ownership ofthe house, and the appellant deposited the rent with the TownCouncil, Dalugama and obtained receipts D7 to D25.
In this state of tine, pleadings, it becomes necessary to determine onwhom the burden lies to prove that the rent was in arrears.
Section 22 of the Rent Act No. 7 of 1972 prohibits ah action orproceedings for ejectment of the. tenant of any premises beinginstituted in or entertained by any Court, unless "where, inter alia, therent of such premises has been in arrears. The burden therefore layclearly on the plaintiff in this action to prove that the tenant was inarrears of rent. The respondent, accordingly framed his first issue (astranslated) in the following manner:
'Has the defendant been in arrears of rent for" three months or
more between 01.06.72 and 31.05.76
SC. Vanderbona v. Parera (L. H. DeAlwis, J.)65
The rule regulating the burden of proof is contained in sections 101to 103 of the Evidence Ordinance. 'The true-meaning .of the rule,”states Monir in the Law of Evidence, 5th Ed. page'400, in regard tothose sections of the Indian Evidence Act, (which correspond Withours) is –
'that he who asks the court to believe in the existence of a certainfact or set of facts, must prove that fact or set of facts exist.Non-existence of a fact is as much a fact as the existence of a fact"and, therefore, the non-existence of a fact is as much within themeaning of sections 103 and 101 as the existence.of a fact. Thusinterpreted, these two sections of the Evidence Act may be taken tolay down the general rule that where a given allegation, whetheraffirmative or negative, forms an essential part of a party's case.theproof of such allegation rests on such party, and that is how the rule
is stated in the-English'cases'Monir then elaborates it as
follows : ‘the rule applicable to all'such cases is that where a claimor defence rests upon a negative allegation, the one asserting suchclaim or defence is not relieved of the onus probandi by, reason ofthe form of the allegation, or the inconvenience of proving: anegative. Where in order to show a right to relief, it becomesnecessary for a party, under.the substantive law, to prove thenon-existence of a fact, the burden of proving such ‘negativeallegation' will be on him …… and indeed, in every case in
which the plaintiff grounds his right of action upon a negativeallegation and the establishment of this negative is consequently anessential element in support of his claim.
The Court of Appeal was therefore dearly in error when it took theview that the plaintiff-respondent does not have to prove a negativeand placed the burden of proving the payment of rent on thedefendant-appellant.
Of course, as learned Counsel for the respondent contended, oncethe initial burden of proof on 'the plaintiff is discharged and theevidence of the two parties is led, the question is not looked at fromthe point of view of onus. Learned Counsel cited the Indian case ofSaunadhigai v. Veeramma Reddi (1) where it was held by the Boardthat when the entire evidence on both sides is before the court,the debate as to the onus is purely academic. Where the relevant factsare before the court, all that remains for decision is what inferenceshould be drawn from them. Monir in the Law of Evidence, 5th Ed. atpage 603, referring to this case states –
Sri Lanka Law Reports
(1985] 2 Sri LR.
‘But where both parties have adduced evidence on the issue insupport of their respective allegations, the question of onusbecomes immaterial, as the conclusion reached does not dependon the question of onus, but depends on the evidence produced bythe parties. The strict meaning of the term onus probandi is this,that if no evidence is given by the party on whom the burden is cast,the issue must be found against him. Onus as a determining factorof the whole case can only arise if the tribunal finds the evidence proand con so evenly balanced that it can come to no conclusion.Then the onus will determine the matter. But if the tribunal, afterweighing the evidence, comes to a determinate conclusion, theonus has nothing to do with it, and need not be furtherconsidered. ….. where each side has adduced its evidence, thequestion of onus of .proof loses the importance which at one stage ithad, and would only resume its importance if on. considering theevidence as a whole, irrespective of which side adduced it. the courtis left with reasonable doubt on any material question."
I am of opinion that this is the correct approach to the considerationof the evidence in this case.
In the present case, we have, on the one hand, the evidence of therespondent that the appellant ceased to pay rent after May 1972, andin December 1975, sent a Money Order for Rs. 350 as rent forNovember and December 1975 and another Money Order for Rs.175 as rent for January, 1976. Thereafter she deposited the rent withthe Town Council, Dalugama.
The appellant, on the other hand, stated that she paid rent for thepremises regularly from December 1971 and produced three receiptsD1 to D3 in acknowledgment of the payment of the rent for the firstthree months. Thereafter the respondent ceased to issue her anyreceipt and she made no request for them because of the trust shehad in him. She said she used to send the rent through her two sons.But her sons were not called to give evidence to support her. TheCourt of Appeal took the view that consequently her evidence washearsay and observed that the trial Judge had not given his mind tothat aspect of the matter. Having taken the view that the burden ofproving the payment of rent was on the tenant, the Court of Appealcame to the conclusion that that burden had not been discharged. I failto see how the appellant's evidence can be dubbed hearsay. The
Vanderbona v. Parera (L. H. Da AMs. J.)
appellant was not cross-examined'on this point and no evidence waselicited from her that her sons h'ad informed her that they handed therent to the plaintiff. It may well have been that the appellant took it forgranted that the rent had reached the hands of the respondentbecause no demand was made for it therafter, that is, according toher case that she continued paying rent.
Learned Counsel for the respondent argued that in view of .therespondent's denial of the payment of rent by the appellant after May1972, the latter should have placed the best evidence possible of itspayment by calling her sons as witnesses. It was contended that thefailure to lead the best evidence available should result in the exclusionof the inferior evidence that has been placed before court. But Dr. G.L. Peiris on The Law of Evidence in Sri Lanka, at page 290 says –
"The best evidence rule which was considered sacrosanct by theEnglish courts during the last century, has now been whittled downin scope to such an extent that English writers have been promptedto speak of 'the remains of the rule'. One authority on the law ofevidence has justifiably concluded that 'Perhaps the mostconspicuous feature of the modern law is its persistent recessionfrom this once famous principle.' The numerous departuressanctioned by the Evidence Ordinance of Ceylon from the bestevidence rule, viewed both as an inclusionary and as an exclusionarydoctrine, render this conclusion applicable to the law of Ceylon aswell'
In the King v. Peter.Nonis, (2) Windham, J., with whom Howard, C. J.,agreed said :
'In any case, what is the meaning of 'best evidence', in theEnglish Law sense ? It certainly does not and never did mean that noother direct evidence of the fact in dispute could be tendered. Itsmeaning is rather that the best evidence must be given of which the
nature of the case permits The 'best evidence' rule in
England has been subjected to a whittling down process for over acentury, and today it is not true that the best evidence must begiven, though its non-production where available may be a mattetfor comment and may affect the weight to be attached to theevidence which is produced in its stead."
Sri Lanka Law Reports
 2 SriLR.
'In the present day, then, it is not true that the best evidencemust, or even may. always be given, though its non-production maybe matter for comment or affect the weight of that which isproduced. Ail admissible evidence is in general equally accepted.'PNpson on Evidence, 13th Ed. (1952) pg. 70.'
The appellant's evidence of the payment of rent through her sons istherefore admissible although the weight to be attached to it. in viewof her failure to call her sons in support, is a matter for the court todecide, on a consideration of the entirety of the evidence in the case.
The appellant s evidence is that she sent the rent regularly throughher sons from December 1971 and that the respondent issued herreceipts for only the first three months. Thereafter she paid the rentfrom November 1975 by Money Order when she learnt that therespondent was attempting to eject her from the house in order togive it to his son who had just got married, and then deposited thr rentwith the Town Council, Dalugama, when a dispute arose over theownership of the house. It is significant that the respondent's sonadmittedly married in October 1975 and it was then only that theappellant paid the rent by Money Order evidently to have proof of thepayment since, according to her. the respondent was not in the habitof issuing her receipts for the rents. The respondent on the other handstates that he issued the appellant receipts for rent up to May 1972and thereafter had no occasion to issue any receipts because theappellant ceased to pay rent. His version is that he told the appellantthat he had purchased the house for his son and asked the appellant toquit and hand over the house when his son got married. The appellantreplied that she could not pay rent until she found another house, andthat was the reason the respondent gave for not taking any action torecover the arrears of rent.
The appellant admittedly had the financial capacity to pay the rent.One would have thought that the appellant's failure to pay rent fromMay 1972 would have afforded the respondent a splendidopportunity of instituting an action to eject her on the ground ofarrears of rent. But he waited for over three and a half years to do so.It is inconceivable that the respondent would have let the rent fall intoarrears for such a long period without taking any action to recover itand to eject the appellant by filing action promptly, especially as hedesperately needed the house for his son who was about to get
SCVandetbona y. Perera (L. H. De Aiwis, J.)
married. The learned trial Judge has refused to accept therespondents evidence on this point and I see no reason to disagreewith him.
Learned Counsel for the respondent contended that the respondentmay have deliberately allowed the rent to accumulate beyond themeans of the appellant to tender it on or before the date fixed in thesummons under section 22 (3) (c) of the Rent'Act when action wasfiled. This was not the reason given by the respondent at the trial forletting the rent fall into arrears, and cannot be accepted.
The appellant's case all along was that receipts were issued to heronly for the first three months ending February 1972, and.she hasproduced them marked D1 to D3. The respondent admitted theiissueof these rent receipts but went on to say further that he issuedreceipts up to May 1972. and stopped when the appellant ceasedpaying rent. The rent receipts up to May, according to the respondent,were issued from the same receipt book as D1 to D3. The respondentcould easily have produced the counterfoils of these receipts from thatbook and shown up the falsity of the appellant's evidence that receiptswere issued for only the first three months of payment, but did not doso.
Another circumstance that bears out the appellant's version is thatin the fetter D7 dated 31.12.75 accompanying the first Money Orderfor Rs. 350 the appellant specifically states that the amount is sent asrent for the months of November and December 1975, that is, on thebasis that rent up to October 1975 had been paid regularly by her. .Therespondent admitted receipt of the Money Order and letter, but failedto deny promptly that assertion and to state that the money would beset off as damages for June and July 1972, if, as was his case, theappellant was in arrears of rent from 1.6.72.
It is noteworthy that no receipt was issued even for this payment.Indeed no reference is made at all to this payment in the notice to quitdated 15.2.76 (04) sent by the respondent's lawyer to the appellant.
Again on 6.2.76 the appellant sent another letter D6 with a MoneyOrder for Rs. 175 as rent for January 1976, on the basis that all the. earlier rents had been paid..The respondent however has not repliedimmediately challenging this position. In the notice to quit D4,however, sent later, on 15.2.76 by his lawyer, he sought for the firsttime, to set this payment off, as damages for the month of May 1972,
Sri Lanka Law Reports*
. (1985) 2 Sri LR.
on the ground that the appellant was in arrears from that month. But inhis plaint and evidence he has admitted the payment of rent for thatmonth.
Having regard to all these circumstances the Court of Appeal in myview, was not justified in interfering with the finding of the DistrictJudge that rent had been regularly paid by the appellant.
I am of opinion that the judgment of the District Judge, is correct andmust be affirmed. I set aside the judgment of the Court of Appeal andallow the appeal with costs in the Court of Appeal and in this Courtand affirm the judgment of the District Judge dismissing plaintiff'saction with costs.
SHARVANANDA, C. J. -1 agree.
RANASINGHE, J. -1 agree'
-VANDERBONA v. JUSTIN PERERA