JAYASINGHE
V
LEELAWATHIE AND OTHERS
 
 

COURT OF APPEAL
WIMALACHANDRA.J
CALA 183/2005(LG)
D.C. KEGALLE 3817/L
MARCH 31,2006

Civil Procedure Code, Sections 121 (2), Sections 154 (3), Sections 175 (2) - Listing of documents - Cross examination - Documents tendered - Photocopy -Applicability of proviso to Section 175 (2) - Legally admissible ? - Genuine? -Authentic ?

When a witness for the defendant was under cross examination, the plaintiff sought to mark a certain document through the witness; before marking the document it was shown to the witness who admitted that, the document has his signature. The document was a certified copy of a letter, ratified as a true copy. The plaintiff objected to the production on the basis that it is a photo copy.

The Court upheld the objection and further observed that the said document is not listed in terms of Section 121 (2).

Held;

 

(1) The trial Judge has totally ignored the 2nd proviso to Section 175 (2) - the document was produced when the witness was under cross examination, the document could have been produced in cross examination though not listed, provided the document is authentic, genuine and reliable.

(2) (a) When a witness identifies the document by admitting his signature, authenticity is established.

(b) It was a photocopy of the original document certified by the Attorney - at - Law .

(c) Admission by one party constitutes primary evidence against him without the production of the original.

APPLICATION for leave to appeal from an order of the Additional District Judge, Kegalle.
 

M. S. A. Saheed for the plaintiff - petitioner
D. Jayasinghe for the defendant - respondents.
 

Cur. adv. vult.

October 12, 2006
WIMALACHANDRA, J.

This is an application for leave to appeal from the order of the learned Additional District Judge of Kegalle dated 03.05.2005. Briefly the facts relevant to this application are as follows :

The plaintiff closed his case leading in evidence the documents marked P1 to P9. Thereafter the 1st defendant gave evidence and also called two witnesses Podinona and Jayasena, who is the brother of the plaintiff and the 1st defendant. When Jayasena was under cross - examination, the counsel for the plaintiff sought to mark the document "P10" through the witness. Before marking the document it was shown to the witness, who admitted that the document has his signature. This document is a certified photocopy of a letter sent to the National Housing Development Authority, Kegalle, and the document is certified as a true photocopy by the plaintiffs Attorney - at - law. The 1st defendant objected to the production of the document "P10" on the basis that it is a photocopy. On this objection raised by the 1st defendant's Attorney- at - Law, the learned judge directed the parties to tender written submissions on this objection. Thereafter the learned Additional District Judge delivered the order on 03.05.2005 refusing to allow the plaintiff to produce the said document through this witness. It is against this order the plaintiff has filed this application for leave to appeal.

In the instant case, when the document "P10" was shown to the witness he admitted his signature and said he had signed the document. At this stage the counsel for the 1st defendant objected to this document being admitted on the sole ground that it is a photocopy. The learned Judge in his order held that since the original document was with the National Housing Development Authority, the plaintiff can call the National Housing Development Authority to produce the original. He also held that the said document is not listed in terms of section 121 (2) of the Civil Procedure Code.

In terms of the explanation to section 154 (3) of the Civil Procedure Code, when a document is tendered to a witness" if the opposing party objects to its being admitted in evidence, then two questions arise for the Court.
 

First