FERNANDO v. FERNANDO.

FERNANDO v. FERNANDO.

D. C, Negombo, 4,143.

Evidence-Admission of documents tendered in evidence-Proper description of them in list annexed to the pleading-Civil Procedure Code, ss. 51, 54-Technical objections-Adjournment of case.

    Deeds identified, in the list of documents annexed to a plaint, by numbers and dates are receivable in evidence if duly proved and tendered.

    If the defendant is not prejudiced by their production at the trial, the Court should disregard purely technical objections and use the discretion given it by section 54 of the Civil Procedure Code.

    LAYARD, C.J.-In my opinion, if a plaintiff intends to rely on a document in support of his title to property, which he is not bound to set out in his plaint, he should give due notice of it to defendant by succinctly stating the names of the parties, the date and nature of the instruments so relied on, in the list attached to his plaint.

    Where a plaintiff endeavours to read and tender in evidence a document not properly described in such list, and objection is taken to its admission by the opposite party, and where the Judge considers that he is prevented from receiving material or available evidence by reason of the technical objection taken to its reception, it is his obvious duty to remove the technical objection out of the way by even, if necessary, granting an adjournment as a matter of course, without being asked for it, to enable the defendant to examine the document which the plaintiff desires to read in evidence.

THE first plaintiff as owner, and the second plaintiff as lessee, of a certain land brought this action in ejectment against the defendant, whom they alleged to be an over-holding tenant. The defendant denied the first plaintiff's title and set up title in himself by prescription.

    The District Judge rejected the first plaintiff's title deeds tendered in evidence, and held against him on the question of title. He ruled out the issue whether the defendant had taken a lease from plaintiff, and refused to admit seven deeds which the first plaintiff tendered in evidence in support of his title, because the defendant's counsel objected to their reception on the ground that they were not properly described in the list required by sectional of the Civil Procedure Code.

    The District Judge considered himself bound by the decision; reported in 2 0. L. R. 170. He said:-

    " Of these documents, A, B, C, E, F and G are mentioned in the list attached to the plaint. None of them were filed with the plaint, and none of them bear any description but number and date. Document D is not mentioned in the list, but is referred to in the list of witnesses and is equally badly described. In these circumstances I cannot accept these documents in evidence. "

    He dismissed the plaintiff's case.

    The plaintiff appealed.

    The case was argued on the 31st March, 1903, before Layard, C.J., Moncreiff, J., and Wendt, J.

    Sampayo, K. C., for appellants.

   H. Jayawardene, for respondent.

Cur. adv. vult.

    The Supreme Court set aside the judgment of the Court below and remitted the case for a new trial.

    Sampayo, K.C., for appellants.

    H. A. Jayawardene, for respondent.

    7th April, 1903. MONCREIFF, J. (in the course of his judgment dealt with the plea of res judicata, and made the following observations on the rejection of the plaintiff's documents).-I can see no justification for this order; the Judge should have admitted the documents in the exercise of his discretion. Documents A, B, C, E, F and G were not filed with the plaint; they were mentioned in the list attached to the plaint, and bore their numbers and dates. The Judge is mistaken in saying that they were not described in accordance with section 51 of the Civil Procedure-Code. I find no provision such as he suggests in the section.

Document D was not mentioned in the list attached

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