Ismail V. Muttiah Chettiar

1942 Present: Howard C ,J. and de Kretser J,

ISMAIL v. MUTTIAH CHETTIAR.

19-D. C. (Inty.) Puttalam,4,871.

Pawn-ticket-Action to recover value of jewelry pawned-Evidence to vary terms of pawn-ticket-Pawnbroker's Ordinance (Cap. 75), s. 6.

In an action for the return of jewellery pawned with the defendant. a pawn broker or in the alternative far the recovery of its value, it is open to the plaintiff to lead evidence to vary the terms of the pawn ticket with regard to the value .of the articles pawned.

APPEAL from a judgment of the District Judge of Puttalam.

N. E. Weerasooria, K.C. (with him M. I. M. Haniffa), for the plaintiff appellant.

H. V. Perera, K.C. (with him A. Seyed Ahamed). for the defendant respondent.

Cur. adv. vult.

July 15, 1942. HOWARD C.J.

This is an appeal by the plaintiff from an .order .of the District Judge of Puttalam, answering a certain issue in the case in favor .of the defendant and ruling that no evidence can be led too vary the terms .of documents P 1 and D 1, with regard to the articles pawned. The plaintiff instituted the action to obtain an order against the defendant far the return of certain jewellery pawned with the defendant or in the alternative far the recovery .of a sum .of Rs. 1,000, being its value. The defendant, in his answer, whilst admitting that the articles were pawned with him, averred that they were stolen and that their value was Rs. 310, which sum exceeds the am aunt due to him by way of principal and interest .on the loon. During the framing .of the issues, the pawn-ticket, P 1, and its counterfoil, D 1, were read and received in evidence by consent. These documents gave the value .of the articles pawned at Rs. 310. The appellant intended to lead evidence that the articles were in fact worth Rs. 1,009.37. It was in these circumstances that the said preliminary issue was framed as follows :

"Can plaintiff read evidence to vary the terms .of P 1 and D 1 with regard to the value and description .of the articles pawned? "

In accepting the defendant's contention the learned Judge stated that section 6 .of the Pawnbroker's Ordinance (Cap. 75) provides that the pawn-ticket should be in the prescribed form. The farm itself provides

for a statement as to the value of the articles pawned. He, therefore, held tl1"t P 1 and D 1 represent an agreement required by the law to be reduced to that particular form. Hence the law required the value of the articles pawned to be specified and the statement with regard to such value cannot be regarded as a mere recital. The learned Judge also held that, as the value of the articles pawned has been mentioned because of the requirements of the law, the entry with regard to it cannot be regarded as coming within Explanation 3.to section 91 of the Evidence Ordinance. Nor -in the learned Judge's opinion could evidence be admitted under proviso of section 92 to vary the terms of P 1. To sum up the conclusions of the learned Judge, he held that the contract of pawn had been reduced to the form of a writing and moreover it was matter required by law to be reduced to the form of a document. Hence, of the exceptions being applicable, sections 91 and 92 of the Evidence Ordinance precluded the admission of the evidence sought to be led by the appellant.

In this Court, Counsel for the respondent has not supported all the findings of the District Judge. He does, however, maintain that the worth of the articles pawned is matter required by law to be reduced to the form of a document and hence, by reason of section 91, no evidence of such matter except the document itself is admissible. The illustrations to section 91 do not seem to support this contention. Moreover, the discussion on the class of cases, coming within the ambit of the words "matters required by law to be reduced to the form of a document ", to be found on pp..599-602 of the 8th Edition of Woodroff & Ame

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