126-NLR-NLR-V-39-KOWLA-UMMA-v.-MOHIDEEN.pdf
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MOSELEY J.—Kowla Umma v. Mohideen.
1937Present: Moseley J, and Fernando AJ.
KOWLA UMMA v. MOHIDEEN.99—D. C. Colombo, 3,962.
Foreign judgment—Action on the judgment of an Indian Court—Proof of copy—Seal of Court or signature of Judge—Evidence Ordinance, ss. 74, 76,and 77.
Where, in an action brought in Ceylon on the judgment of an IndianCourt it is sought to produce in evidence a copy of the judgment,—Held, that the copy produced must either be sealed with the seal of theCourt or be signed by the Judge, who must attach to his signature astatement in writing to the effect that the Court has no seal.
Appeal from a judgment of the District Judge of Colombo.
N. Nadarajah (with him S. Mahadeva), for defendant, appellant.
A. L. J. Croos Da Brera, for plaintiffs, respondents.
Cur. adv. vult.
November 2, 1937. Moseley-J.—
The plaintiffs obtained judgment against one Thana Mohamed in theSubordinate Court of Tuticorin on November 29, 1928, for Rs. 1,100together with interest and costs. The defendant died in 1929 and thisaction was brought in 1935 in the District Court of Colombo against theexecutrix of his estate for the amount due under the said judgment. Theparties went to trial on certain issues, all of which were answered in favourof the plaintiffs for whom judgment was given. Against that judgmentthe defendant appeals on several grounds, of which, in view of the orderwhich we propose to make, I need only refer to one. That ground ofappeal is that the judgment of the Subordinate Court of Tuticorin,marked P 1 in the proceedings, was wrongly admitted in evidence as itwas: not duly proved.
1 31 N. It. B. 184.
MOSELEY J.—Kowla Umma v. Mohideen.
453
The learned District Judge held that it could, not be disputed thatjudgment had gone aganst the defendant in the Subordinate Court ofTuticorin ; that P 1 was a duly certified copy of the judgment of thatCourt and was therefore admissible in evidence under sections 74 and 76of the Evidence Ordinance (No. 14 of 1895).
Now, section 74 of that Ordinance defines what are public documents,.among which, according to sub-section (1) (c), are documents forming theActs or records of the Acts of public officers, legislative, judicial, andexecutive, whether of the Colony, or of any other part of His Majesty’sdominions, or of a foreign country. Section 76, the aid of which wasinvoked by the District Judge, and, together with section 77, by counselfor the respondents, before us, provides for the certification of publicdocuments, but the wording of the section makea it quite clear that theonly public documents contemplated are the Acts or records of the Acts-of public officers of the Colony. That this is so is evident at the outsetwhere the section imposes a duty upon a public officer to give a copy,on payment of fees, of a public document wihch he has in his custody.The section obviously cannot impose a duty on a public officer other thanof the Colony. Any virtue therefore with which the section subsequentlyclothes such a document is limited to public documents of the Colony. •In my view, the District Judge-was wrong in holding that the documentwas admissible under sections 74 and 76. Section 77 merely providesfor the production of certified copies in proof of the contents of suchpublic documents.
The certification of public documents of this nature of a “ foreigncountry ” is provided for by section 78 (6), but this obviously is notintended to apply to public documents of any other part of His Majesty’sdominions, since the section requires certification under the seal of “ anotary public or of a British consul or diplomatic agent”. It seemstherefore that the section which provides for the admission of a documentof this nature, if properly certified, is section 82. This section is as'follows : —
“82. When any document is produced before any Court purportingto be a document which, by the law in force for the time being,inEngland or Ireland, would be admissible in proof of any particular inany Court of justice in England or Ireland without proof of the seal,or stamp, or signature authenticating it, or of the judicial or officialcharacter claimed by the person by whom it purports to be signed, theCourt shall presume that such seal, stamp, or signature is genuine, andthat the person signing it held, at the time when he signed it, the judicialor official character which he claims.
“And the document shall be admissible for the same purpose forwhich it would be admissible in England or Ireland ”.
It is necessary therefore to consider what documents, by the law inforce in England or Ireland, would be admissible in the Courts of thosecountries without proof of the seal, or stamp, or signature authenticatingit, or of the judicial or official character claimed by the person by whomit purports to be signed. Judicial proceedings of colonial Courts may beproved in any Court of justice in England by an authenticated copy ofsuch judgment (Halsbury, vol. XIII., p. 664) . Section 7 of the Evidence39/34
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MOSELEY J.—Kowla Umma v. Mohideen.
Act, 1851, provides that the authenticated copy of the judgment of a Courtof any British Colony must purport either to be sealed with the seal ofthe Court to which the original document belongs, or if the Court has noseal, to be signed by the Judge or one of the Judges of the Court whomust attach to his signature a statement in writing on the copy that theCourt has no seal. Therefore before a judgment of an Indian Court canbe received in evidence in a Court of the Island, it must satisfy one orother of those requirements.
The document in question, P 1, does in fact bear a seal on the reverseside, but it is not the seal of the Subordinate Court of Tuticorin. It alsobears the words “ True copy. (Signed illegibly) Superintendent ofCopyists ”. Thus neither of the alternative requirements has beenfulfilled. The judgment was therefore, in my view, wrongly admitted inevidence.
It would seem to be due to an oversight on the part of the Indian Courtthat the plaintiffs were not furnished with a document which could beproved in the Courts of the Island. It would fall somewhat hardly onthem if their action were to be dismissed. I think that the proper orderwould be to allow the appeal with costs here and in the District Court, toset aside the judgment of ti}at Court and send the case back for trial beforeanother Judge. In these circumstances, it is unnecessary to advert tothe other grounds of appeal.
' Fernando A.J.—I agree.
Case remitted.