Report No. 69

VI. Illustration (d)

56.27. Under it, the Court may presume that a thing or state of things which has been shown to be in existence within a period shorter than that within which such things or state of things usually cease to exist, is still in existence. But the Court must take into account this fact-"It is proved that a river ran in certain course five years ago, but it is known that there have been floods since that time which might change its course.".

56.28. We have no comments on this illustration, except that we would like to point out that certain important cases of presumption of continuance of human affairs are dealt with in special sections-e.g., the presumption of continuance of life.1

1 Section 107.

VII. Illustrations (e) and (f)

56.29. Illustrations (e) and (f) to section 114 empower the court to presume-

"(e) That judicial and official acts have been regularly performed;

(f) that the common course of business has been followed in particular cases."

But the Court shall also have regard to such facts as the following, in considering whether such maxims do or do not supply to the particular case before it:

"As to illustration (e)-A judicial act, the regularity of which is in question was performed under exceptional circumstances.

As to illustration (f)-The question is, whether a letter was received. It is shown to have been posted, but the usual course of the post was interrupted by disturbances."

These illustrations need no comments.

VIII. Illustrations (g) and (h)

56.30. Illustrations (g) and (h) empower the court to presume-

"(g) That evidence which could be and is not produced would, if produced, be unfavourable to the person failing to produce.

(h) That if a man refuses to answer a question which he is not compelled to answer by law, the answer, if given, would be unfavourable to him." But the Court shall also have regard to such facts as the following, in considering whether such maxims do or do not apply to the particular case before it:

"As to illustration (g)-A man refuses to produce a document which would bear on a contract of small importance on which he is sued, but which might also injure the feelings and deputation of his family;

As to illustration (h)-A man refuses to answer a question which he is not compelled by law to answer, but the answer to it might cause loss to him in matters unconnected with the matter in relation to which it is asked."

These two illustrations are of particular interest in so far as they arise out of the very process of giving evidence.

IX. Illustration (i)

56.31. Illustration (i) empowers the court to presume

"(i) That when a document creating an obligation is in the hands of the obligor, the obligation has been discharged."

But the Court shall also have regard to such facts as the following, in considering whether such maxims do or do not apply to the particular case before it:

"As to illustration (i)-A bond is in possession of the obligor, but the circumstances of the case are such that he may have stolen it."

This illustration does not require any discussion.