Sunday, 23 February 2020

When court should not review an order on ground of discovery of new evidence?

 To appreciate the very contention raised by him, we have to import the legal requirements specifically spelt out under O. 47, R. 1, sub-rule (c) of the Code of Civil Procedure. If a new discovery of evidence oral or otherwise is demonstrated, when the second appeal is sought to be admitted, I am firm in saying that such discovery of new evidence must contain (i) the relevancy of the same; and (ii) be such of a character that, if it had been given in the suit, it might possibly have altered the judgment. It must atleast be such as presumably to be believed and if so, it would be conclusive. The discovery afore-stated is not only a discovery of new and important materials or evidence; that would entitle a party to apply for, review, but the discovery of any new material or evidence and important matter must be one which was not within the knowledge of the party then the decree was made the person seeking a review should prove strictly the diligence as clearly spelt out in the above rule which he claims to have exercised and also that the matter or evidence which he wishes to have access to is, if not absolutely conclusive, at any rate, nearly conclusive. What has become more imperative is that a mere and bare assertion in the affidavit that the party could not trace the documents earlier or he was not in possession not in custody of said documents is not a ground at all to seek legal aid provided under the above rule. It is not the proper function of a review application to supplement the evidence or to make it serve the purpose of a merely introducing evidence which might possibly have had same effect upon the result.


9. Importing the above legal ratio to the grievances demonstrated before me, I am totally unable to identify any of the materials to show that the petitioner had acted with every due diligence all through the trial, having not been possessed with new materials now sought to be introduced. Even if it is admitted or allowed, it could not pose a conclusion of the trial or finality of the whole litigation between the parties herein. On the other hand, a new type of legal battle will be erupted, perhaps, in the pretext of the permission of the Court, which in my considered view, cannot at all be permitted. No material is available to show that in the long passage of time, the petitioner was not having the custody of the said document or the new fact, nor he was deprived of the said material.

IN THE HIGH COURT OF MADRAS

Review C.M.P. No. 117 of 1994 in S.A. No. 839 of 1994

Decided On: 20.02.1996

Shanmugam Servai  Vs.  P. Periyakaruppan Servai

Hon'ble Judges/Coram:
N. Arumugam, J.

Citation: AIR 1996 Mad 411


1. Heard. Seeking the review of the judgment delivered by me on 4-8-1994 in S.A. 839 of 1994, under O. 47, R. 1 and Section 114 of the Code of Civil Procedure. The present petition is filed. I have rendered the following judgment on 4-8-1994 when the Second Appeal came for admission :--

"Heard the contentions raised by Mr. E, M. Sudarsana Natchiappan, the learned counsel appearing for the appellant. While seeking the admission of the second appeal, the learned counsel contended that while reversing the judgment of the trial Court, the appellate Court has failed to consider the document of title, Ex. A. 1, the U.D.R. patta granted in the name of the plaintiff and that the said aspect, in the context of the prior mortgage deed created and executed by defendant, has clearly established the title of the appellant/plaintiff to the suit property. In this context, I have perused the judgment of both Courts below and the findings given by the lower appellate Court with reference to Ex. A-1 in the context of the title, viz., mortgage-deed executed by the defendant which is anterior to Ex. A-1 it is perfectly correct and at par with law. Except the abovesaid contention, no other material has been placed either before the trial Court, or the appellate Court, to prove the title of the plaintiff. It is to be noted that the case of the plaintiff is one of permissive possession given to the defendant to put up a hut and live therein, However; accordingly the hut was put up and the defendant is in occupation of the suit property. Under the circumstances, the title of the plaintiff is seriously disputed. It is well settled judicial pronouncement that the person who seeks remedy before the Court of law, by filing a suit, must discharge his onerous and prove his case, by acceptable and cogent evidence and by avoiding the same, he cannot be allowed to stand on the logs of the defendant. While applying this legal ration enumerated by the judicial concession, I am at every difficulty to accept that the plaintiff is clearly in the teeth of the above legal ration. So much so, it cannot be allowed to build his case upon the rights, if any found, on the defendant. For all the said reasons, I find that the lower appellate Court has justifiably come to the conclusion and accordingly reversed the judgment of the learned trial Court. The five questions of law, enumerated in the grounds of appeal, in my respectful view, will not come under the purview of Section 100 of the Code of Civil Procedure and inasmuch as the same remains, I am unable to entertain the second appeal. For the reasons stated above, the second appeal is dismissed at the admission stage."
2. While seeking the review of the above order, Mr. Sudharsana Natchtappah, learned counsel appearing for the petitioner would frankly concede that there was no error of law or facts apparent on the face of the judgment. But, however his endeavour was that a new fact was found discovered under the pretext of some documentary evidence which directly get itself involved in the instant case and it would give a total guidance for the proper adjudication of the matter in hand. While stating so, learned counsel would advert O. 47, R. 1(c) of the Code of Civil Procedure which reads as follows :

"Any person considering himself aggrieved

(a) and (b) x x x

(c) by a decision on a reference from a Court of small causes,

and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order".

3. Adverting to the above procedural law, it was argued that the suit property was covered in the patta pass book scheme of the particular revenue District during the year 1976-77 and then it was re-surveyed and accordingly the persons found in possession of the suit property were subscribed with their names mutatis and mutandis, as recorded in the revenue records and such patta pass book and the connected revenue documents prove the title of the appellant and those records have not been produced before the Court earlier and only after the impugned judgment was rendered by this Court, the petitioner came to know the existence of the said document and that therefore, he should be given an opportunity to produce the same, which would amount to a new discovery covered under the sub-rule (c) of Rule 1 of O.47 of the Code of Civil Procedure.

4. To entertain a review pursuant to O. 47 of the Code, first of all, a Court must identify a mistake or error warranting a review under O. 47, R. 1, which is most often an error of fact and may in certain cases be one of law. But in all cases it should be an error of inadvertence and in the case of an error of law, it should not have been arrived at by a process of conscious reasoning and the correction suggested or asked for should be such that the bare statement carriage conviction without further reasoning or extraneous matter. Then, the test to be applied is whether the Court itself would have made the correction, if it was aware of the particular fact of circumstance while writing the judgment. An erroneous view on a debatable point of law or a failure to interpret the law correctly would not be a mistake or error apparent on the face of the record.

5. In this context, I would like to refer that I have had an occasion to discuss the concept of error apparent for the purpose of condoning the delay, in Kandasamy C. Rathinambal MANU/TN/0049/1996 : AIR1996Mad252 . In the said judgment, I have observed as follows :--

"It is deducible that review though literally and even judicially meaning re-examination or re-consideration, but the basic philosophy inherent in it is the universal acceptance of human fallibility and yet in the realm of law, the Courts as well as the statute strongly loan in favour of finality of decision and exceptions to them have been carved out to correct accidental mistakes or miscarriage of justice for which even there was no specific rules or statutory provision framed by the Court of higher forum to rectify such mistakes. Thus, the horizon of the power of the Court and the law, in order to render proper justice, has been extended by Supreme Court to an aggrieved person by virtue of a decree or order on the ground of human fallibility, or a mistake or error of law and to prevent or end the miscarriage of justice. Though finality is presumed on the rendering of every judgment or order, when it is found with apparent error or mistake of law or miscarriage of justice, then the same forum will rectify the same, in spite of the fact that in the realm of law, Courts in this country and even the statutes learn strongly in favour of finality of decision legally and properly made. However, exceptions both statutorily and judicially have been carved out to correct accidental mistakes or to prevent the miscarriage of justice. This philosophy has been carved out from the very object of the statute provided under O. 41, R. 1 of Code of Civil Procedure. It is, therefore, under the circumstances, if any decree or order passed by a Court is found inherent with apparent error or mistake of law, causing miscarriage of justice and for other sufficient reason by which justice could not be rendered to the aggrieved person, review of the said order of judgment is possible, but certainly not otherwise."
The Bar for the respective parties are certainly not in controversy on the above principal of law laid down by the Apex Court as well as this Court, on more than one occasion. In fact, learned counsel for the petitioner would agree that the impugned judgment passed by me, on 4-8-1994 is in conformity with the basic ingredients spelt out in the above procedural law. Even so, learned counsel for the petitioner has sought indulgence of this Court, on the basis of the discovery of new fact viz., material document, which is clamoured under sub-rule (c) to R. 1 of O. 47 of the Code.

6. To appreciate the very contention raised by him, we have to import the legal requirements specifically spelt out under O. 47, R. 1, sub-rule (c) of the Code of Civil Procedure. If a new discovery of evidence oral or otherwise is demonstrated, when the second appeal is sought to be admitted, I am firm in saying that such discovery of new evidence must contain (i) the relevancy of the same; and (ii) be such of a character that, if it had been given in the suit, it might possibly have altered the judgment. It must atleast be such as presumably to be believed and if so, it would be conclusive. The discovery afore-stated is not only a discovery of new and important materials or evidence; that would entitle a party to apply for, review, but the discovery of any new material or evidence and important matter must be one which was not within the knowledge of the party then the decree was made the person seeking a review should prove strictly the diligence as clearly spelt out in the above rule which he claims to have exercised and also that the matter or evidence which he wishes to have access to is, if not absolutely conclusive, at any rate, nearly conclusive. What has become more imperative is that a mere and bare assertion in the affidavit that the party could not trace the documents earlier or he was not in possession not in custody of said documents is not a ground at all to seek legal aid provided under the above rule. It is not the proper function of a review application to supplement the evidence or to make it serve the purpose of a merely introducing evidence which might possibly have had same effect upon the result.

7. The expression, "any other sufficient cause" found in O. 47, R. 1(c) of the Code must be interpreted to mean a reason sufficient or ground at least analogous to those specified immediately before. It must be ejusdem generis to the reasons previously stated. There is a distinction between the words, 'ejusdem generis' and 'atleast analogous'. The Latin phrase's ejusdem generis' according to Chamber's Twentieth Century Dictionary means, 'of the same kind'. The word analogous means bearing same; correspondence with or resembles to, similar in certain circumstances or relation". So, the phrase 'ejusdem generis' is more restricted than the word, 'analogous'. The popular meaning for the word, ejusdem generis is, it is a rule of legal construction that general words following enumeration of particulars are to have their generality limited by reference to the preceding particular enumeration and to be construed as including only all other articles of the like nature and quality.

8. In Ramaswami Padeyachi v. Shanmuga Padayachi, MANU/TN/0171/1958 : (1959) 2 MLJ 201 , a learned single Judge of this Court had the occasion to consider almost the (sic) in facts involved in the instant case and held ejusdem generis in the following words :--

"When a review is sought under O. 47, R. 1, Civil Procedure Code, on the ground of discovery of new evidence, such evidence must be (1) relevant and (2) of such a character that, if it had been given in the suit, it might possibly have altered the judgment. The new evidence must atleast be such as is presumable to be believed, and, if believed, would be conclusive. It is not only the discovery of new and important evidence that entitles a party to apply for a review, but the discovery of any new and important matter which was not within the knowledge of the party when the decree was made. The party seeking a review should prove strictly the diligence he claims to have exercised and also that the matter or evidence which he wishes to have access to is, if not absolutely conclusive, at any rate, nearly conclusive. A bare assertion in the affidavit that the party could not trace the documents earlier will not so. It is not the proper function of a review application to supplement the evidence or to make it serve the purpose of merely introducing evidence which might possibly have had some effect upon the result."
9. Importing the above legal ratio to the grievances demonstrated before me, I am totally unable to identify any of the materials to show that the petitioner had acted with every due diligence all through the trial, having not been possessed with new materials now sought to be introduced. Even if it is admitted or allowed, it could not pose a conclusion of the trial or finality of the whole litigation between the parties herein. On the other hand, a new type of legal battle will be erupted, perhaps, in the pretext of the permission of the Court, which in my considered view, cannot at all be permitted. No material is available to show that in the long passage of time, the petitioner was not having the custody of the said document or the new fact, nor he was deprived of the said material.

It is, therefore, under the circumstances, in my considered view, the petitioner is clearly not in the teeth of O. 47, R. 1(c) of the Code of Civil Procedure and for the said reasonings given above, the petitioner cannot have an escape and he has lost his last attempt in furthering the litigation any more.

10. In the result, for having identified no grounds or merits, the petition for review has necessarily to fail and accordingly, it is dismissed. However there will be no order as to costs for either of the parties, under the circumstances.

11. Petition dismissed.


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