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
