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Jamai Of Law (propra)     29 December 2010

A paradox in O47, Grounds for Review! Experts Comments Pls!!

O47 and scarse citations pro-review suggest that......

 

There is a paradox  (reluctance and .......... unnecessary dispute .............over who's province is it? ...........to correct mistake) that …………

  1. Errors on the face if record shouldn't be found with a magnifying glass.
  2. But the same magnifying glass should be used to suspect that 'the applicant probably didn't act with due diligence to produce important evidence which he claims to be knowing but couldn’t produce at the time of the order, in spite of due diligence’

 

A.  The very existance of 'provision of review' in procedure suggests 'nothing's is a writing on the wall' and an error is a possibility.

 
B.  Many citations available from hon. Supreme court/HC that: "Doctrine of unclean hands" /Maxims of Equity prevails. suppression of a material fact, and judgment or decree obtained by playing fraud on the court is a nullity and non est in the eyes of law. Such a judgment/decree by the first court or by the highest court has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court  ( and hence Review court/jurisdiction  is not a restricted one )even in collateral proceedings.
 

C. Power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it.

 

 

Does the Opponent's acts 'unclean hands' become condonable/pardonable, just because there is the failure to 'produce material evidence within the knowledge' and 'within time', because the party didn't act in due diligence'

 

Is an act of 'Withholding an evidence' about opponent's lies which otherwise would have subverted opponent's tendency again and again of 'unclean hands'  un-condonable during 'review'?

 

Isn't it worth to lose a small battle to win a war?

E.g. By the time India shouts about a terror camp in POK, those are shifted to another location!!! Suffer from a few casualties, and prove the very existance of such terror camps, and then attack so that it doesn't become 'unprovoked invasion'.

 

Wasn't that the responsibility of opposite party to 'come clean' from outset? 

E.g. Does the  "Failure to show 'CC Tv' footage during trial, but showing the same during review" deem uncondonable?

Had ' 'CC Tv' footage' shown during the first trial, it was very likely that opponent had taken another excuses!! 



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