New evidence after filing for appeal
x
(Querist) 03 April 2013
This query is : Resolved
Plaintiff after losing his case for grant of Specific Relief filed for appeal. Defendant has found that the Plaintiff has now sued the Main Witness(PW2) in the above case for forgery and misappropriation of funds in another case. PW2 had applied for Anticipatory Bail which was denied by the High Court and the Judgment is on the website of the High Court.
My question for the Panel is that is it possible in some way to enter the above Judgment into the Record.
Thanks in advance
Raj Kumar Makkad
(Expert) 03 April 2013
The subsequent case has nothing to do with the present controversy of specific relief between the parties hence neither the said order is liable to be brought on file nor is any provision to do so.
x
(Querist) 04 April 2013
The reason to bring the new Judgment on the record is to prove that the Plaintiff and PW2 had committed perjury in the first suit. During the first suit they had testified to certain things but in the second suit they testified to the contrary proving the perjury.
How do we bring the above fact to the notice of the Judge?
prabhakar singh
(Expert) 04 April 2013
IN Order 41, Rule 27 of the Civil Procedure Code there are three circumstances given where in presence of any of the three, production of additional evidence can be allowed by the Appellate Court. Firstly, the Trial Court had refused to admit evidence which ought to have been admitted. Secondly the party who wanted to produce additional evidence had exercised due diligence and such evidence was not within his knowledge or reach during the trial of the suit. Thirdly, the additional evidence can be ordered to be produced if the Court feels that a document was necessary for pronouncing of the judgment.
(Supreme Court of India
Shalimar Chemicals Works Ltd. vs Surendra Oil & Dal ... on 27 August, 2010
Author: A Alam
Bench: Aftab Alam, R.M. Lodha)
Hence you can move an application procuring now a certified copy of that judgement,stating you were not aware of it earlier,showing reasons of it's relevance in the case,and stating there would be no need to adduce any oral evidence causing any delay in the proceedings.
BUT IF WHAT YOU ARE CONCEIVING IS NOT EXACTLY CORRECT THE TESTIMONY OF PW2
WHO WAS SUED BY PRESENT PLAINTIFF SHALL GAIN A LITTLE MORE WEIGHT OF CREDENCE BRINGING THIS JUDGEMENT ON RECORD.IT SEEMS TO BE A PACKAGE TO BE CARRIED WITH MUCH ATTENTION AND CARE.
Raj Kumar Makkad
(Expert) 04 April 2013
The impugned order of the high court rejecting the bail application in some other case against a witness to the mentioned case pronounced after the decision of the case before the trial court so the question of having or not having its knowledge during the trial before the lower court do not arise.
I am still of the opinion that the matter is suit for specific performance. The witness regarding whom the bail application stands dismissed, is not a party to the present controversy hence his fate in another case has no bearing over the facts of the present case in hand. Even then if the querist deems fit, he can move ahead as advised above.
prabhakar singh
(Expert) 04 April 2013
What opinion one hold blindly is not a matter if one wants remain blind and deaf about Order 41, Rule 27 of the Civil Procedure Code.i have spoken just three condition in which such an evidence could be accepted.
I am not claiming author has circumstances or not.
Raj Kumar Makkad
(Expert) 04 April 2013
Blind and deaf???????????????
Anyway, None can raise any doubt about the legal provisions but a layman querist here requires solution to his problem and not typical legal provisions. Such provisions are meant for the lawyers and not for the poor litigants. They just want whether this or that is possible within the ambit of law or not.
prabhakar singh
(Expert) 04 April 2013
Without having opportunity of handling a brief we can not surmise sitting here,his case satisfies the ingredients of provisions
or not. It is not a sin to guide authors here with reference to provisions who more often than not ask for judgements from experts in support of opinion formed.
Devajyoti Barman
(Expert) 04 April 2013
Though additional evidence is permissible in appeal, the appellant shall have to show that it was not within his knowledge during trial.
The court is not for rescue of negligent and reckless litigant.
