APPLICATION TO ADDUCE FRESH EVIDENCE IN APPEAL- SEC 773 OF THE CPC. REQUIREMENTS NECESSARY TO BE ESTABLISHED
APPLICATION TO ADDUCE FRESH EVIDENCE IN APPEAL- SEC
773 OF THE CPC. REQUIREMENTS NECESSARY TO BE ESTABLISHED
Case No. CA 731/1993 (F)
D.C. (Kalutara).
4643/P
Payagala Badalge
Agnes,
Vs
Walathara Arachchige Piyasena,
Counsel : L.B.J Peiris for the 3rd defendant appellanN
R M Daluwatta PC for 20/24 defendant appellants Ranjan Suwandaratne for the
Plaintiff.
Re argued
on: 04.06..2007.
Decided on: 27.09.2007.
Abdul Salam, J.
Order
This order arises
on an application made by the 3rd defendant appellant seeking leave of court to
adduce fresh evidence under section 773 of the civil procedure code . In this
case, the learned district judge has entered interlocutory decree for the
partition of the land, allotting shares to the parties, as specified therein.
There are three appeals presently pending in respect of the said interlocutory
decree.
The 3rd defendant
appellant has made the present application, seeking permission of court to
adduce fresh evidence to establish certain other claims to the corpus, in
respect of which she has not been able to produce all the relevant
documents. 3rd defendant appellant in
her statement of claim[2] has asserted rights in the corpus from two sources.
By paragraph 2 of the statement of claim, she claims title to the subject
matter through two original owners, to wit; Thebuwana Arachchige Baba Naide and
Payagala Badalge Lewis Gurunnanse. In paragraph 12 of the statement of claim
she states that the rights of Baba Naide referred to above were sold by fiscal
conveyance No.
7031 dated
26.7.1911 to Ordiris who was also known as ordirishamy.
As regards the
rights of Lewis Gurunnanse the position
taken up by the 3rd defendant appellant is that his rights devolved on Ordiris
and from him it passed on to the 3rd defendant appellant, as it reflects in
point of contest No
10. The point of
contest No 10 reads as follows.
10. As pleaded in
the statement of claim of the 3rd defendant did Payagala Badalge Lewis
Gurunnanse become entitled to the balance rights of the corpus?
Or did the
balance rights devolve as pleaded in the statement of claim of the 1st
defendant?
As regards the
devolution of title of Payagala Badalge Lewis Gurunnanse the 3rd defendant
appellant seeks to produce the following two documents as fresh evidence.
1.
Mortgage bond No
18625 attested by J.P. Wijeratne N.P dated
2/7/1917.
2.
Extract of the
register of births bearing No 12732 dated 11/9/1923 of Agnes.
These documents,
leave no doubts as to its bearing on point of contest No 10. By producing
mortgage bond No 18625 the 3rd defendant appellant seeks to demonstrate that
Payagala Badalge Baba Singho [4] enjoyed rights in the subject matter by way of
paternal inheritance and those rights subsequently devolved on Ordiris, who is
said to be the father of the 3rd defendant appellant.
Since the 3rd
defendant appellant has sought to produce new evidence, I consider it as
crucial, to touch as briefly as possible, on the question of admission of fresh
evidence at the hearing of the appeal. It is trite law, that reception and/or
admission of new evidence, additional to, or supplementary of the evidence
already taken in a court of first instance, touching the matters in issue, can
only be permitted subject to certain rules that have been formulated for that
purpose.
In Laad vs
Marshall 1954 3 All Eng. Report 745 at page 748 Denning L J enumerated the
conditions applicable to the reception of fresh evidence, as being such
(1)
Which could not
have been obtained with reasonable diligence for use at the trial
(2)
That it would
probably have an important influence on the result of the case, although it
need not be decisive and
(3)
That it is
presumable to be believed or in other words it must be apparently credible
although it need not be incontrovertible.
The principles
laid down in the case of Laad vs Marshall (supra) has been unreservedly
followed in many cases, of our courts. Some of the cases, in which the
principles have been applied are Ratwatte Vs Bandara 70 NLR 231, Beatrice Dep
vs Lalani Meemaduma (1997 (3) SLR 379) and Wijekoon vs. Wijekoon (1986) 2 SLR
325. All these authorities emphasise that reception of fresh evidence can be
justified in appeal, only if it can be shown that the evidence could not have
been obtained with reasonable diligence at the trial.
The 3rd
defendant appellant has not placed any material to satisfy that they were
unable to obtain the mortgage bond in question, upon exercise of due diligence.
The petition and affidavit filed by the 3rd defendant-appellant do
not disclose as to when the appellant made the application to obtain certified
copies of the two documents. In the absence of the 3rddefendant-appellant
satisfying the requirements that she exercised reasonable diligence, it is my
view that she cannot succeed in her application to adduce fresh evidence. The
circumstances in which the 3rd defendant-appellant now seeks to
produce fresh evidence are self-explanatory as to the negligence in prosecuting
her cause in the original court.
To grant leave in
this matter, to the 3rd defendant-appellant, to adduce fresh
evidence, may result in serious prejudice and injustice being caused to the
plaintiff-respondent and other defendant-respondents.
The careless
attitude of the 3dr defendant-appellant, in prosecuting her case in the
district court, in my view, cannot be considered as being favourable to relax
the rule, which is inflexible to some degree, as referred to in Laad vs
Marshall, by Denning L J (supra).
As stated earlier
the 3rd defendant-appellant has not established that the evidence,
she seek to bring in or introduce at the stage of appeal, could not have been
obtained with reasonable diligence for use at the trial. Since the 3rd defendant-appellant
has not cleared this obstacle, I am not inclined to think that her application
to adduce fresh evidence should be allowed.
For the above
reasons the application of the 3rd defendant-respondent made under
section 773 of the Civil Procedure Code is dismissed without costs.
Judge of the
court of appeal
[1]
Before Wijerathne J
[2]
Vide page 148 of
the appeal brief
[3] 3rd defendant appellant.
[4] Vide Mortgage
Bond No. 18625
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