PARTITION- APPLICATION TO LEAD EVIDENCE IN APPEAL
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 appellant N 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[1]
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
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 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 shownthat 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 3rddefendantappellant 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
Kk/-
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