128-NLR-NLR-V-02-LOKU-BANDA-v.-ASSEN.pdf
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LOKU BANDA v. ASSEN.C. R., Matale, 1,214.
■Judgment in appeal—Review—Discovery of fresh evidence.
The Supreme Court has power to review a judgment of its ownpassed in appeal where it appears that fresh evidence has beendiscovered since such judgment was pronounced.
1897..
February 22and
March 12.Withers, J.
rj^HE facts sufficiently appear in the judgment.
Van Langenberg, for petitioner.
* Wendt, for respondent.
Cur. adv. vutt.
12th March, 1897. Withers, J.—
On the application of the plaintiff in case No. 1,214 of the Courtof Requests of Matale, entitled Loku Banda, late Arachchi v. Ossen,I ordered the record to be brought up in order to deoide whetherthere should be a new trial of the case on the grounds put forwardby the plaintiff in his application.
The plaintiff had sued one Ossen as the heir-at-law of the ownerof a certain land, to have it declared that that land which Ossen, assuch heir-at;law, possessed was liable for a mortgage debt which hadbeen assigned to the plaintiff at a Fiscal’s sale. In the opinion ofthe Commissioner he failed to prove the execution of the mortgagebond which created the debt, and in consequence the Commissionerdismissed his action. An appeal was taken from this judgment, andit was argued before me. I considered that the Commissioner wasright in dismissing the plaintiff’s case.
Owing to the loss of a record in the Commissioner’s Court theplaintiff was unable to produce a piece of evidence in writing whichmight have estopped the defendant from denying two importantfacts (which he did deny in his answer), that the person who pur-ported to grant the bond did in fact make it, and was the owner ofthe property which she purported to hypothecate for the debt whichhas been assigned to the plaintiff. This was the ground on whichthe plaintiff applied for a new trial. After the affirmance of theCommissioner’s judgment and the return of the record to his Courtthis important piece of evidence was discovered in the record roomof the Court below.
I am-satisfied that the plaintiff used all due diligence in attemptingto discover this document, and l am satisfied that it was quite out ofhis power to give secondary evidence of that document, and to provethe defendant’s signature to it and presentment of it.
4897.
February 22and
March 12.Wixhbbs, J.
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But the ohief question which was discussed at the hearing of thismatter waswhether under oiroumstances such as the present I couldmake any order in revision- 1 do not think this case has beenprovided for in our Jurisdiction Ordinance, No. 1 of 1889. At firstI thought it came within the combined provisions of seotions 21 and39 add 40 of Ordinance No. 1 of 1889, but my better judgment isthat it does not come within those provisions. Revision must notbe confounded with review, and we have not taken over, as far as Iam aware, the provisions of the Indian Act of Procedure which relateto the review of judgments on the ground (with others) of thediscovery of fresh evidence.
Still I am not prepared to say that this Court cannot review itsjudgment passed in appeal on such a ground as the present one,when I bear in-mind the case of ex parte Gordon decided by the FullCourt, presided over by Phear, C.J., which will be found reportedin 2 8. C. G. 108. Indeed I might go so far as to say that I wouldtreat this oase as if my judgment had been brought up in review asdistinct from revision, if I thought that the plaintiff had made outsuch a proper case, for the parties have been fully heard by theircounsel; but on a careful consideration of the original proceedingsof the Court below, I come to the conclusion that the plaintiff hasnot made out a proper case, for he did not exhaust all the evidencewhich was available to him to prove the making of the mortgagebond, or rather, perhaps, I should say that he did not satisfy th°>Commissioner that the attesting witnesses to the mortgage bond,who, according to the notary, professed themselves to be personallyacquainted with the maker of the bond, and who, therefore, mighthave indentified the maker, were dead, and therefore could not beproduced to testify to the identity of the person who made the bond.For these reasons I must dismiss the petitioner’s application, but asI ordered the oase to be brought up I think it right to make no orderas to costs. Nor do I think that the plaintiff should suffer more thanhe has done from the unfortunate misplacement of a record in theCourt below.
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