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May 11,1911Present: Lascelles C.J. and Middleton J.
MUTTAR v. KATHIRASAPILLAI.
40—D. C. Jaffna, 6,167.
Appeal—Application to call witnesses made to Appeal Court.
Lascelles C'.J.—Apart from the general rule that parties shouldnot be allowed to bolster up their cases by adducing fresh evidenceon appeal, it is obviously dangerous to allow an important witnessto be called after the pinch of the cose has been ascertained andthe precise points located at which the effect of the fresh evidencemight be expected to be decisive.
N this case the plaintiff alleged that he was sub-renter under thedefendant of the toddy farm of Chundikuli, Jaffna, and that
the defendant by a notice published in the district wrongfullyprevented the plaintiff from receiving the profits of the farm, andclaimed damages.
The defendant denied that plaintiff was the sub-renter, andalleged that one Sinnaddy Tambo was the sub-renter. Neitherplaintiff nor defendant called Tambo as a witness in the DistrictCourt. The learned District Judge held that S. Tambo was thesub-renter, and dismissed plaintiff’s action.
The plaintiff appealed.
Bawa (with him J. Joseph), for the appellant, after arguing onthe facts, moved that the case be sent back that S. Tambo’sevidence may be recorded.
Balasingham, for the respondents.
Cur. adv. vult.
May 11, 1911. Lascelles C.J.—
His Lordship discussed the facts, and then continued :—
The evidence, I think, would not justify a conclusion that theplaintiff was in fact a sub-renter under the defendant. It wassuggested that Sinnaddy Tambo should be examined as a witness.This witness would unquestionably be in a position to throw lighton much that is obscure in the case, but I am nevertheless unable toaccede to this suggestion'. Apart from the general rule that partiesshould not be allowed to bolster up their cases by adducing freshevidence on appeal (Evans v. Benyon'), it is obviously dangerousto allow an important witness to be called after the pinch of thecase has been ascertained and the precise points located at whichthe effect of fresh evidence might be expected to be decisive.
I think that the judgment should be affirmed and the appealdismissed with costs.
Middleton J.—I entirely "agree.
' 37 C. D, 345,
MUTTAR v. KATHIRSAPILLAI