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MUTTUSAMY PILLAI v. PONNEN KANKANI.D. C., Kandy, 8,064.
Practice—Conduct of trial—Tender of evidence—Judge's refusal to admit it—Necessity for recording refusal and reasons therefor—When such refusalis good ground for granting a re-hearing of case.
A party accepting a Judge’s ruling or opinion as regards the relevancyof evidence which he proposes to offer, without making any effort toproduce it, takes the risk upon himself of losing the case for want ofsuch evidence.
If a Court refuses to take any evidence tendered, counsel should notsubmit to such refusal, but should either call the witnesses, propose thequestions to be put to them, and have the reasons for the Judge’srefusal recorded, or should ask him to record that he would not entertain any evidence on the point in question.
rpHIS was an action by the payee against one of two makers ofa joint and several promissory note.
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The defendant pleaded payment and satisfaction by payment tothe superintendent of Templestowe estate, in consideration ofwhose advances to the defendant on the security of the plaintiffthe note in suit was made. Issue being joined, the defendantled evidence in support of his plea and closed his case. There-upon the proceedings recorded showed that plaintiff was calledand his case closed. The District Judge upheld the plea ofpayment and dismissed plaintiff’s action.
Plaintiff appealed. In his petition of appeal he stated theplaintiff’s counsel “ offered to prove ” that the note in questionwas given for a debt due by the defendant alone, and that thenote had no connection with the other maker’s advance accounton Templestowe, which did not commence till almost a year afterthe date of the making of the note ; and the appellant complainedthat the District Judge refused to admit such evidence on theground of irrelevancy. These allegations in the petition of appealwere supported by an affidavit, and the District Judge admittedtheir correctness.
Dornhorat, for appellant, argued on the merits and pressed for are-hearing of the case in the Court below.
Wendt, for defendant.
Cur. odv. vult.
19th March, 1895. Withers, J.—
[After dealing with the merits of the case, said :—j
Mr. Dornhorst invited our attention to his application for leaveto his client to call rebutting evidence and to prove that the pay-ment deposed to by Allagan was for an estate matter betweenhimself and the deceased Welayan, and had nothing to do withthe note sued on, which was for a money consideration betweenhimself and the defendant, and which was simply backed by thesaid Welayan as a security.
We reserved the consideration of his application. We find our-selves unable to accede to Mr. Dornhorst’s application, and so weaffirm the judgment according to our first intention. We do sofor the simple reason that defendant’s Proctor should not havesubmitted to the District Judge’s refusal to take the evidencewhich he proposed to call on behalf of his client, the nature ofwhich appears notin the record but in the affidavit, and whichthe District: Judge advised himself he should not take because ofits irrelevancy.
The defendant or other witness should have been called, andthe questions proposed to be put to him recorded, with reasonsfor refusing them to be put, or at least the plaintiff’s Proctor
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should have asked the District Judge to record that he would notentertain any evidence directed to a certain point.
A party must not take the District Judge’s opinion and makeno effort, simply on the chance of securing a judgment withoutevidence on his side, and then, if he loses, apply to this Court tosend the case back for him to take the active measures which inhis own interest he should have taken at the trial below.
[After commenting on the facts of the case, said :—3
The plaintiff called no witnesses to corroborate his statementsand to contradict the evidence given by the witnesses for thedefendant. He says he told the District judge that he hadwitnesses in attendance to prove that the note in question wasgiven for a debt due by the defendant alone in respect of trans-actions which took place on and before 21st July, 1892, and thatthe note had no connection with deceased maker’s advanceaccount on Templestowe, which did not commence until June,1893. This evidence was not called by the plaintiff, he says(in an affidavit presented at the hearing in appeal), because theDistrict Judge thought such evidence would be irrelevant. Now,if the plaintiff accepted this ruling or opinion, he took the risk ofthe District Judge deciding against him. He oould not split thetrial in two and take his chance of the Judge’s finding for him onthe evidence before the Court j and if the judgment turned outto be against him, to ask for a re-hearing to call witnesses whomhe abstained from calling at the trial.
It is different when a District Judge makes an order refusingto allow certain questions to be put. Against Buch refusal anappeal is competent; but no order was made here : the plaintiffacquiesced in the opinion of the Judge, and he closed his case, andafter some days’ consideration the Judge decided againBt him.In these circumstances, I am not disposed to allow a re-hearing,and on the e^ndence before me I think the judgment' for thedefendant is right.
MUTTUSAMY PILLAI v. PONNEN KANKANI