please help me to understand 'strict proof' aspect in CPC O47 R 1(c) r/w R 4(2)(b)
Jamai Of Law
(Querist) 28 December 2010
This query is : Resolved
Dear Sir,
CPC O47 R 1(c) talks about 'grounds' applicable to apply for a review of an Oder or decree.
Three grounds as:::
1. discovery of new and important matter or evidence which, after the exercise of due diligence
I. was not within his knowledge
II. or could not be produced by him at the time when the decree was passed or order made,
2. or on account of some mistake or error apparent on the face of the record
3. or for any other sufficient reason
These above three are 'grounds', which a review-applicant 'alleges' about.
CPC O47 R 4(2)(b)also uses word 'ground' as follows.
"....on the 'ground' of discovery of.... which the applicant alleges .... without strict proof of such allegation"
So shouldn't it mean that strict proof is required only for 'discovery of new matter or evidence'?
'New' is relating to something which isn't on the record/exhibits.
there is no problem to understand meaning of 'not within the knowledge'
But shouldn't it mean that it should suffice to admit in pleadiing that 'irrespective of due diligence Review-Applicant couldn't adduce the evidence although known to him, before the order was passed'?
shouldn't it mean that requirement of 'strict proof' doesn't apply to process of 'due diligence in collecting evidence'?
Please help me to sort out my doubt.
Regards
Devajyoti Barman
(Expert) 28 December 2010
Yes you are quite right. The due dilligence means the applicant was not neglient in adducing evidence and the 'new' evidence has come to light only after passing of the order or decree. Definitely the evidence in question was not in his knowledge.
M V Gupta
(Expert) 29 December 2010
"Absence of knowledge" of the new evidence even after exercise of due diligence before the order was passed is the quintessence of the ground to be urged in the review application. If you state that u could not adduce evidence even though u had the knowledge of the fact, the same will not support ur application for review.The element of "discovery" as required in the CPC provision qouted by you cannot be urged.
