New evidence in my affidavit before my cross exam

please, can somebody reply to it.....

Your question required to be answered elaborately because I found quite often on this forum the litigants appear and give legal advice to others with distorted versions of procedural law. They, by their responses, reveal that they have not gone through the procedural law (civil as well as criminal) and with their subjective experiences (mostly their own case) want to tutor the others. The first thing which we have to understand is that the law demands the fair play. But, here, the queriest litigants are advised by non-lawyers that "to keep your documents secret and do not reveal your defence till your evidence comes." And sometimes the advice goes to such an absurd extent that --"do not reveal it till final arguments". It is absolutely wrong advice and if the opposite party acts correctly, the party which is not disclosing its defence or not placing its documents including documentary evidence at the first instance, i.e., at the time of filing petition or written stament may do it at its own peril and face the ill consequences.

In your case the judge's order of dismissing your application is fair and proper. The reason is this. The evidence shall be strictly to prove the pleadings. Pleadings are the facts mentioned in the Petition / written statement / rejoinder. It is also imperative that the documents on which parties rely shall be placed on the record alongwith petition / written statement. But the courts would not follow this rule strictly and allow the parties to place their documents till framing of the issues. But after the issues, if the party wants to place any document, it has to seek the permission of the court and other party can object it on reasonable grounds. If the party wants to place documents at a later stage about proving the facts not mentioned in their pleadings, the courts shall certainly will not allow them, because that party is playing the trick by giving surprise to the opposite party.

In your case, the matter further acerbates because that the documents you want to bring on the record are electronic evidence and they require to be proved not only of their genuineness but also their non-tampering. Besides they have not been mentioned in the pleadings.

The courts generally take liberal view and give full opportunity to the parties to prove their cases. Despite above clarification, I suggest you to go to High Court seeking permission to place those documents on record and prove them in accordance with law. There is likelihood for you to succeed if you show to the court that in your written statement, you alluded about the contents of the electronic documents which you want to bring on record. But the case will prolong because the opposite party will certainly impugn the genuineness of the electronic documents and if it is voice documents, the owner of the voice questions its veracity.

I just wrote it to put the things in proper perspective but not to insult any one.

I am NOT an advocate but here's my advice with that disclaimer. I have tried to stick to the issue. To give precise advice, one needs to take a look at the written Order/Judgment of the Court. I presume that he has rejected your application because you did not mention the videos in your Written Statement.  If that is the case, and if that is on the record, file an Application to amend the Written Statement and provide unambiguously and in detail your defense referring to the Video. Explain why this was not provided in the original Written Statement.  You better have good reasons. If not, cook some convincing ones. If the Judge rejects this application, then appeal to the High Court.  This, in my humble opinion, is the best course of procedural posturing.  Do some research as to when and when amendments to Written Statements/Petitions are allowed before filing your application. During arguments, have these judgments ready.

---

Do NOT file an appeal at this time. 

I forgot to mention... You will need to also file an application to recall the witness (your wife) based upon the new evidence if her cross examination is over.  The general rule is that such applications should be allowed if not considering the evidence would not enable the Court to reach a just decision. Opposite party should not be prejudiced in any way. Merely having the evidence unfavorable to her is not considered to be prejudicial to her. Prejudicial to her would be if for some reason she is not able to counter this evidence now, which she would have been able to do earlier (e.g. some witness is dead now but was available to testify in her favor regarding the videos). Presumably that is not the case here.

Ah! You may say that you had already provided a reference in your WS. Now he is saying that you have not. So, in your application to amend the WS, do mention that you had referenced the videos but are doing so in more detail now based upon the Judge's Order.  This way you have EXHAUSTED all remedies in the trial Courts before approaching the High Court. That is one of the requirements of filing an appeal. Before someone criticizes my advice, please note that you are NOT asking the trial Court to overturn its own judgment. He cannot do so.  You are implicitly abiding by his order, amending the WS, and rectifying the defect to enable him to pass a new Order which is not overturning the previous one or contradicting the previous one. This, you must bear in mind. 

Rakesh Sharma

merely adducing the CD does not mean anything. Take help of a Lawyer.

 

I find your version of story fictitious.

 

No judge would reject the evidence in this way.

did you miss to list CD in your list while submitting your ws in the first place?.

no document to be produced without leave of court after filing of ws.

 

then file an application  as per order 8 alongwith another list 

 

Also answer to judge's objection ... as to relevancy of CD.

 

But main task that you need to prove this document./CD

 

 

 

Thatks to all to reply to this topic...the air is much more clearer now. @Damayanti...you are right i didnt mention about the CD's in the list of documents...what to do now...? And most important thing is that wife has not objected the authenticity of the CD...