The need for diligence and nearly conclusive evidence in review applications under the Civil Procedure Code.

This is an application for review of judgment under O.47, R.1, Civil P.C., and under Ss.151 and 153, Civil P.C. The petitioner alleges that there are some errors apparent on the face of the record of Civil Appeal No.32 of 1953 and the judgment in this appeal dated 23-1-1954 given by my learned predecessor deserves to be reviewed. The contention of the petitioner is that inasmuch as none of the points for determination mentioned in the grounds of appeal were dealt with and decided in the judgment, an application for review is maintainable. Next, it has been contended that the most vital and relevant matter has now been discovered after the decision of this appeal and it is that the opposite parties actually failed to deliver the exact goods under agreement for sale as they had no such stock in their account at all. Lastly it has been contended that having regard to the onus of proof and the line of approach for determination of rights and liabilities of the parties in consequence of transactions in controversy, the matter needs reconsideration by this Court in the interest of justice.

2. The application has been opposed by the opposite parties and it has been contended that this Court is not legally competent to accept new private documents as the appeal in this Court has already been decided and the appeal was naturally to be decided on the materials which had been placed by the parties in the case at the trial stage. According to the opposite parties the matter under controversy was fully thrashed out and it was decided by this Court after giving the parties full hearing and it was not necessary for this Court to give detailed discussions on each and every ground of appeal mentioned in the memorandum of appeal when such grounds were not pressed.

3. I have heard the learned counsel of the parties at length and I find that the petitioner wants that some private documents be admitted on the record long after the appeal was decided by this Court. The appeal No.32 of 1953 was decided by this Court on 23-1-1954 and the present application for review was filed on 27-5-1954. The question is whether this Court can accept additional evidence at this stage and whether private documents of doubtful character can be allowed to be brought on the record. There is no doubt that the Code of Civil Procedure permits application for review on the ground of discovery of new and important evidence but it exacts very strict condition as to prevent litigants lying on their oars when they ought to be looking for evidence. It enjoins the Judge who requires the facts as to the absence of the negligence to be strictly proved and it makes the Judge who tried the case final, on such applications. Where such applications for review were refused by the original Court, but the Court of appeal upon a special and preliminary application and before hearing the appeal on the merits made an order for the admission of "further evidence" it was held that appellate Courts order was without jurisdiction: vide - Kessowji Issur v. G.I.P. Rly Co., 11 Cal WN 721 (A).

4. In - Pyarelal v. Chotalal, AIR 1942 All 82 (B) it has been laid down that the application under O.47, R.1, Civil P.C., must be treated with considerable measure of caution. That is a matter of public policy as it is obviously necessary that, save in exceptional circumstances, finality in litigation should be achieved at some point. The person who wants a review should at least prove strictly the diligence he claims to have exercised and also that the matter or evidence which he wishes to have access to is, if not absolutely conclusive, at any rate, nearly conclusive of the matter. It is not the proper function of a review application merely to supplement evidence or to make it serve the purpose merely of introducing evidence which might possibly have had some effect on the result. Order 47, R.1 requires a high standard of diligence.

5. In the present case the petitioner has tried to produce some extra