1. This matter comes before us as an outcome of a rule which was issued so long ago as 8th May 1936, where, by it was ordered that the plaintiff-respondent do on Friday, 29th May at 11 O'clock in the forenoon, show cause before this Court why the application of the defendant-appellant for review of the judgment and decree passed by the Appeal Court on 30th July 1934 should not be granted and why the said appeal should not be set down in the list of appeals for re-hearing and why additional evidence of witnesses as this Court may deem fit and proper should not be called at the time of such re-hearing and why the plaintiff-respondent should not pay to the defendant-appellant his costs of and incidental to this application. It was further ordered that until the hearing of the rule or until further orders of the Court the sale of the properties belonging to the defendant which had been attached should be stayed and the Registrar of this Court would communicate the order to the District Judge of Howrah in which Court the proceedings had been instituted in execution of the decree in the suit.
2. It is to be observed at the outset that the rule was made returnable on 29th May 1936. Apparently, very little, if anything was done to bring the matter on for hearing and with regard to that both sides are obviously in fault. This Court was actually in session on a number of days in the months of April and May of last year and it was but proper and convenient that an application should have been made to us to fix a date for the hearing of the rule. The attitude of the defendant-appellant, who is applicant in these proceedings, can easily be understood, because he had succeeded in getting a stay from this Court which, by some oversight, was not limited to the period up to the returnable date, but was in the nature of an open stay, which prevented the sale of the attached properties for an indefinite period. It is not so easy to see, on the other hand, why the plaintiff-appellant, who is the respondent in these proceedings, should not have taken steps to have the rule discharged for want of prosecution. However the rule has at long last come before us for our final adjudication upon the matter.
3. The defendant who, as I have indicated, was the appellant in the appeal which came on for hearing before us and in which we ultimately gave judgment on 30th July 1934, now says that he is in a position to produce further evidence of such a character that it is bound to have an important, if not indeed a decisive, influence upon the questions which were in dispute between the parties in the suit. The suit was brought upon a promissory note which was said to be dated 30th June 1927. The defence set up was that that particular promissory note was a forgery, although the defendant had given three promissory notes to the plaintiff on three several occasions prior to 30th June 1927. An important piece of evidence called at the trial on behalf of the defendant was to the effect that he was away, in Benares or in that district, on the date the promissory note which was being sued upon is said to have been executed. That evidence was not accepted by Ameer Ali J. who tried the suit and we could find no sufficient reason to disagree with the learned Judge on that point when the matter was argued before us in the appeal. The defendant-appellant has now put in an affidavit Sworn by one Bhujendra Nath Sen on 27th May 1936. This affidavit was not before the Court at the time when the rule was issued on 8th May 1936; but in the petition which was put in before us, upon the basis of which the rule was issued there was in one or two paragraphs an indication of the kind of evidence which, it was alleged, Bhujendra Nath Sen would be able to give on behalf of the defendant if an opportunity of so doing was given him. The affidavit of Bhu-jehdra states that he was a typist in; the office of Messrs. O.C. Ganguli & Co., Solicitors of 6, Old Post Office Street in the town of Calcutta, who were the solicitors for the plaintiff in the suit, Kristo Dhone Majumdar v. Kunja Behary Chakrabarti, and in whose office the promissory note is said to have been executed.
4. The gist of what Bhujendra states in his affidavit is that he himself under pressure from, Kristo Dhone was induced to put typed-writing on two blank pieces of paper which at the time when he first saw them, that is to say when they were first handed over to him by Kristo Dhone, already bore a signature which was apparently that of the man who was afterwards the defendant in the suit namely Kunja Behary Chakrabarti. Bhujendra narrates that, although he had considerable misgivings as to whether or not he ought to do what he was requested to do by Kristo Dhone, he was ultimately induced to transform one of the pieces of paper into the semblance of a promissory note by typing upon it appropriate words, phrases and figures and to transform the other piece of paper into the form of a letter written by Kunja in which payment of the sum afterwards sued upon was expressly or by implication admitted. It appears that Bhujendra was himself under financial obligation to Kristo Dhone and it was for that reason, so he says, that he ultimately yielded to the persuasion or pressure put upon him by Kristo Dhone. If Bhujendra had no antecedent history in Connexion with this case or there were no other circumstances which would give grounds for supposing that he was not a truthful person, I think we would perhaps have had but little difficulty in coming to the conclusion that the defendant-appellant; ought to be afforded the opportunity which he seeks. But, unfortunately for the defendant, his proposed additional witness is not a man whose affidavit comes before this Court as a document upon which no suspicion can rest. Bhujendra is, in fact, introduced to the Court as a person who is, to all intents and purposes, a self-convicted perjurer, because we find on reference to the record of the case on turning to the paper-book which was before us in the appeal (at p. 266) that there in a copy of an affidavit made jointly by Kristo Dhone, the plaintiff in the suit, and his co-employee in the office of Messrs. O.C, Ganguly & Co., namely Bhujendra Nath Sen. That affidavit was solemnly affirmed by those two persons on 7th July 1931 and in para. 15 of that affidavit Bhujendra states as follows:
I, Bhujendra Nath Sen, for myself say that my co-deponent was absent from office owing to a severe attack of small-pox from 20th May 1930 to 2nd September 1930, and on 13th June 1930, my co-deponent sent his agent. Deb Narain Ohaudhuri to Messrs. O.C. Ganguli & Co's office and he made over to Babu O.C. Ganguli the original promissory note dated 30th June 1927, duly executed and stamped by the defendant together with original letters and documents in connexion with the instructions to file a suit against the defendant above named for moneys due on the said promissory note dated 30th June 1927 and the said Babu O.C. Ganguli immediately made, over to, me the, said original papers to make out copies of the same and I accordingly made typed copies of the same.
5. Now, it is manifest beyond all question that if the statements now put forward in Bhujendra's affidavit of 27th May 1936 are true, then the statements contained in the paragraph which I have just read from the affidavit of 7th July 1931, to the effect that the original promissory note dated 30th June 1927 was duly executed and stamped by the defendant is entirely false and quite clearly false to the knowledge of the man who was making it, namely Bhujendra Nath Sen. It follows therefore that Bhujendra was not a witness of unimpeachable veracity, to say the least of it, and the moment one arrives at that conclusion one is bound to deal with this matter in the light of the authorities relevant to a proceeding of this kind and proceedings of a like character. We have been referred to by Mr. Banerjee appearing on behalf of the plaintiff, who is the respondent in the appeal and is now the respondent in the present application, to a dictum of Lord Loreburn sitting as Lord Chancellor in the House of Lords and giving his speech in Brown v. Dean (1910) A.C. 373 at pp. 374; 376, where his Lordship said:
When a litigant has obtained a judgment in a Court of Justice, he is by law entitled not to be-deprived of that judgment without very solid grounds; and where, as in this case, the ground, is the alleged discovery of new evidence, it must at least be such as is presumably to be believed, and if believed would be conclusive.
6. Lord Shaw on the same occasion said:
Speaking for myself, I do not at present see my way to go the whole length of the proposition, my noble and learned friend the Lord Chancellor has proposed, to the effect that the res noviter veniens must, if believed, be conclusive.
7. Lord Shaw proceeded to say:
It is possible to figure cases in which it might be so gravely material and so cleanly relevant as to entitle the Court to say that that material and relevant fact should have been before the jury in giving its decision.
8. He added:
I do not dissent from the judgment as, pronounced, but I desire to express, my opinion upon that, topic.
9. I find on my part, speaking of course with the greatest possible deference to the views of Lord Loreburn, that I would not be prepared to go quite as far as he thought fit, to go and I should prefer rather, to adopt, at any rate, to a large degree the broad proposition enunciated by Lord, Shaw in the same case. It is however not, necessary on the present occasion in my opinion that we should apply either of the two tests propounded by the noble and learned Lords in Brown v. Dean (1210) A.C. 373. It is quite sufficient, I think, to adopt for our present purposes the proposition laid down by Scrutton L.J. in Guest v. Ibbotson (1922) 38 T.L.R. 325 At p. 326 the learned Lord Justice says:
There could be no question that it was in the interests of the public generally that there should be an end to litigation. In order to obtain a new; trial, for the purpose of calling fresh evidence, a, litigant should show (i) that such evidence was available, and of undoubted character; (ii) that the evidence was so material that its absence! might cause a miscarriage of justice; (iii) that it could not with reasonable care and diligence have been brought forward at the time.
10. And then he added:
As regards the first point there had been nothing but a statement that two unnamed witnesses would be called; nothing: stated as to their position, standing or credibility. Such an application would not have been listened to by the Court of Appeal for a single instant.
11. As regards the second and third propositions, one need not say anything, having regard to the view we take of the evidence-proposed to be given toy, Bhujendra Nath, Sen, because it seems tome that the Clatter can be dealt with under the first of the three propositions, the second branch of which requires that the evidence should be, of undoubted character as well as being available. Having regard to the former affidavit made by Bhujendra Nath Sen, to which I have referred, it seems to me quite clear that it would not be right to say that the new evidence which is being put forward in the form of the second affidavit Of Bhujendra Nath Sen, namely that sworn on 27th May 1936, is of 'undoubted character.' In the case with which Scrutton L.J. was dealing, there is nothing to show the position, standing or credibility of the witnesses who were called to give additional evidence. Scrutton L.J. was clearly of opinion that in the absence of those things, it would not be right to act upon the evidence which was being put forward. In the present instance, the position is very much the reverse of what it was in the case to which I have just referred, because there is evidence before us as to the credibility of the proposed witness and that evidence goes to show 'that he is I not a person whose testimony can be relied upon; at any rate, it goes to show that we fought not to presume that the evidence to be given by him is true. In other words, using the language of Lord Loreburn, this evidence is not presumably to be believed.' If the defendant-appellant had found himself in a position of being able to put before us the evidence of a person who, prima facie at any rate, was a credible witness, I should certainly have considered it right to give him an opportunity of putting that evidence before the Court in a formal and effective manner and giving the other side an opportunity of testing it by cross-examination. Having regard to the fact that Bhujendra Nath Sen, on his own showing, is not a person who had had any great regard for the truth, we have come to the conclusion that this application must be rejected. The rule, accordingly, is discharged with costs as an application.
12. I agree.