(COURT OF APPEAL)·

AMIN AHMED AMIN vs. YASSIN AHMED HUSSEIN

AC-Revision-37-58

Summary Revision

Principles

·   Civil Court- Practice and procedure-Admission of fresh evidence justice Ordinance . Ist Schedule . Order XI, Rule 21

Order XI, Rule 21, of the First Schedule to the Civil Justice Ordinance[2]does not allow the Court of Appeal to admit fresh evidence even where it is evidence of new matter discovered after the lower court pronounced judgment.

Judgment

5th April 1958. M.A Abu Rannat C.J. :

 I have carefully gone through the record and the ground of Appeal submitted by applicant.

The applicant admits that he signed a promissory note for  £S.1500 on 28th November 1955 and that the date of maturity of that promissory note was 28th January 1956. Applicant alleges that it was part of the agreement that a certain Ismat should countersign the promissory note as a guarantor. He contends that the omission by plaintiff to have the promissory note signed by Ismat amounted to fraud, and that he was not liable to pay the whole value of the promissory note. He also alleges that the promissory note was bad for lack of consideration. He is applying to this Court to order retrial of the case as he has found new witnesses and fresh evidence which might influence the Court to change its mind.

 In paragraph 4 of his application , the applicant states that there was an agreement between him andIsmat on the one part and the Plaintiff on the other part that the Plaintiff was to draw building materials of tow houses and that the value of such material was assessed at £S.1500 which it was agreed to be equally shared between him and Ismat. He further admits that he signed the promissory note on this understanding.

Assuming that this statement is correct, the Plaintiff is entitled to sue him alone for the £S.1500 even ifIsmat countersigned the promissory note as a guarantor. The Plaintiff can elect to sue him alone or jointly withIsmat. In such a case as this there can be no fraud.

The Court of Appeal can not order production of additional evidence unless the Court below had refused to admit evidence which ought to have been admitted, or the Court of Appeal itself requieres any document to be produced or a witness to be examined in order to enable it to pronounce judgment or for any other substantial cause. (Rule 21. Order XI, of the C.J.O) Under this rule, the Court of Appeal has no power to admit additional evidence, not even if the evidence offered be the evidence of new matter discovered after the Court of first instance had pronounced its judgment.

In this case, I am unable to find that any additional evidence such as is suggested by the applicant would change his situation. The evidence recorded by the District Judge is not inherently defective. The applicant has seenAbdel Gader Abdel Monim and also wrote a letter to Plaintiff asking for delay of payment. He never disputed the claim after the date of maturity.

I have also asked for a second opinion from El Nur J. who examined the record and gave the opinion that the application for revision is hopeless.

The application is therefore summarily dismissed.

                                                (Application dismissed)