Blagden, J. -
(1.)THIS is an application under Order XVIII, Rule 17, Civil Procedure Code, made in the following circumstances:
(2.)THE hearing of the suit was concluded before me about a fortnight ago and I reserved judgment. Last Thursday, as is not disputed by the plaintiff's counsel, the solicitor for defendants Nos. 1 to 5 happened to come in possession of certain information, as a result of which he made a search in the Prothonotary's office and there discovered, as Mr. Purshottam on his instructions now tells me, that the plaintiff had made in proceedings before the Prothonotary ill October, 1938, statements which appear to be completely at variance with those he made in evidence before me on several material points and' which, therefore, if they are true, destroy his case before me as far as those matters are concerned. I assume, and have no reason to do otherwise, that the solicitor concerned could not have found this matter out earlier by the exercise of reasonable diligence. It is quite unreasonable to suppose that an attorney who has against his client a litigant of, say, thirty-five years of age, must search the records of every Court in British India for the last, say, thirty-years to see whether the litigant against his client has ever made a statement in previous proceedings contradictory to a statement in the evidence he has given, or may give, in the suit which the attorney is conducting. Such a high standard of diligence would be, of course, beyond any which could be expected in a human being, and, after all, an attorney is a species of a human being, I see no reason to suppose that Mr. Desai, the solicitor, was put on his enquiry any earlier than last Thursday, and I see no reason why he should have found out what he did any earlier than lie did. Order XVIII, Rule 17, provides as follows: THE Court may at any stage of a suit recall any witness who has been examined and may (subject to the law of evidence for the time being in force) put such questions to him as the Court thinks fit. Mr. Purshottam rightly disclaimed the idea that he was entitled, as of. right, further to cross-examine the plaintiff at this stage, but he asked me to look at what the plaintiff had said in 1938 and to ask the plaintiff what he had to say about it. If I came to the conclusion that the 1938 evidence was true, I should, of course, have to come to the conclusion that the plaintiff's evidence at the trial before me was false. But \l see no particular reason why I should necessarily come to that conclusion rather than to the opposite possible conclusion. All that the evidence there must lead me to realise is that in dealing with the plaintiff I am not dealing with a perfectly honest witness, a fact of which I am already aware. One or the other of his statements must be rejected, and, possibly,, one of the Conclusions might be that his word cannot be relied on at all. It might be that the evidence in question would bring me nearer that conclusion than I already am. THEre seems to be very little authority about Order XVIII, Rule 17, and what there is is rather of a negative character, for I certainly have never heard of a Court exercising its powers under that rule after judgment has been reserved and there is, apparently, no reported instance of its so doing. It seems to me, however, that the powers given by that rule are very wide, and it seems to me desirable that they should be kept wide. It is noticeable that the wording of it is at any stage of a "suit" and not at any stage of a "hearing", and if, therefore, the Court, while considering its judgment, found that there was an ambiguity on the face of the record, or an omission which wanted clearing up, I think the Court could, in a proper case, recall a witness, who had given evidence, for that purpose. THE highest tribunal in England has more than once reserved judgment and thereafter asked for further argument, and it seems to me, that, in my own humbler sphere, I should only be doing the same thing if, in a proper case, I had a witness recalled of my own motion.
Mr. Banaji has argued that the right of the Court to act under that rule is Restricted to action of its own motion, and that neither party has a right even to invite the Court so to act. I do not see any such fetter on the powers of the party or on those of the Court, and in coming to the conclusion that a party can ask the Court to exercise that power I find a helpful analogy in Section 36 of the Presidency-towns Insolvency Act which empowers the Court to examine certain people who may have knowledge of the affairs of the insorzentt. Unlike, for example Section 439 of the Criminal Procedure Code, it does not contain any provision to the effect that the Court may so act whether on. an application made to it in this behalf or otherwise; but in fact the Court always has acted on information furnished to it either by the Official Assignee or one of the creditors or even in some cases, I dare say, by other members of the public. I think that "either the litigant can ask the Court to act under Order XVIII, Rule 17, or that the Court can do it of its own motion.
Mr. Purshottam and Mr. Banaji both called my attention to Order XLVII, Rule 1, which deals with the circumstances under which a review can be grantee on the discovery of new and important matter. Mr. Purshottam relies on this,. 'is, for he says that the law is, and ought to be, stricter where judgment 1>s. actually been delivered than where judgment is merely pending, and he says. , that even if judgment had been delivered he could have got this evidence in on an application for review under that rule. I doubt whether this evidence would be received under Order XLVII, Rule 1, because though it certainly might possibly have altered the judgment if the judgment had been given in the plaintiff's favour, in fact the decisions of the highest tribunal go, I think, rather further than that. Lord Loreburn L. C. in Brown v. Dean  A. C. 378 says of such. evidence that (p. 374) "it must at least be such as is presumably to be believed, and if believed would be conclusive". Granted that this evidence would be conclusive on certain points in the case if it were believed, I do not see why it should be "presumably to be believed". Either it or the evidence at the trial is false. The same applies to the other earlier evidence of the plaintiff to which my attention has already been drawn. Anyhow, the power, assuming that it exists, to hear this evidence at this stage under Order XVIII, Rule 17, is, clearly, discretionary as appears from the use of the word "may", not once but twice, in the course of that rule; and granted, as I think is the case, that the power exists, it is one which I think ought to be exercised With the greatest care and only in the most peculiar circumstances. There must, after all, be finality somewhere as regards the evidence to be taken into consideration by a Court, and if I were now to restore the case to the list for the purpose of hearing what the plaintiff has to say about an earlier statement which was fortuitously discovered last Thursday, there is no reason why the case should not be on my list next week for a similar purpose in. the event of more information coming to light next Thursday, and so on ad infinitum; and in all the circumstances of the particular case I do not think that I ought to re-open the matter. I particularly do not wish to restrict in any way the power of the Court in a proper case to do so, but generally speaking, it seems to me that a disturbance of this kind of the process of judicial gestation is more likely to lead to a miscarriage of justice than to further its ends.
(3.)I think the application should be dismissed, the costs to be costs is the cause. .