Discovery Of New Evidence In Review Petition Can Justify Reopening Second Appeal: Gauhati High Court

The Gauhati High Court has held that discovery of new and important evidence, which was not earlier available despite due diligence, can justify review of a judgment and reopening of a second appeal.

Justice Mridul Kumar Kalita restored a second appeal in an adoption dispute after finding that a newly traced primary school admission register, showing the age of the adopted son at the time of admission, could have a direct bearing on the validity of the adoption and the correctness of the earlier judgment.

The bench observed, “the documents sought to be introduced by the review petitioner, namely, the original school admission register of the Titabor Town Government Junior Basic School, Jorhat, i.e., the primary school where the original review petitioner had his primary education,is an important piece of evidence which may throw light on the age of the original review petitioner on the date of his adoption by late Meghraj Modi.”

Justice Kalita further stated, “merely because the age gap between some of the students, who are stated to be siblings, and whose names appears in the original school admission register of the Titabor Town Government Junior Basic School, Jorhat, appears to be unusually less, no conclusion as to the veracity or genuineness of the said documents can be arrived at this stage, in the absence of the documents being brought on record and subjected to cross-examination.”

The original plaintiff, Bajranglal Modi, had instituted a title suit seeking declaration, eviction and recovery of khas possession over a plot of land at Titabor Town. He claimed to be the adopted son of late Meghraj Modi and asserted inheritance rights over the property. The defendants contested the suit mainly on the ground that the adoption was void, contending that Bajranglal Modi was 17 years old on the date of adoption, which exceeded the permissible age limit under the Hindu Adoptions and Maintenance Act, 1956.

The Trial Court decreed the suit after holding that the plaintiff had not completed 15 years of age on the date of adoption. The First Appellate Court affirmed the findings. However, the High Court had earlier allowed the second appeal by holding that the age of the plaintiff prior to 1971 had not been properly established and by placing reliance on the age mentioned in the adoption deed itself.

Seeking review of that judgment, the review petitioners contended that the admission register and transfer certificate of Titabor Town Government Junior Basic School, which could not be produced earlier as the records were untraceable at the relevant time, had subsequently been located and directly established the age of Bajranglal Modi at the time of admission in school.

The respondents opposed the review by arguing that there was lack of due diligence and that the admission register contained discrepancies regarding age gaps between siblings recorded therein.

Dealing with the objection regarding due diligence, the Court noted, “the question as to whether there was due diligence on the part of the review petitioner or not has already been decided by the Apex Court and, in the considered opinion of this Court, the said question is not open for reconsideration by this court.”

The Court further held, “the discovery of new and important matter, that is, the original school admission register of the primary school where the review petitioner did his primary schooling is a valid ground for review of the judgment passed in RSA No. 73/2013.”

Accordingly, the Court allowed the review petition, and restored the second appeal for reconsideration.

Case Name: On The Death Of Bajranglal Modi His Legal Heir Smt. Prem Lota Modi & Anr. v. Sri Raj Kumar Modi & Ors.

Case Number: Review Petition No. 97/2018 (arising out of RSA No. 73/2013)

Click here to read the judgment