A had filed a suit against B for trespass on A's property. However, A fails to prove trespass. In appeal, A takes the leave of the court to produce an eyewitness, A's guard, who is willing to appear before the appellate court. A had tried to make the guard an eyewitness before the lower court as well. However, the guard had left the country at that time, and despite several summons being issued, had failed to appear before the lower court.

All India Bar Examination (AIBE) 2-II Previous Year Question Papers with Answers

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14.

A had filed a suit against B for trespass on A's property. However, A fails to prove trespass. In appeal, A takes the leave of the court to produce an eyewitness, A's guard, who is willing to appear before the appellate court. A had tried to make the guard an eyewitness before the lower court as well. However, the guard had left the country at that time, and despite several summons being issued, had failed to appear before the lower court.

Principle :

Under ordinary circumstances, evidence that has not been presented before a lower court cannot be presented in appeal. However, if the party seeking to produce additional evidence establishes that despite the exercise of due diligence, such evidence could not be produced by him at the time when the decree appealed against was passed, the Appellate Court may allow such evidence to be produced in the court.

A: The court of appeal may not allow the guard to be produced as an eyewitness.

B: The court of appeal may ask the lower court to re-appreciate the evidence and pass a fresh decree.

C: The court of appeal may allow the guard to be produced as an eyewitness.

D: The court of appeal may allow the guard to be produced as an eyewitness, but the guard's statement cannot be taken on record.

E: The court of appeal will allow the guard to be produced as an eyewitness only if the respondent consents to having the guard produced as an eyewitness.

The answer is: C

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Explanation

The most correct option in this situation is:

C: The court of appeal may allow the guard to be produced as an eyewitness.

Explanation:

The principle stated in the question is accurate and relates to the admission of additional evidence on appeal. It states that under ordinary circumstances, evidence that has not been presented before a lower court cannot be presented in appeal. However, if the party seeking to produce additional evidence establishes that despite the exercise of due diligence, such evidence could not be produced by them at the time when the decree appealed against was passed, the Appellate Court may allow such evidence to be produced in the court.

In this case, A had tried to make the guard an eyewitness before the lower court, but the guard had left the country and could not appear despite several summons. Given that A has established that they could not produce this evidence at the lower court due to circumstances beyond their control (the guard being out of the country), the court of appeal may allow the guard to be produced as an eyewitness in the appeal.

Options A, B, D, and E do not align with this legal principle and would not be correct in this context.