1. This is an application in revision against the order of the District Judge holding that the petitioner's application to review his judgment was not competent.
2. It is argued for the petitioner that the appeal having been withdrawn before the application for review came on for hearing, the withdrawal of the appeal was tantamount to a non-preferring of the appeal on the consistent decisions of this Court in Pandu v. Devji ILR (1883) 7 Bom. 287, Ramappa v. Bharma ILR (1906) 30 Bom. 625, 8 Bom. L.R. 842, and the view of the Allahabad High Court in Ram Prasad v. Asa Ram ILR (1920) All. 288. It is argued for the opponents that on the date when the review application was filed the second appeal was pending and had not been withdrawn, and therefore under Order XLVII, Rule 1, Civil Procedure Code, the review application was not competent and was rightly dismissed by the District Court.
3. Apart from the slight alteration in the Code of Civil Procedure by the words 'No appeal has been preferred', the difficulty is occasioned by the hardship of the present rule in cases where fresh evidence is discovered after an appeal has been filed; and it was to meet this difficulty that this Court, from Nanabhai Vallabhdas v. Nathabhai Haribhai (1872) 9 B.H.C.K. 89 to Pandu v. Devji, has held that in such cases the appellant might be allowed to withdraw his appeal if he wished to prosecute his application for review. At the same time it was pointed out by Sargent C.J. in Pandu v. Devji at page 288 that:--
The intention of the law Booms merely to be to prevent a party, against whom judgment has been passed, from availing himself of two remedies at one and the same time, and applying for a review while his appeal is pending.
4. In the present case, on. the facts as admitted by the petitioner, his fresh evidence was discovered before he filed either the second appeal in this Court or an application for review in the District Court; and it was, therefore, open to him to comply with the law by filing his application for review first and then his second appeal, in which case, the mere filing of the second appeal subsequently would not cause his application for review to fail: Chenna Reddi v. Peddaobi Reddi ILR (1908) Mad. 416 Pyari Mohan Kundu v. Kalu Khan ILR (1917) Cal. 1011, and Narayan Purshottam v. Laxmibai ILR (1914) 38 Bom. 416, 16 Bom. L.R.. 189. Even in Ram Prasad v. Asa Ram ILR (1920) All. 288, it is to be noted, unlike the present case, that the fresh evidence was discovered after the filing of the appeal. The question of the jurisdiction of a Court depends on the state of facts when the application was made, not on what occurs subsequently. On the date when the present application for review was made, the appeal had not been withdrawn, and therefore both on the words of the section and on the decided cases the application for review was not competent. To allow the contention for the petitioner and to hold that his subsequent withdrawal of the appeal after the filing of the review application places him in the same position as though he had complied with the law as he actually could have done, is, in our opinion, to go beyond the decided cases, and, to all intents and purposes, to nullify the law as laid down in Order XLVII, Rule 1, Civil Procedure Code. The remarks of Jenkins C.J. in Ramappa v. Bharma ILR (1908) 30 Bom. 625, 8 Bom. L.R. 842 are relied upon. Because an appeal is allowed to be withdrawn in order to enable the appellant to prosecute his application for review, it would be carrying the fiction too far to countenance the violation of the express terms of the order with which, in the present case, the petitioner could easily have complied; and we should in fact have to hold that the application was not competent on the date it was made but that it became subsequently competent by reason of the withdrawal afterwards. We see no reason to extend the decisions to the extent to which we are invited for the petitioner, for, as we have already observed, on the present facts he could easily have complied with the provisions of the law by the simple process of filing an application for review first and his appeal subsequently. If he has not chosen to do so, there appears no reason why the Court should countenance such a violation by extending the fiction to the extent sought.
5. For these reasons, I agree, on the whole, that the decision of the District Court was correct and that the application for review was not competent when it was filed, and was therefore rightly dismissed.
6. The rule is discharged with costs on the petitioner.
7. The petitioner, an unsuccessful plaintiff, filed an appeal to the District Court, Ratnagiri, and failed. Ho then preferred a second appeal to this Court, and, while it was pending, filed in the District Court an application for review, on the plea that he had discovered fresh evidence. After making the application he withdrew his second appeal and the question is whether the District Court had jurisdiction to accept the review application.
8. An application for review of an appealable decree is allowed if and only if no appeal has been preferred. But, in this case, it has been contended, on the authority of Ramappa v. Bharma ILR (1906) 30 Bom. 625 : 8 Bom. L.R. 842 and Ram Prasad v. Asa Ram ILR (1930) All. 288 that since the second appeal was withdrawn we are entitled to assume that it was never preferred, The Bombay case was, however, on different facts. An appeal was preferred and summarily dismissed, and subsequently an application was made for review. This application was rejected, and though Sir Lawrence Jenkins C.J. accepted 'the process of reasoning which has now become part of the established practice', he was unable to go further and say that no appeal had been preferred when the Court had actually dismissed one. The practice referred to was one established by a line of cases ending with Pandu v. Devji ILR (1883) 7 Bom. 287 in which Sargent C.J. held that (page 288):--
If the Full. Bench in Nanabhai v. Nathabhai (1872) 9 B.H.C.R. 89 was justified in holding that the effect of allowing a special appellant to withdraw his second appeal was to treat it as having never been admitted, it is not going further to say that by the same process an appeal may be treated as having never been preferred.
9. The rule, then, is that if a litigant, who has filed an appeal, wishes to apply for a review, ho may do so if he first withdraws his appeal. Thus when there is no appeal on record he is entitled to the benefit of a fiction that none has been preferred. But that fiction is not available to the present applicant since it conflicts with the fact that an appeal was actually on record. He has to rely on an extension of the rule which was approved by the Allahabad High Court in Ram Prasad v. Asa Ram ILR (1920) All. 288. According to the Bombay rule a litigant who has appealed is entitled to say in that he has not preferred an appeal if he has already withdrawn it before applying for a review. The Allahabad rule is that he is entitled to say the same if he intends to withdraw it and actually does so. But practically this means that a Court in deciding a question of jurisdiction will be deciding it on the facts as they exist at the date of the hearing and not on the facts existing at the date of the application. This seems to me to violate the fundamental rule that jurisdiction depends on the circumstances obtaining at the time when a Court is asked to act.
10. If this view is correct, I must respectfully differ from the Allahabad decision. I do not think that the rule of practice of our Court should be further extended, and I would reject this application.