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Naminath Vs. Govind Rao - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKarnataka High Court
Decided On
Case NumberCivil Petn. (H) No. 52 of 1956
Judge
Reported inAIR1960Kant214; AIR1960Mys214
ActsHyderabad Money Lenders' Act - 1358; Code of Civil Procedure (CPC), 1908 - Order 47, Rule 1
AppellantNaminath
RespondentGovind Rao
Excerpt:
.....stitching allowance, washing allowance, the award is modified. - the point that arises in this review application is, whether the provisions of order 47 rule 1 of the code of civil procedure have been satisfied by the petitioner. so far he satisfied the conditions laid down in order 47 rule 1 c. ' even accepting this contention, the important matter to be considered is whether the other provisions of order 47 rule 1 of the code of civil procedure have been satisfied. i find from the records that even in the trial court a specific issue like issue no. ' the license that was produced by the plaintiff was for the year 1952. the trial court held that the plaintiff his failed to produce the license for the year 1953 or a license for the year 1358f when the suit transaction took place. the..........court on 21-11-1955. he has, therefore, prayed for a review of the said judgment.(2) no doubt the review application was held before the hyderabad high court but due to the integration of states, the petition has been transferred to this court for decision after ordering notice to the respondent. the point that arises in this review application is, whether the provisions of order 47 rule 1 of the code of civil procedure have been satisfied by the petitioner. the relevant provisions are as follows :'any person considering himself aggrieved......''after reciting clauses (a), (b) and (c), the section runs as follows: 'and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence by him at the time when the decree was passed or order made or.....
Judgment:
ORDER

(1) This is a review application filed by the plaintiff in the original suit (the present petitioner) praying that the judgment passed in Appeal No. 75/2 of 1954-55 on the file of the High Court of Judicature at Hyderabad be reviewed as per the provisions of Order 47 Rule 1 of the Code of Civil Procedure. The ground for review is that the plaintiff-petitioner had obtained a license under the Hyderabad Money Lenders' Act for the year 1358F. i.e., at the time of the suit transaction which took place on the 17th Meher 1358F. But when his appeal came up for decision before the Hyderabad High Court, his Advocate under a mistaken impression represented that the plaintiff-petitioner had no license at the time of the suit transaction.

Hence an adverse order was passed against his claim by the Hyderabad High Court. He alleges that in fact he had a license at the relevant period, but the fact of the existence of the said license had escaped his mind. It was found only on 20-12-1955 after the passing of the judgment by the Hyderabad High Court on 21-11-1955. He has, therefore, prayed for a review of the said judgment.

(2) No doubt the review application was held before the Hyderabad High Court but due to the integration of States, the petition has been transferred to this Court for decision after ordering notice to the respondent. The point that arises in this review application is, whether the provisions of Order 47 Rule 1 of the Code of Civil Procedure have been satisfied by the petitioner. The relevant provisions are as follows :

'Any person considering himself aggrieved......''after reciting clauses (a), (b) and (c), the section runs as follows: 'and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence by him at the time when the decree was passed or order made or on account of some mistake or order made or on account of some mistake or error apparent on the facts of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order.'

The petitioner has made an application to the Court that passed the final decree in appeal. So far he satisfied the conditions laid down in Order 47 Rule 1 C. P. C., but it remains to be seen whether he satisfies the other conditions laid down in the said Section.

(3) It is strenuously contended by Mr. Murlidhara Rao, the learned Advocate for the petitioner that the fact of the possession of the license was not within the knowledge of the petitioner. It is only later that he came to know about it and as soon as he came to know about it, he made a search, found it and produced it before the Court. The admission, therefore, made by the Advocate for the petitioner before the Hyderabad High Court at the time of the hearing of the appeal is made on an erroneous impression and therefore, should not bind his client. He relies on the decision reported in AIR 1937 Bom 81, Motilal Chimanram v. Sarupchand Prithirai, where it is held as follow:

'Where an admission by a pleader is purely of fact, it is not binding on the client if it is made under misapprehension.'

Even accepting this contention, the important matter to be considered is whether the other provisions of Order 47 Rule 1 of the Code of Civil Procedure have been satisfied. Has the petitioner proved diligence and has he further proved that even alter a through search it was not possible for him to produce this document at as earlier stage of the litigation? I find from the records that even in the trial Court a specific issue like issue No. 4 was raised to the following effect:

'Whether the license produced by the plaintiff is sufficient to entitle him to obtain a decree?'

The license that was produced by the plaintiff was for the year 1952. The trial Court held that the plaintiff his failed to produce the license for the year 1953 or a license for the year 1358F when the suit transaction took place. Even at the time of the appeal before the Appellate Courts, the plaintiff-petitioner has not produced the relevant license. In fact the allegation in the affidavit filed by him does not explain the delay as to the production of the relevant license. The affidavit is as short and is as laconic as it possibly could be. All that it states is as follows:

'The license for the year of 1358 Fasli was obtained by me, but unfortunately it was misplaced and could not be found at the time of the institution of the suit and till the disposal of the appeal. The fact of the existence of the said licence escaped my mind. The said licence was found on 20-12-1955. Therefore, it could not be filed either in the trial Court or in this Hon'ble Court before the disposal of the respondent's appeal.'

This shows that it was in the mind of the petitioner that the requisite license and requisite license alone had to be produced in order to succeed in his claim. But the reasons for its non-production are not those that can bring his case within the purview of O. 47 R. 1 C. P. C. The petitioner has not stated the circumstances under which he lost sight of the existence of this license or what steps but in spite of that he failed in his attempts.

He has not given any sufficient reason to show that this licensee could not be produced either at the time when he filed the suit or later at the time of the first and the second appeals. Lack of diligence and the delay on his part disentitle him to seek relief at the hands of the Court. In this view I am supposed by a few decisions. In the decision reported in AIR 1924 Pat 809, Rameshwardhari Singh v. Sadho Saran Singh, it is laid down as follows:

'The words 'or could not be produced by him at the time' must refer to the words which precede namely, 'was not within his knowledge.' The whole clause must mean that the new important matters for review were not within the knowledge and therefore could not be produced by him at the time of the decree when the decree was passed or the order made.'

In the decision reported in Subhan Singh v. Rukma Bai, AIR 1935 Mad 768 it is held as follows:

'The whole clause must mean that the new and important matters which are alleged by the application for review were not within his knowledge and therefore could not be produced by him at time of the decree sought to be reviewed. Hence a Court has no power to pass such an order without calling for strict proof, that the new matter was not within the knowledge of the applicants when the decree was passed.

I emphasise the words 'Strict proof'. The affidavit before the Court is laconic in materials explaining the failure of the petitioner in placing this license before the Court at the earliest stage. The decision reported in Pyare Lal v. Chhotey Lal, AIR 1942 All 82, emphasises the finality of the litigation at some stage or the other. It is held in that decision as follows: 'Applications under O. 47 R. 1 must be treated with a considerable measure of caution. That is a matter of public policy as it is obviously necessary that, save in exceptional circumstances, finality in litigation should be achieved at some point. The person who wants a review should at least prove strictly the diligence he claims to have exercised and also that the matter or evidence which he wishes to have access to is, if not absolutely conclusive, at any rate, nearly conclusive of the matter. It is not the proper function of a review application merely to supplement evidence or to make it serve the purpose merely of introducing evidence which might possibly have had some effect on the result. Order 47 Rule 1 requires a high standard of diligence'.

With respect I entirely agree. Order 47 Rule 1 of the Code of Civil Procedure requires a high degree of diligence on the part of the petitioner and also that there should be finality at some stage or the other in the long process of litigation.

(4) It is, however, contended by Mr. Murlidhara Rao, the learned Advocate for the petitioner that the petitioner has produced a license but for the year 1952 under the wrong impression that all that he had to produce was a license as per the law that prevailed at the time of the Full Bench decision reported in Shamshir Ali v. Ratnaji, AIR 1952 Hyd 58. This decision has been over-ruled by a subsequent Full Bench consisting of 5 Judges reported in Mohd. Bin Salem v. Unaji (S) AIR 1955 Hyd 113.

It is not necessary for me to go into the details regarding the distinctions that are made between the earlier Full Bench case and the later Full Bench case. Enough, if I state that the contention of Mr. Murlidhara Rao has no basis in view of the definite allegation made in the affidavit of the petitioner that he would have produced the license for the year, 1358F, but unfortunately it was misplaced. That shows that he was aware, that the license that had to be produced was not any and every license much less the license for the year 1952 but the relevant license viz. the license for the year of the suit transaction.

(5) One further word before I close this judgment. I find from the Judge's notes on this review application that time was given for producing the affidavit of the petitioner's counsel by his Lordship Justice Ahamed Ali Khan before whom this review application came up for consideration on 22-8-1958 to explain the circumstances under which he made the statement. But I find that no such affidavit of the counsel who was formerly appearing for the petitioner has been produced before this Court till now.

(6) Taking into consideration all the aspects of the case, I come to the conclusion that this review petition is to be dismissed and it is so ordered.

(7) As regards costs, as a point of law has also arisen in this case, I order that each party should bear his own costs of this Court.

(8) Review petition dismissed.


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