1. This appeal arises out of an order granting an application for review of judgement. The facts of the case are as follows: One Mathura Prasad, the respondent before us, executed a promissory note in favour of one Shiam Behari. The latter died and his widow Musammat Pallia, the appellant before us, sued to recover the debt. One of the pleas taken in defence was that at the time when the money was lent, or said to have been lent, Shiam Behari was a minor and therefore the transaction was void. The court of first instance dismissed the suit. The court of appeal, on the 18th of June, 1914, decreed the suit. Shortly afterwards the defendant Mathura Prasad applied to the court for review of Judgment on the ground of discovery of new and important evidence which he was unable to produce before the court at the hearing of the case. That evidence apparently was a patra. The court rejected the application on the 14th of November, 1914. On the 25th of April, 1915, Mathura Prasad put in a second application for review of the Judgment of the 18th of June, 1914, on the ground that he had discovered some fresh evidence, namely, an application by the grandfather of Shiam Behari to be appointed guardian of Shiam Behari and a certificate of guardianship granted by the District Judge which went to show that Shiam Behari was a minor at the date of the transaction. Musammat Pallia objected that no second application for review could under the law be made; secondly, that the application was out of time and that sufficient cause had not been shown and, thirdly, that the evidence was inadmissible and could not be considered. The court below decided in favour of the applicant, Mathura Prasad, and granted the application. Musammat Pallia has come here on appeal and the same three points are raised before us. In regard to the first point that no second application for review could be entertained by the court below, I find it unnecessary, in the view I have taken of the merits, to decide this point. But I may say that I should find it difficult to come to any other decision than that which was arrived at in the case of Gobinda Ram Mondal v. Bhola Nath Bhatta (1888) I.L.R. 15 Calc. 432. It is clear to me that the application for review ought to have been rejected by the court below. I have examined the evidence produced by the applicant in the court below. He examined himself and one Ram Sahai to show to the court the manner in which he discovered the present evidence. The statement of these two persons is simply to this effect that Mathura Prasad went to Ram Sahai to borrow from him some money to pay the decree, whereupon Ram Sahai pointed out to him that no decree ought to have been passed as Shiam Behari was a minor and his grandfather Saya Mal had actually been appointed guardian by the District Judge. Thereupon Mathura Prasad made inquiries through a pleader and discovered the statement to be correct, whereupon he made the second application for review. Now Ram Sahai is related to Mathura Prasad. At the hearing of the original suit one Brij Lal was a witness on behalf of Mathura Prasad. The latter has admitted that Brij Lal and he were partners in a business and also that Brij Lal and Shiam Behari, the alleged minor, were relations and co-sharers in the same property. Mathura Prasad has not attempted in his evidence to show that he made any attempt or exercised any diligence whatsoever in seeking for the evidence which he has now produced to establish the minority of Shiam Behari. The Judge in the court below seems to have been satisfied by holding that Mathura Prasad had no previous knowledge, of the evidence. Of course it is highly probable that he had no such knowledge'; but Order XLVII, Rule 1, distinctly lays down that any person considering himself aggrieved by a decree or order and who from discovery or new and important matter or evidence which after the exercise of due diligence was not with in his knowledge or could not be produced by him at the time when the decree was passed, may apply for a review of Judgment to the court which passed the decree or order The circumstances of the case seem to me to be such that if Mathura Prasad had exercised any diligence whatsoever the evidence which he now wishes to tender could easily have been discovered by him. The parties reside in Bareilly and are greatly concerned with each other. The court of the District Judge is within a mile of Mathura Prasad's residence, and I find it impossible to hold that Mathura Prasad exercised due diligence in the matter. The third point raised relates to the admissibility of the evidence which Mathura Prasad has given. In the circumstances of the case it is unnecessary to enter into the question or decide it. The result is that I would allow this appeal and set aside the order of the court below with costs here and in the court below.
2. I agree. I think the learned Judge unfortunately ignored the important words in the clause with which he was dealing and under which the application for review was made to him, namely, 'after the exercise of due diligence.' Now those words are put there for excellent reasons. The party who fails to get necessary evidence for the original trial and therefore fails in his suit is given certain privileges, and an opportunity to get his case re-heard. He is not entitled to ask for those privileges unless he satisfies certain clear statutory requirements. One of those requirements, injustice to the other party, is that he must have exercised due diligence in the preparation of his case. Now the question whether he has exercised due diligence or not involves two inquiries. Toe first is as to what he might have done, and the second is as to what he has in fact done. As my learned brother has pointed out, this was a question merely of the discovery of a certificate of guardianship in the city of Bareilly where the applicant resided. He had ten months to make the discovery, Unfortunately in the Judgment before us the learned Judge does not appear to have directed himself either to the question of what he might have done, or to the question of what he did, and in quoting the rule under which he was exercising his jurisdiction, he left out that important requirement. His order cannot be supported.
3. I agree with my learned brother's view as regards the Calcutta decision.... I think that in cases where no question of principle, but only a question of practice or procedure arises, it is well to follow the decisions of the High Courts in other provinces as far as possible and having regard to the fact that the decision of the Calcutta Bench was passed as long as thirty-three years ago, speaking for myself, I should prefer to follow and adopt that ruling.
4. The appeal is allowed and the order of the court below is set aside with costs in both courts.