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Mohammad Said Khan Vs. Mangal Prasad Dube - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1934All175; 147Ind.Cas.339
AppellantMohammad Said Khan
RespondentMangal Prasad Dube
Excerpt:
- - the view expressed by a division bench of this court on practically the same materials is a strong piece of evidence in favour of the defendants......to bring his case within the scope of rule 1, order 47. the lower appellate court declined to admit fresh evidence in the appeal and rejected the application. it seems to me that if the lower appellate court itself did not require the production of this evidence judgment or for any other substantial cause it could not have admitted it. no doubt in the case of inderjit pratap sahi v. amar singh a.i.r. 1923 p.c. 128 there lordship of the privy council at p. 191 (of 50 ia) refered to order 47, rule 1 and pointed out that under that rule a party has a right to apply for a review of judgement to the court that has decided the case before an appeal has been preferred and observed:in the present case an appeal had preferred and a review, thereto, was out of the question ; and the.....
Judgment:

Sulaiman, C.J.

1. This is a plaintiff's appeal arising out of a suit for pre-emption. The claim has been dismissed on the ground that the share sold is in village Basulpur, which is a Notified Area and that no custom of pre-emption has been proved to exist in the case. In appeal the first point raised is that Rasulpur was an agricultural village and could not, therefore, become a Notified Area under Section 337, Municipalities Act (2 of 1916), But under Sub-section 3 of that very section the decision of the Local Government, that a local area is not an agricultural village is final and conclusive. Apart from this, under Section 4(6), Agra Pre-emption Act, a Notified Area merely means a local area in regard to which a Government notification has been issued. It is, therefore, not I now open to the plaintiff to urge that Rasulpur is not a Notified Area at all.

2. The second ground is that the Court below wrongly rejected certain additional evidence which was tendered before it. The Plaintiff's case was that these important pieces of evidence, of which the plaintiff had had no previous knowledge. Were newly discovered and could not have been found after the exercise of due diligence. He attempeted to bring his case within the scope of Rule 1, Order 47. The lower appellate Court declined to admit fresh evidence in the appeal and rejected the application. It seems to me that if the lower appellate Court itself did not require the production of this evidence judgment or for any other substantial cause it could not have admitted it. No doubt in the case of Inderjit Pratap Sahi v. Amar Singh A.I.R. 1923 P.C. 128 there Lordship of the Privy Council at p. 191 (of 50 IA) refered to Order 47, Rule 1 and pointed out that under that rule a party has a right to apply for a review of judgement to the Court that has decided the case before an appeal has been preferred and observed:

In the present case an appeal had preferred and a review, thereto, was out of the question ; and the defendants took the only and proper course, namely to apply to the High Court, which was in possession of the case, to admit the additional evidence either under the general principles of law or under the specific provisions of Rule 27.

3. Their Lordships admitted the fresh evidence although it had been rejected by the High Court on the ground that it had no power under Rule 27 to admit it. This case was understood in India to confer on an appellate Court jurisdiction to admit fresh evidence even if it does not require it. But the evidence should be such as has been newly discovered and could not with due diligence have been discovered bny the party offering to produce it. But Inderjit Pratap Sahai's case A.I.R. 1923 P.C. 128 was subsequently explained by therir Lordship in Parshotam Thakur v. Lal Mohar Thakur where it was laid down that the language of Rule 27 es very strict and it is only where the appellate Court requires it (find it needful) that additional evidence can be admitted. It was emphasized that whether it be a case where the evidence is required to enable the Court to pronounce judgement or for any other substaintial cause it must in either case be the Court that requires it and that this is the plain grammatical reading of the sub-clause. Their Lordships further remarked that in Inderjit Pratap Sahai's case A.I.R. 1923 P.C. 128 the question really was as to the power of the Board to admit additional documents which the High Court had rejected and 3uch power was in no way restricted or governed by the provisions of the Code. It was then laid down that if any incidental remarks appearing in this judgment, in Inderjit Pratap Sahai case A.I.R. 1923 P.C. 128, have occasioned any doubt as to the meaning of the rules above referred to or the conditions under which the discretion of the appellate Court is to be exercised their Lordships desire to emphasise their view that the correct practice in the matter, as they have now defined it, is in accordance with the plain words of the Code.

4. The same strict view was adopted by their Lordships in Manmohan Das v. Bamdai , where their Lordships considered the introduction of fresh evidence in appeal as highly irregular and discarded such incompetent testimony in considering the rest of the evidence. I must accordingly hold that the appellate Court had no power to admit this fresh evidence. Indeed, the language of Order 47, Rule 1 indicates that the Court which can review its judgment is the Court which has pronounced it and not the appellate Court before which the appeal is pending.

5. The only remedy open to a party which has discovered new and important matter, which could not with due diligence have been found before, appears to be to move the Court for a review of judgment. The [last point is that the custom of preemption has been established in this case. The plaintiff relied on entries in two wajibularzes of 1833 and 1860. There were no entries in the subsequent wajibularzes. The history of the village was disclosed by the kafiar mahtavi and kafiar sherista nizamat', and it appeared that there were several sale-deeds in favour of strangers. Two judgments, one a compromise decree for pre-emption of the year 1923, and another, a copy of the High Court's judgment of 1914, were pronounced. The High Court had, on practically the same materials, come to the conclusion that no custom had been established. In the present case, therefore, the plaintiff had against him not only the materials which existed in the previous suit which came up to the High Court, but also the High Court's judgment, whereas the only additional evidence in favour of the plaintiff was a compromise decree of 1923. No doubt the presumption was in favour of the plaintiff, but there was sufficient evidence for the Court below to hold that that presumption had been rebutted. The view expressed by a Division Bench of this Court on practically the same materials is a strong piece of evidence in favour of the defendants. I accordingly dismiss the appeal with costs.


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