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Musammat Palia Vs. Mathura Pershad - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in32Ind.Cas.622
AppellantMusammat Palia
RespondentMathura Pershad
Excerpt:
civil procedure code (act v of 1908), order xlvii, rule 1 - review--discovery of fresh evidence--due diligence at original trial, necessity of, proof of. - - the judge in the court below seems to have been satisfied by holding that mathura pershad had no previous knowledge of the evidence. but order xlvii, rule 1, distinctly lays down that any person considering himself aggrieved by a decree or order and who from discovery of new and important matter or evidence, which after the exercise of due diligence was not within 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. ' now those words are put there for excellent reasons......the pleas taken in defence was that at the time when the money was lent or said to have been lent shiam bihari 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 pershad 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 pershad 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.....
Judgment:

Tudball, J.

1. This appeal arises out of an order granting an application for review of judgment. The facts of the case are as follows. One Mathura Pershad, the respondent before us, executed a promissory note in favour of one Shiam Behari. The latter died and his widow Musammat Palia, 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 Bihari 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 Pershad 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 Pershad 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 Bihari to be appointed guardian of Shiam Bihari and a certificate of guardianship granted by the District Judge which went to show that Shiam Bihari was a minor at the date of the transaction. Musammat Palia 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 Pershad and granted the application. Musammat Palia 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 now be entertained by the Court below, I find it unnecessary in the view 1 take 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 Gohinda Ram Mondal v. Bholanath Bhatta 15 C. 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 Pershad 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 Bihari was a minor and his grandfather, Saya Mal, had actually been appointed guardian by the District Judge. Thereupon Mathura Pershad made enquiries 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 Pershad. At the hearing of the original Suit one Brij Lal was a witness on behalf of Mathura Pershad. The latter has admitted that Brij Lal and he were partners in a business and also that Brij Lal and Shiam Bihari, the alleged minor, were relations and co-sharers in the same property. Mathura Pershad 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 Bihari. The Judge in the Court below seems to have been satisfied by holding that Mathura Pershad 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 of new and important matter or evidence, which after the exercise of due diligence was not within 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 Pershad 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 Pershad's residence and I find it impossible to hold that Mathura Pershad exercised due diligence in the matter. The third point raised relates to the admissibility of the evidence which Mathura Pershad has given. In the circumstances of the case it is unnecessary to enter into the question or decide it. The result is that I allow this appeal and set aside the order of the Court below with costs here and in the Court below.

Walsh, J.

2. I agree. I think the learned Judge unfortunately entirely 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 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 in justice 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 enquiries. The 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, and his order cannot be supported. I agree with my learned brother's view as regards the Calcutta decision. I would point out what I discovered when my brother was delivering judgment, namely, that in this case, according to the statement of the applicant, the original decision was reviewed and upheld on his first application. This is what he says or appears to say in paragraph 3 of his application. If that were so, there had already been a review and there can be no doubt that this second application has no foundation in law. But on the assumption that the first application was refused and, therefore, there had been no review, whatever independent view I might be disposed to take of the provisions of this rule I think that in cases where no question of principle, but only a question of practice or procedure arises, it is desirable that the decisions of the various High Courts in various provinces should be as harmonious as possible and having regard to the fact that the decision of the Calcutta Bench was passed as long as twenty-three years ago, speaking for myself I should prefer to follow and adopt that ruling.

3. The appeal is allowed and the order of the Court below is set aside with costs in both Courts.


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