1. This second appeal arises out of a suit in which the plaintiff asked for an injunction. The defence was that the plaintiff had no title. The suit has been decreed by the lower appellate Court which found in favour of the plaintiff-respondent in this Court, having sufficient title to sue. The defendant appeals. Before deciding the appeal it is necessary to consider the appellant's application for the production in this Court of further evidence. He has alleged by an affidavit that he became aware, subsequent to the decision of the lower appellate Court, of the existence of evidence showing that Anokhey Lal from whom the plaintiff derived her title had entirely disposed previously of his interest in the property. The application for production of further evidence purported to be under Order 41, Rule 27.
2. There is no doubt in my mind that, if this were a first appeal, this Court could allow the further evidence to be produced under Order 41, Rule 27(b). It has been laid down by their Lordships of the Privy Council in Inderjit Partab v. Amar Singh A.I.R. 1928 P.C. 128 at p. 684 (of 2 Pat.) that this provision will cover the case of the production of evidence, even though that evidence is not required by the appellate Court to enable it to pronounce judgment, but is only tendered on the ground of fresh discovery. But it is urged by counsel for the respondent that Order 41, Rule 27 only applies to first appeals, and that the Privy Council decision also can only be construed to have reference to a case where further evidence is tendered in a first appeal. But Order 42 declares that the rules of Order 41 shall apply so far as may be to second appeals. There is, therefore, in my opinion, no reason for holding that the additional evidence could not be accepted by this Court. It is, however, another matter whether, having accepted that evidence, this Court could consider it. In second appeals decisions of fact cannot be impugned. It is clear that this evidence is tendered in order to impugn a question of fact. I hold that it would be useless for this Court to accept the evidence if it cannot use that evidence for the purpose for which it is tendered, and I further hold that it cannot. This was the view taken in Shamshuddin Biswas v. Molannessa Bibi A.I.R. 1926 Cal. 941 at 943. The same view was adopted in Wali Mohammad v. Mohammad Baksh A.I.R. 1924 Lahore 444 at 445. Where a party wishes to produce further evidence affecting a matter of fact, it must get that evidence produced before a Court which can decide a question of fact. It is useless for him to tender that evidence before a Court which is confined to questions of law. But it appears that the appellant did tender this further evidence to the lower appellate Court and asked for a review of judgment. The application of the appellant to this effect was dated 16th April 1927. This appeal was filed on 17th May 1927, before the review case came up for hearing before the lower appellate Court. The lower appellate Court passed a somewhat curious order on the application. It neither accepted the application for review nor rejected it, but stated that, as an appeal had been filed before its consideration of the application, the application would be held pending. It is not clear what advantage there could be in postponing decision instead of rejecting the application.
3. I am of the opinion that the order of the lower appellate Court on the application for review was not a proper order. Order 47, Rule 1, governs the procedure to be adopted on an application for review of judgment. A condition precedent prescribed by that rule for making such an application is that there has been no appeal preferred. At the date when the application was made this condition was satisfied. There is nothing in Order 47, Rule 1, or in other provisions of the Civil Procedure Code, so far as I am aware, which would justify the lower appellate Court in refusing to entertain the application for review merely on the ground that subsequent to the making of the application an appeal had been filed. The policy of the Code appears to me to be that a person cannot after filing a second appeal allowed to apply to obtain a review of judgment in the lower Court, which should have the effect of altering the judgment and decree from which he had appealed. The Code has not contemplated a case where having applied for review the same person appeals. It might be deemed a good reason in such a case for rejecting the appeal, but, as an application for review has been filed no sufficient ground appears to me to exist by reason of the subsequent filing of an appeal for rejecting the application. Consequently I hold that the lower appellate Court should have proceeded to deal with the application for review.
4. The next question is what remedy has the applicant to correct the order of the lower appellate Court postponing consideration of the application for review. No appeal from such an order lies as it cannot possibly be considered a final order. On the other hand, such an order is not included in the list of orders contained in Order 43, Rule 1 from which an appeal is allowed. The only method, then by which this Court can interfere is by revision under Section 115 of the Code. It appears to me that in refusing to proceed with the application for review the lower appellate Court failed to exercise a jurisdiction vested in it, and therefore. I can interfere. As regards the appeal, it is obvious that decision on it should be held over pending the decision by the lower appellate Court on the application for review. Accordingly it is ordered that this appeal be postponed for three months, and it is ordered that the lower appellate Court be directed to take up again the appellant's application for review, dated 16th April 1927, and dispose of the same on the merits. It will not be open to that Court to hold that the application will not lie on the ground of the filing of an appeal in this Court, but it will be open to that Court to consider whether the application is in order having regard to the other provisions and conditions imposed by Order 47, Rule 1, including the provision that if a review is asked for on the ground of discovery of fresh evidence, it must be shown that the applicant could not with due diligence have been aware of the existence of that evidence.
5. As regards costs in this case it appears to me that the appellant is to blame. He should not have filed his second appeal but should have deferred doing so until his application for a review had been decided. This being so I consider that the appellant should bear the cost of counsel on the other side for today's proceedings. This cost will be reckoned at Rs. 32, the amount of fee certified as paid to the, respondent's counsel. Any other or subsequent costs in connexion with this appeal will abide the result of the appeal.