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Ganeshi Lal Kishna Lal Vs. Seth Mool Chand Nemi Chand - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAllahabad
Decided On
Reported inAIR1935All435; 157Ind.Cas.1084
AppellantGaneshi Lal Kishna Lal
RespondentSeth Mool Chand Nemi Chand
Cases ReferredKhuda Baksh v. Allah Ditta
Excerpt:
- .....granted the defendant costs in the small cause. court. the decree in the high court dismissing the revision application of the plaintiff merely said that the application was dismissed and granted costs of the high court to the defendant opposite party. there were thus two decrees in favour of the defendant. it was not a case where there was merger of a decree of the small cause court in that of the high court. as therefore were two separate decrees in the present case it is clear, that there was no merger. reference was also made far the applicant in review to sheo balak singh v. mahabir singh 1931 all. 704. that was a case of this court in second appeal confirming the decree of the court below and therefore there was a merger. similarly in shivappa v. ramachandra 1922 bom. 130 there was.....
Judgment:
ORDER

Bennet, J.

1. This is an application in a civil revision by a defendant against an order of a Small Cause Court allowing a review of judgment. The facts are that the predecessor of the Court below on 9th July 1932 dismissed the suit of the plaintiff. Subsequently there was an application by the plaintiff in revision in this Court which was dismissed. Later an application was made for review of judgment after the period of limitation had expired and the plaintiff the applicant for review, asked for the benefit of Section 5, Limitation Act. The application was based on the discovery of two post cards stated to have been written by the defendant and to have not been discovered at the time of the suit. Evidence was given that these post cards could not be discovered with due diligence and the lower Court has accepted that evidence. The lower Court has also allowed the application of Section 5, Limitation Act, on this ground that the matter only came to the knowledge of the plaintiff with the discovery of the letters and that the application was made within the period of limitation allowed from the date of the discovery. The first ground which is argued in ground No. 1 of revision is that the lower Court's judgment having merged in that of the High Court the lower Court was not competent to 'entertain an application for review. Learned Counsel for the applicant refers to various rulings one of which Gauri Shanker v. Jagat Narain 1934 All. 134. In that case there was an ex parte decree in the Small Cause Court for the plaintiff and the plaintiff applied in revision to this Court asking for future interest and this Court allowed the revision and added future interest to the decree. The decree of the small Cause Court therefore merged in the decree of this Court and a new decree was framed by this Court. This case however is different from the present case where the application in revision was dismissed. In the present case the decree of the Small Cause Court dismissing the suit of the plaintiff granted the defendant costs in the Small Cause. Court. The decree in the High Court dismissing the revision application of the plaintiff merely said that the application was dismissed and granted costs of the High Court to the defendant opposite party. There were thus two decrees in favour of the defendant. It was not a case where there was merger of a decree of the Small Cause Court in that of the High Court. As therefore were two separate decrees in the present case it is clear, that there was no merger. Reference was also made far the applicant in review to Sheo Balak Singh v. Mahabir Singh 1931 All. 704. That was a case of this Court in second appeal confirming the decree of the Court below and therefore there was a merger. Similarly in Shivappa v. Ramachandra 1922 Bom. 130 there was a merger in the case of a second appeal to the High Court. No ruling has been produced for the applicant in review to show that any High Court has held that there is a merger in the case of a High Court dismissing an application in revision. The contrary has been held in Khuda Baksh v. Allah Ditta 1920 Lah. 321. It was laid down in that ruling that a decree of a Small Cause Court is final and not appeasable and although in certain circumstances it may be set aside or modified by a High Court in virtue of its revisional powers it must remain a decree of the Court which originally passed it when the High Court declines to interfere with it on the revision side and the lower Court accordingly is competent to entertain an application for amendment. I consider that this ruling applies to the facts of this case and that the lower Court was competent to entertain the application in review of judgment.

2. The next ground which was argued was ground No. 7 that the order of the lower Court, allowing the plaintiffs to produce further evidence besides the two letters could not be justified. Learned Counsel for the applicant argued that the Court would be limited by the provisions of Order 47, Rule 1 in making directions in regard to evidence. That rule does not purport to deal with this matter. On the contrary Rule 8 is the rule which applies and that rule states as follows:

When an application for review is granted, a note thereof shall be made in the register and the Court may at once re-hear the case or make such order in regard to the rehearing as it think fit.

3. This rule shows that it was open to the Court either to rehear the case or to make such order in regard to the rehearing as it thought fit. It would no doubt have been open to the lower Court to make an order that no evidence should be produced except in regard to the two letters. It was however open to the lower Court to make a simple order for rehearing, as it has done. This matter being within the jurisdiction of the lower Court I do not think that I should interfere with that portion of the order in revision. The next point which was argued was ground No. 2 that the application was barred by time and there was no sufficient cause shown and the Court had not properly considered, the question of limitation. On this objection is made that under Order 47. Rule 1 the Count must find in the present case that there was the:

discovery of new or important matter or evidence which after the exercise of due diligence was not within the knowledge of the plaintiff or could not be produced by him at the time when the decree was passed or order made.

4. In particular, it is argued that there is mo finding of the lower Court that these letters are material. The lower Court has stated that:

the plaintiff alleges that the letters are material and the Court then proceeds to state. There is no knowing yet of the worth of these post cards, but taking them to be such as sent by the defendant to the plaintiff it is just worth while to review the case on hard merits giving parties full latitude to produce such evidence as they may.

5. I consider this a finding that the letters are sufficiently important to justify the order for review. The next ground argued was No. 3 that no notice was issued to the defendant in the hearing of the application under Section 5, Limitation Act. The order shows that no formal notice was issued but, that, the defendant was heard at full length on this point. This appears to me sufficient. The 5th ground was also argued that the affidavit did not disclose sufficient grounds for review. The affidavit was supplemented by the deposition of the plaintiff which does disclose sufficient ground. I consider that no ground for interference in revision has been shown. I therefore dismiss this application for revision with costs.


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