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Ramaswami Padayachi Vs. Shanmugha Padayachi - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1959)2MLJ201
AppellantRamaswami Padayachi
RespondentShanmugha Padayachi
Cases Referred and Devji Vasta v. Dhanji Nanji A.I.R.
Excerpt:
.....favour of the plaintiff on 18th june, 1954, for rs. 1. on the evidence it was contended that the suit promissory note is a fabrication on the ground that firstly, the defendant's brother was bedridden with tuberculosis for a year before his death and therefore could not have gone to virudhachalam to execute the suit promissory note ;secondly, that there were several circumstances like differences in ink in the promissory note and alleged occasions on which the amounts assured in the promissory note were said to have been paid ;and finally the non-tallying of the signature of the executant of the promissory note with his admitted signature in exhibits b-2 to b-5 and the discrepancies in the evidence of the witnesses. hence this revision petition by the defeated plaintiff. 7. it is now..........1954, for rs. 225. the defendant contended that his brother chinnamani did not execute the alleged suit promissory note and that it has been fabricated. the plaintiff examined himself as p.w. 1, the scribe of the promissory note as p.w. 2 and an attestor mentioned therein as p.w. 3. on the other hand the defendant examined himself as d.w. 1. on the evidence it was contended that the suit promissory note is a fabrication on the ground that firstly, the defendant's brother was bedridden with tuberculosis for a year before his death and therefore could not have gone to virudhachalam to execute the suit promissory note ; secondly, that there were several circumstances like differences in ink in the promissory note and alleged occasions on which the amounts assured in the promissory note were.....
Judgment:

Ramaswami, J.

1. This is a Civil Revision Petition sought to be preferred against the order made by the learned District Munsif of Virudhachalam in I.A. No. 27 of 1958 in S.C.S. No. 827 of 1957, declining to review the decree and judgment therein made on 10th December, 1957.

2. The facts are :-The petitioner was the defeated plaintiff in the aforesaid Small Cause Suit, which was filed for recovery of the amount due on a promissory note executed by the deceased brother of the defendant in favour of the plaintiff on 18th June, 1954, for Rs. 225. The defendant contended that his brother Chinnamani did not execute the alleged suit promissory note and that it has been fabricated. The plaintiff examined himself as P.W. 1, the scribe of the promissory note as P.W. 2 and an attestor mentioned therein as P.W. 3. On the other hand the defendant examined himself as D.W. 1. On the evidence it was contended that the suit promissory note is a fabrication on the ground that firstly, the defendant's brother was bedridden with tuberculosis for a year before his death and therefore could not have gone to Virudhachalam to execute the suit promissory note ; secondly, that there were several circumstances like differences in ink in the promissory note and alleged occasions on which the amounts assured in the promissory note were said to have been paid ; and finally the non-tallying of the signature of the executant of the promissory note with his admitted signature in Exhibits B-2 to B-5 and the discrepancies in the evidence of the witnesses. The learned District Munsif held that it had been proved to his satisfaction that the deceased Chinnamani executed the suit promissory note and dismissed the suit.

3. Thereupon a review application was filed stating that the two documents produced therewith should be admitted and the decree and judgment reviewed. The first document is a registered sale deed, dated 12th July, 1954, executed by Chinnamani in favour of plaintiff's daughter. The second document is a promissory note, dated 27th October, 1945. The suit promissory note is dated 18th June, 1954. The object of filing the above documents was to show that Chinnamani could have gone to Virudhachalam and executed the suit promissory note.

4. The learned District Munsiff came to the conclusion that no ground had been made out within the limits of Order 47, Rule 1, Civil Procedure Code for reviewing the judgment. Hence this Revision Petition by the defeated plaintiff.

5. On a review of the entire circumstances of the case, I have come to the same conclusion as the learned District Munsif. Here are my reasons:

6. A party aggrieved by a decree or a decision specified in Clauses (a), (b) or (c) of Sub-rule (1) of Order 47, Rule 1 may apply for a review in any of the following cases:

(i) On the ground of the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge of the party or could not be produced by him at the time when the decree was passed or order made : or

(ii) on account of some mistake or error apparent on the face of the record ; or

(iii) for any other sufficient reason.

7. It is now well-settled that when a review is sought on the ground of the discovery of new evidence, the evidence must be (1) relevant and (2) of such a character that if it had been given in the suit it might possibly have altered the judgment. As stated by Lord Loreburn, L.C., in Brown v. Dean L.R. (1910) A.C. 373, 'It (new evidence) must at least be such as is presumably to be believed, and if believed would be conclusive'. Application on this ground must be treated with great caution and as required by Rule 4(2) the Court must be satisfied that the materials placed before it in accordance with the formalities of the law do prove the existence of the facts alleged. It is not only the discovery of new and important evidence that entitles a party to apply for review, but the discovery of any new and important matter which was not within the knowledge of the party when the decree was made. Thus, an application under Order 47, Rule 1, Civil Procedure Code, must be treated with considerable measure of caution. That is a matter of public policy as it is obviously necessary that, save in exceptional circumstances, finality in litigation should be achieved at some point. The person who wants a review should at least prove strictly the diligence he claims to have exercised and also that the matter or evidence which he wishes to have access to, is if not absolutely conclusive, at any rate, nearly conclusive of the matter. It is not the proper function of a review application merely to supplement the evidence or to make it serve the purpose of merely introducing evidence which might possibly have had some effect upon the result. Ganga Ram v. Saradha , Sivalingappa v. Revappa I.L.R.(1915) Cal. 717:A.I.R. 1915 P.C. 78. and Pyare Lal v. Chhotey Lal A.I.R. 1942 All. 82., Rel. on; Basant Kumar v. Dinamani Singh A.I.R. 1955 Manipur 17, (Case-law discussed); Chunilal v. Manodara A.I.R. 1952 Kutch 25, Jutha Premji v. Faria A.I.R. 1952 Kutch 67, Lohku v. Phola A.I.R. 1955 N.U.G. 4842. and V. Mahadeva v. Commissioner of Hindu Religious Endoments, Madras : AIR1956Mad522 .

8. Bearing these principles in mind, if we examine the facts of this case, we find that the petitioner was in possession of these documents from 12th July, 1954 and 27th October, 1955. The suit was disposed of on 10th December, 1957. Therefore a bare assertion in the affidavit that he could not trace these documents earlier will not do. This case was not disposed of solely on the question whether Chinnamani could have gone to Virudhachalarn or not on the date of execution of the suit promissory note. The judgment in the suit took into consideration other circumstances in arriving at the conclusion that a decree could not be given on the basis of the suit promissory note. The object of the petitioner is nothing more than adding of additional and supplementary evidence in the pious hope that trying his luck once again, he may prove successful. Therefore, this application will not fall under the clause 'discovery of new and important matter or evidence.'

9. The next available ground is ''mistake or error apparent on the face of the record'. It is now well settled that the mistake or error justifying a review under Order 47, rule I, Civil Procedure Code, is most often an error of fact and may in certain cases be one of law also. But in all cases it should be an error of inadvertence ; in the case of an error of law it should not have been arrived at by a process of conscious reasoning. Further, if it is an error of law, the correction suggested or asked for should be such that the bare statement carries conviction without further reasoning or extraneous matter. So, an erroneous view on a debatable point of law or a failure to interpret the law correctly would not be an error of law apparent on the face of the record. The test in such matters is whether the Court itself would have made the correction if it was aware of the particular fact or circumstance while writing the judgment. In other words, whether it is an inadvertent mistake or error or a conscious application of mind leading to a result which one party may consider to be erroneous or a mistake : Moran Mar Basselios Catholicos v. Athanasius : [1955]1SCR520 ; Keshodas Wadhumal v. Syed' Murtuja : AIR1952All318 , Dharma Das v. Safiwan A.I.R. 1951 V.P. 44, Ussain v. Kuniraman (1953) 1 M.L.J. 132 : 66 L.W. 70 : : AIR1953Mad519 , Abdul Aziz v. Jai Ram (Case law reviewed)., Rameswaraswami v. Ramalinga Raju (1958) 1 An.W.R. 290, Maula Bux and sons v. State of U.P. A.I.R. 1956 Vin. Pra. 1. Puyan Liklai Singh v. State A.I.R. 1950 Manipur 18, Durgadas v. Ibrahim Ali A.I.R. 1952 Bhopal 15, and Balchand v. State . On the foot of this, settled law, if we examine the facts of this case, we find that there is no error apparent on the face of the record.

10. Nor can the facts of this case be said to come under the clause 'for any other sufficient reason.' It is now well settled that the words 'any other sufficient reason' in Order 47, Rule 1, Civil Procedure Code, should be interpreted as amounting to a reason sufficient on grounds, at least analogous to those specified immediately previously. It is loosely said that this means that the sufficient reason must be ejusdem generis to the reasons previously stated. The words 'analogous reason' are however wider and mean a reason having resemblance or similar in certain circumstances to the reasons previously stated. Thus, an excusable failure to bring to the notice of the Court the relevant material is covered by the terms of Order 47, rule, 1 Civil Procedure Code. The mistake of the counsel would be a suffiicent ground for granting review as 'any other sufficient cause.' Ram Das v. Ganga Das : AIR1956Pat20 , Ram Murti v. Bank of Patiala A.I.R. 1951 Pepsu 54, Harit Krishna v. Anil Krishna : AIR1951Cal469 , and Devji Vasta v. Dhanji Nanji A.I.R. 1952 Kut. 45.

11. But where as in this case, the judgment is based on two or more grounds, each of which is sufficient to sustain it independently of the other, it is not liable to be reiewed, even though one of the said grounds on which the judgment is based is erroneous and the error may even be apparent on the face of the record. Therefore, the review application cannot be brought in under the clause' any other sufficient reason.'

12. The conclusion of the learned District Munsif declining to review is irreproachable and this Revision Petition is dismissed.


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