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(Vankayala) Venkataratnam Vs. Dhanalakota Varahalu and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1928Mad56
Appellant(Vankayala) Venkataratnam
RespondentDhanalakota Varahalu and anr.
Excerpt:
- - the learned subordinate judge does not say in his very brief order, that he deemed the certificate to fulfil these conditions, and it is perfectly clear that it does not. the order refusing to restore the suit was passed on 25th january 1926 upon an application dated 15th december 1925. the certificate purports to bear date 16th december 1925 and no explanation whatever has been offered for the failure to produce it before that order was passed, e.curgenven, j.1. it is impossible to justify the order of review, against which this -civil revision petition is presented under the terms of order 47, rule 1, civil p.c. the only conceivable ground for granting the review is that the medical certificate, constituted new and important evidence, which, after the exercise of diligence was not within the petitioner's knowledge, and which was subsequently discovered. the learned subordinate judge does not say in his very brief order, that he deemed the certificate to fulfil these conditions, and it is perfectly clear that it does not. the order refusing to restore the suit was passed on 25th january 1926 upon an application dated 15th december 1925. the certificate purports to bear date 16th december 1925 and no explanation whatever has been.....
Judgment:

Curgenven, J.

1. It is impossible to justify the order of review, against which this -civil revision petition is presented under the terms of Order 47, Rule 1, Civil P.C. The only conceivable ground for granting the review is that the medical certificate, constituted new and important evidence, which, after the exercise of diligence was not within the petitioner's knowledge, and which was subsequently discovered. The learned Subordinate Judge does not say in his very brief order, that he deemed the certificate to fulfil these conditions, and it is perfectly clear that it does not. The order refusing to restore the suit was passed on 25th January 1926 upon an application dated 15th December 1925. The certificate purports to bear date 16th December 1925 and no explanation whatever has been offered for the failure to produce it before that order was passed, e.g., when the application was heard on 25th January. I think that before granting the review the lower Court was bound to consider this obvious point though it does not seem to have done so. It is said that not every order in which in granting a review a Court fails to observe the terms of Order 47, should be interfered with in revision, and I agree, although the, revising Court's power is, of course much wider under Section 25, Small Cause Courts Act, than under Section 115, Civil P.C. But in the present case it appears to me upon the merits, that the certificate is almost certainly false, at least in the sense that it was brought into existence long after the date it bears. Probably its origin may be traced to a remark in the earlier order that no certificate had been filed. I do not think that, by force of a piece of evidence of this nature, and so far as I can see by force of that alone, the respondents should have lost the benefit which they obtained under the order refusing to set aside their decree. I, therefore, set 'aside the lower Court's order as passed without jurisdiction. I do not think that any useful purpose would be served by remanding the case for a fresh disposal, because I cannot find on the record any materials upon which a Court in the exercise of its discretion could found an order in review.

2. The civil revision petition is allowed and the application for review is accordingly dismissed. Petitioner will get his costs in both Courts.


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