1. This is an application to review the order on Full Bench. Application 99 of 1930 passed on 18th January 1932 under Order 41, Rule 7(c), Presidency Small Cause Courts Act, by which the counter-petitioner was allowed to file a copy of a certain document for purposes of new trial. The facts which led up to this order are as follows : One Deva Singh died on 3rd September 1926 leaving a minor defendant-petitioner and a, widow and the plaintiff-petitioner. He also left a will and the minor through his maternal aunt Devaki Bai, filed O.P. No. 72 of 1928 in the District Court of Cuddapah for a succession certificate and he obtained it after notice to the present plaintiff who opposed the petition. The plaintiff filed a Small Cause No. 10319 of 1929 on a promissory-note alleged to have been executed by Devaki Bai as guardian of the minor. The trial Judge dismissed the suit on 22nd February 1930 and the plaintiff preferred an application for a new trial on the ground that the document in O.P. No. 72 of 1928 was new and important matter which after the exercise of the diligence was not within her knowledge and could not be produced before the Court at the time of the trial. The petitioner's pleader produced a copy of O.P. No. 72 to the Court and pointed out that the plaintiff herself had been a party to this, had notice, and had put in a counter and so it was clear that it was within her knowledge and could have been produced before the Court in the Small Cause suit. The Bench however passed the order now sought to be revised, making no mention of this objection urged. The order runs as follows:
We have this day allowed the petitioner-plaintiff to file a new document, copy of an affidavit by the defendant, which the plaintiff was unable to produce at the time of the trial. This is really a very important piece of evidence. We therefore set aside the decree and remand the case to the learned trial Judge for a de novo trial.
3. Against this order the present revision petition is filed and it is to be noted that in the affidavit filed by the counter-petitioner she admits that the allegation (vide para. 7 of the affidavit) that the attention of the Bench was drawn to O.P. No. 72 by the petitioner's advocate and that he argued that she must be aware of the contents of the petition. The argument of this para. 7 is on the lines that even if a party has been furnished with a copy of a petition, he cannot be expected to remember all the allegations in that petition. The learned advocate for the respondent insisted only on the fact that there was no counter affidavit put in but I have not been shown any authority and I am not satisfied that the mere absence of a counter affidavit will enable the Court to grant an application under Order 41, Rule 7, when the party, on whom the onus rests of making out the facts necessary for such an order has not done so, and when the Court's attention has been clearly directed to evidence conclusively proving the contrary. It has been held in V. Pothuraju v. M. Adiseshu 1925 Mad. 578, that a Court has no power to pass such an order without calling for strict proof, that the new matter was not within the knowledge of the respondent when the decree was passed. In Rameswaradhari Singh v. Sadha Saran Singh 1924 Pat. 809 it was held that the words 'or could not be produced by him in time' in Order 47, Rule 1, Civil P.C. which corresponds to Order 41, Rule 6(e), Small Cause Courts Act 'could not be produced by him at the time,' must refer to the words which precede it was not within his knowledge and the whole clause must mean that the new and important matters which are alleged by the applicant for review were not Within his knowledge and therefore could not be produced by him at the time of the decree sought to be renewed.
4. The matter might have worn a different aspect if the Full Bench had in their order stated that, in spite of what had been pointed out to them by the 'earned advocate for the defendant, nevertheless they held as a fact that the plaintiff had made out that the matter was not within her knowledge. They never alluded to the argument nor have they mentioned one of the essentials t grounds necessary to sustain their order. The affidavits filed in the Small Cause Court and hare by the plaintiff clearly imply that after the decree had been passed she recollected or suspected that there might be something in this Original Petition No. 72 and hence she got a copy of it. She does not attempt to give any explanation as to why this was not within her knowledge at an earlier date before the decree was passed. This revision petition is therefore allowed and the order set aside with costs in both Courts.