K.C. Das Gupta, J.
1. This appeal is against an order granting an application for review in a partition suit after the judgment had been delivered and preliminary decree had been, made on the 27th September, 1955. The application for review was made on the 13th October, 1955. The ground urged was that the applicants, defendants Nos. 1 and 2 in the suit, had discovered an entry in a birth register showing the birth of a son of Nishikanta Purkait on the 1st of August, 1924 and that this was new and important evidence which was not, after exercise of due diligence, within their knowledge and, therefore, could not be produced by them at the time when the judgment was passed.
2. One of the main questions in the partition suit was whether on the 24th March, 1952, when Saralabala executed a deed of sale in favour of the plaintiff as guardian of Kaniala Kanta Purkait, described in the deed as her minor son, Kamala Kanta was really a minor. It appears that thereafter on the 7th May, 1952, Kamala Kanta himself executed a deed of sale in favour of defendants Nos. 1 and 2. If Kamala Kanta was really a major on the 24th March, 1952, his interest did not pass by the sale by his mother Saralabala. If, on the other hand, he was a minor on that date, his interest passed by that sale and defendants Nos. 1 and 2 acquired nothing by the subsequent sale by Kamala Kanta on the 7th May, 1952. For this reason, the parties concentrated in that case on the evidence that had to be adduced to prove the date of Kamala Kanta's birth. On the side of the defendants, much weight was attached to the entry in a birth register of the births of Kamala Kanta and his brothers,sons of Nishikanta Purkait. Three such entries were put in evidence but while exhibits B/1 and B/2 clearly referred to the birth of sons of Nishikanta Purkait, Ex. B, it was found, showed the birth of a son of one, Nishi Chandra Purkait as distinct from Nishi Kanta Purkait. The learned Judge rejected the defence contention that Nishi Chandra, as entered in Ex. B, might be a mistake for Nishi Kanta and pointed out that it was nobody's case that, Nishi Kanta was known as Nishi Chandra, that it was the positive evidence of the plaintiff's side that there was only one Nishi Kanta Purkait in village Mankhanda and it was further clear that there were two Nishi Chandra Purkaits in the same village and one of them was still alive. Holding, therefore, that Ex. B did not refer to the birth of any son of Nishi Kanta Purkait, the learned Judge concluded that it could not be held that Ex. B/2 really related to the third son of Nishi Kanta Purkait. The conclusion reached by the learned Judge as regards the entries in the birth registers was in these words :
'So the birth registers as produced by the defence side in this suit do not at all help us in solving the riddle.'
After consideration of the evidence on the record, the learned Judge came to the conclusion that Kamala Kanta was really a minor on the date of execution of the kobala by Saralabala. In that view, he decreed the suit in part declaring the plaintiff's share to be 4/5th of the disputed property.
3. The new evidence on the alleged discovery of which the defendants Nos. 1 and 2 had asked for review purports to show that one son was born to Nishi Kanta Purkait on the 1st of August, 1924. That evidence would undoubtedly be of very great assistance to the defendants in showing that Ex. B/2 referred to Kamala Kanta and consequently in showing that Kamala Kanta was a major on the date of execution of the kobala by his mother.
4. This application was opposed by the plaintiff mainly on two grounds, namely, that the new evidence, alleged to have been discovered, did merely show that a child was born to Nishi Kanta Purkait and not that a male child was born and further that the petitioners could easily have produced, at the time of the trial, this evidence, now sought to be introduced, if they had only searched for it with reasonable care and diligence.
5. The learned Judge, who heard the application for review, has come to the conclusion that the entry in the birth register, said to have been discovered now, shows the birth of a son to Nishi Kanta and further that there had been a bona fide mistake on the part of the defendants and their advisers and such bona fide mistake should not be confused with want of diligence. Though the learned Judge has not stated in so many words that the new evidence was not within the knowledge of the petitioners after the exercise of clue diligence, it is clear that he did think that the petitioners had been duly diligent and still had not been able to discover this evidence. He added, however, that even if this ground was not held to be proved, the petition would succeed on the ground of other sufficient reason within the meaning of Order 47, Rule 1, Civil Procedure Code.
6. In this appeal by the plaintiff, the main question urged by Mr. Sarkar is that there was, in fact, not the slightest evidence before the learned court below to show that due diligence had been exercised by the defendants or anybody on their behalf for discovering the evidence which has now been found. Quite clearly, the defendants andtheir advisers were fully conscious of the importance of the entries in the birth register showing the birth of three sons of Nishi Kanta Purkait, two sons elder than Kamala Kanta. They obtained three copies of entries in the birth register, two of which clearly referred to births of sons of Nishi Kanta Purkait while the third showed the birth of a son of Nishi Chandra Purkait. The question that naturally arises is whether this fact, that Ex. B showed the birth of a son of Nishi Chandra Purkait and not to Nishi Kanta Purkait, could have been discovered by the defendants or their advisers if they had been duly diligent. If the defendants had been foreigners, they might not have fully appreciated the difference between Chandra and Kanta and might have wrongly thought that while the first name Nishi agreed, that was sufficient. The defendants are, however, not foreigners but belong to this country and I presume that their advisers are also natives of India. How they could omit to notice that Ex. B referred to the birth of a son of Nishi Chandra and not of Nishi Kanta, passes my comprehension. The only explanation is that none of them cared to read and examine the document. Ordinary diligence would, in my opinion, have been sufficient to bring home to them the fact that Ex. B was really of no assistance to them and though they had applied for a copy of an entry of the birth of Nishi Kanta's son, what they had obtained was a copy of an entry of Nishi Chandra's son. The necessary consequence of such discovery would have been to make further attempts to get a copy of the entry of the birth of a son of Nishi Kanta and if that had been done, it is reasonable to think that the defendants would have got in their possession the evidence they now claim to have discovered, well before the trial of the partition suit. It is interesting to notice that though three witnesses were examined by the defendants in support of their application for review, neither of the defendants cared to go into the witness box nor has any adviser or agent of theirs been examined. In fact, nobody has come into the witness box to say that they did exercise due diligence and in spite of it they could not discover the fact that, Ext. B referred to the birth of a son of Nishi Chandra or that after due diligence they could not have discovered the evidence which they were now seeking to produce. Mere statement in an application cannot take the place of evidence. Instead of giving evidence to show that they had exercised due diligence and in spite of such exercise, had not been able to discover the new evidence, the applicants for review contended themselves with an attempt to persuade the court that there was a bona fide mistake and that they had bona fide failed to notice the distinction between Nishi Chandra and Nishi Kanta. As I have stated earlier, I find it impossible to believe that anybody who exercised some amount of diligence could have failed to notice the distinction between Nishi Chandra and Nishi Kanta. On the evidence, therefore, there was no basis for the conclusion that the new and important matter now discovered, namely, the entry in a birth register, showing the birth of a son of Nishi Kanta Purkait, on the 1st of August. 1924, was not within the defendants' knowledge or could not be produced by them at the time the decree was passed after the exercise of due diligence.
7. On behalf of the respondents, Mr. Mukherji has argued that as soon as the applicants succeeded in satisfying the court that the new matter was not within their knowledge or could not be produced by them, the bar of the proviso in Clause (b) to Sub-rule (2) of Rule 4 of Order 47 of theCivil Procedure Code disappeared and that consequently where the court has granted an application for review without proof of the exercise of due diligence, there has been no contravention of the provisions of Rule 4 of Order 47 of the Civil Procedure Code, and consequently an appeal did not lie. The relevant part of Sub-rule (2) of Rule 4 of Order 47 is in these words :
'Were the court is of opinion that the application for review should be granted, it shall grant the same :
Provided that .... .... .... .... ....
(b) no such application shall be granted on the ground of discovery of new matter or evidence which the applicant alleged was not within his knowledge or could not be adduced by him when the decree or order was passed or made without strict proof of such allegation.'
It is true, as pointed out by Mr. Mukherji, that Clause (b) does not mention the words, 'after the exercise of due diligence'. I am unable to agree, however, that this justifies the conclusion that the bar of the proviso in Clause (b) disappears as soon as it is proved that the new matter was not within his knowledge or could not be produced without proof that this was so in spite of the exercise of due diligence. In my judgment, although the words, 'after the exercise of due diligence' appearing in rule 1 of Order 47, have not been repeated in Clause (b) of Sub-rule (2) of Rule 4 of Order 47, they have to be read into Clause (b) by implication as otherwise the requirement of the exercise of due diligence in Rule 1 becomes nugatory.
8. It is helpful to mention the observation of Mookerjee J. in Chiranjilal Ramalal v. Tulsiram Jankidas, ILR 47 Cal 568 at p. 581 : (AIR 1920 Cal 467 at p. 472) (A), where his Lordship observes :
'I desire to emphasise what was said in the case of Nandalal Mullick v. Panchanan Mukherji, ILR 45 Cal 60 : (AIR 1918 Cal 618 (2)) (B), that application for review on the ground of discovery of new and important matter or evidence should be considered with great caution.'
In that case, his Lordship observed that the application for review had been granted very lightly. I am bound to say that, in the facts of the present case, it must also be held that the application has been granted very lightly. As I have pointed out earlier, the learned Judge has not even recorded a clear finding that there was exercise of due diligence, even though it might be proper to hold that that was the inclination of his mind. The reason why he did not record a clear finding was probably the fact that no evidence worth the name had been adduced to show that there had been exercise of due diligence.
9. Mr. Mukherji drew our attention to certain observations made by Chakravartti, J. (now Chakravartti, C. J.) in the Full Bench case of Sm. Sarajubala Guha v. Aswini Kumar, 50 Cal WN 707 : (AIR 1946 Cal 530) (C). The question referred to the Full Bench was
'whether when an order granting an application for review is questioned in an appeal from the decree ultimately passed, the appellant is limited to the ground specified in Order 47, Rule 7 or is entitled to show that none of the grounds for review as specified in Rule 1, existed.'
That question was answered by the Full Bench in the negative. In dealing with the question whether the word, 'application' in Rule 7 of Order 47, should be understood as meaning the order, Chakravartti, J. observed :
'..if the Judge himself thinks that his decision should be reconsidered, the exercise of his discretion cannot itself be made the subject of an attack on the ground of the non-existence of sufficient reasons, but it is liable to question only on the ground that some transgression of jurisdiction or gross violation of procedure happened, as when the Judge granting the application was not the proper Judge to do so, or the application was granted, although it was barred by limitation or without notice to the opposite party.'
I am unable to agree that these observations were meant to lay down that in an appeal from an order granting the application, it was not right or proper for the court of appeal to consider whether there was any basis in law for the grant of review.
10. Whenever the legislature has left a matter in the discretion of a court and at the same time has provided for an appeal from its decision, in the exercise of that discretion, the task of the court of appeal is not to consider how it would have exercised the discretion but to examine whether the discretion has been exercised judicially, that is, in accordance with the well recognised Principles of law. For the Court of appeal to say that, if the Judge has exercised his discretion in a certain manner, that is the last word and there can be no interference, would amount to a refusal on the part of the court to do its duty. Even though the Judge has exercised his discretion, the court of appeal is hound to remember that an appeal has been allowed by the very law which gave the Judge the power to exercise his discretion. The appellate court has to decide the appeal and for the purpose of deciding the appeal, it has to examine the matter carefully to see whether the exercise of the discretion has been judicially done. Where, as in the present case, we are unable to discover anything in evidence to justify a conclusion that there was exercise of due diligence on the part of the defendants or their advisers, it must, in my opinion, be held that there was no basis for the learned Judge's order and that in granting a review, he has not exercised his discretion judicially.
11. As I have indicated earlier, the learned Judge did further state in his order that the application for review should be allowed also on the ground of sufficient reason. The question, how the words, 'sufficient reason,' should be interpreted, was answered by the Privy Council in Chhajju Ram v. Neki, 26 Cal WN 697 : (AIR 1922 PC 112) (D) and has often received judicial consideration. One thing which, however, appears to be clear to me is that when a party comes to the court and asks for review on the ground that after exercise of due diligence he was not able to discover important evidence which he has now discovered and it is found that he has failed to prove that he was diligent, it would be arbitrary to say that even then the court might give him relief on that basis of other sufficient reason. If some other reason had been alleged, the question would have arisen whether that was sufficient reason within the meaning of Order 47, Rule 1. What has been alleged here was the discovery of new and important matter after the exercise of due diligence. That, as I have pointed out above, has not been proved. To full back now on the residuary words, 'other sufficient reason,' is in my opinion, entirely capricious and arbitrary. In so far as the order of the learned Subordinate Judge was passed on the existence of other sufficient reason, I have no hesitation in saying that this was wholly arbitrary and such an order should not be allowed to stand. Even though that part of the order might be considered not appealable, it would be proper for us to set aside that order in the exercise of our powers of revision.
12. I have, therefore, come to the conclusion that nothing has been established in this case on which the court ought to grant review of the decree.
13. I would, therefore, allow this appeal with costs.
U.C. Law, J.
14. I agree.