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Gopal Chandra Lahiri Vs. Solomon - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1886)ILR13Cal62
AppellantGopal Chandra Lahiri
RespondentSolomon
Excerpt:
review - mistake of counsel--civil procedure code (act xiv of 1882), section 623--limitation act (xv of 1877), section 5--'sufficient cause.' - .....of the 19th of march 1883, and on reading it discovered that, according to his construction of the deed, bibi solomon's interest in the said property (being a 7/24th share) did not pass by the instrument.10. on the 9th of april following, mr. hill made an application to mr. justice norris, who tried the suit, for a rule to show cause why there should not be a review of judgment.11. a rule nisi was granted; and on its coming on to be argued before mr. justice norbis, it turned out that, although the defendant had not been allowed before the trial to inspect the original deed of the 19th of march 1883, upon the ground that it was the plaintiff's title deed, the defendant's attorney had been supplied with a copy of it for the purpose of preparing the written statement, and also that each of.....
Judgment:

Richard Garth, C.J.

1. This is an appeal against an order of Mr. Justice Norris granting an application for review. The facts are somewhat peculiar.

2. The suit was brought by the plaintiff against the defendant Bibi Solomon to recover a portion of certain property which the plaintiff claimed as having been conveyed to him by one Khajah Abdul Azeez, the brother of the defendant, under a conveyance dated the 9th of March 1883.

3. Mr. Phillips, who appeared for the plaintiff at the trial, opened the plaintiff's case, and claimed the property in question as having been conveyed to his client by that deed. The deed itself was produced and proved in the usual way, and as the counsel for the defendant raised no objection to the conveyance, it was taken as read.

4. The written statement raised the question as to the bond fides of the deed, as also whether Bibi Solomon's estate passed by it but the only defence apparently which was put forward by the defendant's counsel, was that the deed was fraudulent and void as against Bibi Solomon, and that the plaintiff was merely a trustee of the property conveyed.

5. This defence, however, the learned Judge considered that the defendant was not entitled to raise in such a suit; and consequently the plaintiff obtained judgment. This was on the 5th of February 1885.

6. On the 26th of the same month the defendant Bibi Solomon brought a fresh suit against the plaintiff, praying, amongst other things, that it might be declared that the transaction evidenced by the said indenture of the 19tn of March 1883 was invalid and inoperative, or that at all events it was fraudulent and void against her, Bibi Solomon. In fact, that suit was founded on the same grounds as the defendant's counsel desired to set up as a defence to this suit.

7. On the 2nd of March notice was served on behalf of Bibi Solomon upon the plaintiff in this suit of an application that the decree in the first suit should not be executed until the suit brought by Bibi Solomon had been disposed of; and that application was heard by Mr. Justice Wilson on the 30th and 31st of March.

8. Mr. Bonnerjee and Mr. Gasper appeared in support of it, and Mr. Hill and Mr. O'Kineally against it.

9. In the course of that hearing, Mr. Bonnerjee called for the conveyance of the 19th of March 1883, and on reading it discovered that, according to his construction of the deed, Bibi Solomon's interest in the said property (being a 7/24th share) did not pass by the instrument.

10. On the 9th of April following, Mr. Hill made an application to Mr. Justice Norris, who tried the suit, for a rule to show cause why there should not be a review of judgment.

11. A rule nisi was granted; and on its coming on to be argued before Mr. Justice NORBIS, it turned out that, although the defendant had not been allowed before the trial to inspect the original deed of the 19th of March 1883, upon the ground that it was the plaintiff's title deed, the defendant's attorney had been supplied with a copy of it for the purpose of preparing the written statement, and also that each of the counsel for the defendant, Mr. Bonnerjee and Mr. Gasper, had copies of the deed supplied them at the trial.

12. Two objections were raised on the argument of the rule: 1st, whether there was sufficient reason for granting the review; and 2ndly, whether there was sufficient cause for not applying for the review within the 20 days allowed by the Limitation Act.

13. Both these points, after some hesitation, the learned Judge decided in favour of the applicant; and the rule was made absolute for a review.

14. This is an appeal against that decision; and the questions submitted to us in appeal were those which were raised in the lower Court, namely, 1st, whether there was sufficient reason for granting the review; and, 2ndly, whether the application was in time.

15. Now, as to the first of these points, the material facts, as I understand them, are these-

The claim to the property in suit as conveyed by the deed in question was bond fide made by the plaintiff at the trial. It is not suggested that there was any want of good faith in the way in which the plaintiff's case was presented or conducted, or that there was any attempt to put a construction upon the deed, which the plaintiff's advisers did not believe to be correct.

15. The deed itself in the operative part of it professed to convey to the plaintiff the whole of the house and premises which were the subject of the suit; and it was only by a careful examination of the recitals that the point raised by Mr. Bonnerjee in his application for review was discovered.

16. The defendant's advisers, her attorney and counsel, had ample opportunity for examining the deed, and of ascertaining its true construction before the trial. They had a copy of it furnished to them for preparing the written statement, and each of the counsel at the trial had also a copy in his brief. If, therefore, they failed at the trial to see the point now raised, it was entirely their own fault.

17. Mr. Bonnerjee very properly and candidly admits that he did not read the deed. His attorney did not call his attention to the point now raised, and he had no reason to suppose that there was anything in the document which required examination. But whether the omission was his or the attorney's, it is obvious that the point was one which, by the exercise of due diligence would have been discovered.

18. To allow a review under such circumstances would, I think, be acting in opposition, both to the letter and the spirit of Section 623 of the Code. It may be difficult no doubt, and perhaps undesirable, to attempt to define precisely the meaning of the words any other sufficient reason in that section; but it is clear from the earlier part of the clause that a point which might have been, but which was not, discovered at the trial by the exercise of due diligence, was not intended by the section to afford any sufficient reason for review.

19. But secondly the question as to limitation appears to me to present at least as much difficulty as the other.

20. The judgment was given on-the 5th of February 1885; the decree was signed on 25th day of February 1885; but the application for review was not made until the 9th of April, long after the 20 days prescribed by the Limitation Act had expired.

21. Mr. Bonnerjee contends that there was sufficient cause, within the meaning of Section 5 of the Act, for not making the application within the 20 days. But what is the alleged cause? Merely that the learned Counsel did not happen to read the deed until the 30th of March, when he did so for the purpose of a proceeding in another suit. If this were to be deemed a sufficient excuse for the application not being made m due time, it would be an equally good excuse for delaying the application for a year or any longer time, whenever the learned Counsel might happen to read its contents.

22. The case of In re The Manchester Economic Building Society L.R. 24 Ch. D. 488 was cited to us as an authority in favour of extending the time; but that case is no authority in favour of the respondent.

23. Even assuming the rules upon this subject in England to be the same as they are here, it will be found that in the case of the Manchester Economic Building Society, the fact which was made the ground for allowing the appeal after time, was one which the applicant was not, and could not, even by the exercise of due diligence, have been made aware of at the time when order was made which was sought to be appealed against.

24. I think that the appeal should be allowed, and the application for review dismissed with costs.

Wilson, J.

25. Upon the first question whether there were in this case grounds upon which a review could be granted, I express no opinion. If at a trial all parties, counsel on both sides, and the Judge are under a misapprehension as to the contents of a document, or even if the Judge alone is misled on such a point, and in consequence a wrong decree is made, I am disposed to think that the mistake ought to be corrected on review.

26. Upon the question whether there was sufficient cause for not applying within the time limited by law, I agree with the Chief Justice.


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