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Sailabala Dei and anr. Vs. Gadahar Hazra and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in70Ind.Cas.408
AppellantSailabala Dei and anr.
RespondentGadahar Hazra and ors.
Cases ReferredPanchanan Mookerjee v. Radha Naih Mookerjee
Excerpt:
civil procedure code (act v of 1908), section 114, order xl 1, rue 11 - order under order xli, rule 11--review--discovery of new and important evidence. - .....of my learned brother and myself whereby the appeal was dismissed under order xli, rule 11 of the code of civil procedure.2. the plaintiff failed in the first court and in the lower appellate court. he then appealed by way of special appeal to this court and after hearing the appeal my learned brother and i dismissed it, as i have already said. then an application for review was made on the ground that, after the dismissal of the appeal under order xli, rule 11 of the code of civil procedure, a document was discovered by the plaintiff, which document, he said, could not have been discovered earlier by the exercise of reasonable diligence, that it was an important document and, as was alleged in the petition, it would throw light upon the case. we granted him a rule for the purpose of.....
Judgment:

Lancelot Sanderson, C.J.

1. This was a Rule calling upon the opposite party to show cause why the judgment of this Court, dated the 19th of July 1921, should not be reviewed as prayed. The Judgment of this Court of the 19th of July was a Judgment of my learned brother and myself whereby the appeal was dismissed under Order XLI, Rule 11 of the Code of Civil Procedure.

2. The plaintiff failed in the First Court and in the lower Appellate Court. He then appealed by way of special appeal to this Court and after hearing the appeal my learned brother and I dismissed it, as I have already said. Then an application for review was made on the ground that, after the dismissal of the appeal under Order XLI, Rule 11 of the Code of Civil Procedure, a document was discovered by the plaintiff, which document, he said, could not have been discovered earlier by the exercise of reasonable diligence, that it was an important document and, as was alleged in the petition, it would throw light upon the case. We granted him a Rule for the purpose of having this point argued.

3. Now that our attention has been drawn to the cases which have been decided by this Court, in my judgment this Rule must be discharged.

4. In the case of Rajani Kanta Das v. Kali Prasdnna Mukherjee 26 Ind. Cas. 281 : 41 C. 809 it was decided that the High Court has no authority merely on the ground of alleged discovery of to and important evidence to review an order dismissing an application for the admission of a second appeal tinder Order XLI, Rule 11 of the Code of Civil Procedure,, a decision which is directly in point on the question now before us. It is true that that was a decision of a single Judge of this Court, Mr. Justice Coxe but the learned-Judge based his decision on a case Bhyrub Nath Toee v. Rally Chunder Ghowdhry 16 W.R. 112 at p. 114 heard by Mr. Justice' Loch and Mr. Justice Bayley, and they decided as follows: 'Under any circumstances, it appears to us; that this Court cannot admit a review of a judgment passed in special appeal merely on the ground that new evidence to prove a fact has been discovered, and under this view of the law we think this application should be rejected with costs.'

5. A futher case, to which my learned brother drew my attention during the tourse of the argument, Panchanan Mookerjee v. Radha Naih Mookerjee 4 B.L.R. 213 is to the same effect. That was a case decided by Mr. Justice loch and Mr. Justice Mitter in the year 1870; and, having regard to the settled state of law on this point since 1870, in my, judgment it is not possible for us to do otherwise than to discharge this Rule with costs hearing fee one gold mohur.

Richardson, J.

6. I agree.


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