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Ahed Khund Kar and ors. Vs. Mohendra Lal Dey and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in9Ind.Cas.320
AppellantAhed Khund Kar and ors.
RespondentMohendra Lal Dey and ors.
Cases ReferredKessowji Issur v. The Great Indian Peninsular Railway Company C.L.J.
Excerpt:
review - discovery of new matter--strict proof of allegation--appeal--civil procedure code (act xiv of 1882), sections 626 and 629. - .....the question whether there was strict proof of the allegation as provided in section 626(b) of the civil procedure code, or whether the decision of the court granting the review is final upon the question.2. the plaintiffs brought a suit for rent at the rate of rs. 18 per year, and obtained a decree at the rate claimed. the defendants applied for review of judgment under section 623, civil procedure code, on the ground that the defendants could not file certain documents when the case was taken up as they did not know that those documents had been filed in a previous suit. the court admitted the review holding that the defendants had sufficient cause for not producing the documents when the case was heard and that the documents were not within their knowledge and could not be produced.....
Judgment:

N. Chatterjee, J.

1. The question raised in this appeal is whether in an appeal against; a decree passed after granting a review of judgment on the ground of discovery of new matter or evidence which the applicant for review alleged was not within his knowledge or could not be adduced by him at the time when the decree was originally passed against him, it is competent to the appellate Court to try the question whether there was strict proof of the allegation as provided in Section 626(b) of the Civil Procedure Code, or whether the decision of the Court granting the review is final upon the question.

2. The plaintiffs brought a suit for rent at the rate of Rs. 18 per year, and obtained a decree at the rate claimed. The defendants applied for review of judgment under Section 623, Civil Procedure Code, on the ground that the defendants could not file certain documents when the case was taken up as they did not know that those documents had been filed in a previous suit. The Court admitted the review holding that the defendants had sufficient cause for not producing the documents when the case was heard and that the documents were not within their knowledge and could not be produced after the exercise of due diligence at the time, and reheard the case and set aside its previous decree and decreed the suit only at the rate of rent admitted by the defendants. The plaintiffs appealed and on appeal, the learned Subordinate Judge held that the allegations of the defendants were not strictly proved and as such the admission of the review was in contravention of the provisions of Section 626 Clause (b) of the Civil Procedure Code and he accordingly set aside the judgment of the first Court passed on review, and restored its first judgment.

3. The defendants have appealed to this Court and it is contended on their behalf, first, that the lower appellate Court had no power to go into the question whether the allegation of the defendants that the documents were not within their knowledge and could not be found with the exercise of due diligence, was strictly proved, that the decision of the Court admitting the review was final in the matter and reliance is placed upon the cases of, The Bombay and Persian 8. N. Company Limited v. The S.S. 'Zuari 12 B. 171; Har Nandan Sahai v. Behari Singh 22 C. 3; Barada Churn Ghose v. Gobind Prashad Tewari 22 C. 934 and Munni Ram Chowdhry v. Bishen Perkash Narain Singh 24 C. 878.

4. Section 629, Civil Procedure Code, lays down that an appeal shall lie against an order granting the review on the ground, among others, that the order was in contravention of the provisions of Section 626, Civil Procedure Code. Section 626 Clause (b) provides that no application for review shall be granted on the ground of discovery of new matter or evidence which the applicant alleges was not within his knowledge or could not be produced by him when the decree or order was passed without strict proof of such allegation. So that if a Court grants the review without strict proof of such allegation, the admission is in contravention of the provisions of Section 626, Civil Procedure Code, and the appellate Court, in order to find whether the order admitting the review was or was not in contravention of the provisions of Section 626, must decide whether the allegations have been strictly proved. Otherwise, the right of appeal in such a case would have no meaning.

5. The cases relied upon by the appellant are no authorities upon the question which has been raised. In these cases the question was whether an appeal lies against an order granting a review of judgment on the ground that there was not sufficient reason for admitting the application for review, if the Court granting the review finds that, there was sufficient reason for granting it. It was held in these cases that no appeal lay in such a case because the grounds upon' which an appeal lies are laid dawn in Section 629, Civil Procedure Code and the admission of a review for sufficient reason is not enumerated as one of the grounds upon which an appeal lies under Section 629, Civil Procedure Code. The case of Kessowji Issur v. The Great Indian Peninsular Railway Company C.L.J. 5 : 31 B. 381 : 11 C.W.N. 721 : 4 A.L.J. 461 : 2 M.L.T. 435 : 9 Bom. L.R. 671 : 17 M. L J. 347 is also relied on to show that the order of the Judge who tries the case is final, put in that case the Judge rejected the application for review and his order was, no doubt, final as provided in Section 629. On the other hand, that case lays down that application for review on the ground of discovery of new evidence must be strictly proved. The order of the Judge rejecting an application on such grounds is final. That case is no authority; for the contention that where such an application is granted, the order of the Judge granting it is final.

6. I think, therefore, that the lower appellate Court had power to decide whether the defendants had strictly proved their allegations. The learned Subordinate Judge found on the evidence that the defendants had failed to prove their allegations and that is a finding of fact with which I cannot interfere in second appeal.

7. The appeal is accordingly dismissed with costs.


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