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Nundo Lal Mullick Vs. Punchanon Mukherjee - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in42Ind.Cas.484
AppellantNundo Lal Mullick
RespondentPunchanon Mukherjee
Cases ReferredShankarrao Gangadhar v. Ramji Harjivan
Excerpt:
civil procedure code (act v of 1908), order xliii, rule 1 (w), order xlvii, rules 4 and 7 - review, grounds, for granting, when review in, sought on allegation of discovery of new evidence--'strict proof,' meaning of--appellate court's power to enter into question of sufficiency of proof for review--handwriting, conclusion upon mere comparison of, value of. - sanderson, c. j.1. this is an appeal from a judgment of mr. justice greaves, and it is a case, in my opinion of considerable importance, having regard to one of the issues which has been raised.2. the suit was for a sum of rs. 2,282-1413 pies. but in fact the only dispute was as to whether the defendant had paid the sum of rs. 1,000, which was a part of the sum for which the suit was brought.3. the learned judge when he tried the case gave his decision on the 7th of march 1916, and he came to the conclusion that an alleged receipt in respect of the rs. 1,000 in question which was put forward by the defendant was a forgery and had not been signed by the plaintiff. he also expressed a strong opinion with regard to the way in which the witnesses gave their evidence. he said: 'if i have to.....
Judgment:

Sanderson, C. J.

1. This is an appeal from a judgment of Mr. Justice Greaves, and it is a case, in my opinion of considerable importance, having regard to one of the issues which has been raised.

2. The suit was for a sum of Rs. 2,282-1413 pies. But in fact the only dispute was as to whether the defendant had paid the sum of Rs. 1,000, which was a part of the sum for which the suit was brought.

3. The learned Judge when he tried the case gave his decision on the 7th of March 1916, and he came to the conclusion that an alleged receipt in respect of the Rs. 1,000 in question which was put forward by the defendant was a forgery and had not been signed by the plaintiff. He also expressed a strong opinion with regard to the way in which the witnesses gave their evidence. He said: 'if I have to choose between the evidence of the plaintiff and the defendant, I would unhesitatingly prefer the evidence of the plaintiff. So far as I could see, he seemed to me a truthful witness,' and later on he said: 'Having regard to this fact' (referring to the signatures which were put before him), 'and also the demeanour of the witnesses in the witness-box, I think my judgment in this case ought to hi in favour of the plaintiff.'

4. Then an application for a review of that judgment was made by the defendant on the 13th of March 1916, and it was based upon the allegation that fresh evidence had been discovered, and the fresh evidence which was alleged to have been discovered was an entry in one of the plaintiff's books, which was under date the 17th of March 1915, purporting to state that this Rs. 1,000 had been paid on the 13th of March 1915. The actual entry translated by my learned brother Mr. Justice Mookerjee---a translation which was adopted by both the learned Counsel in the case---was to this effect: The account was called 'a deposit or suspense account,' there was a word which might be translated as deposit or suspense and we might read it as a deposit account or a suspense account as you prefer to translate it---'Received Rs. 1,000 from Punohanon Mukerjee, dated the 29th Falgun, on account of Singhiram Poddar on account of rent Rs. 1,000.'

5. I ought to have mentioned that this Rs. 1,000 which, it was alleged, had been paid was supposed to be in respect of one month's rent which was due from the defendant himself in respect of the premises in question and also in respect of Rs. 500 part of a sum which the defendant was bound to pay under a guarantee which he had given for one, Singhiram Poddar, one of the sub-lessees of the said premises.

6. Then the learned Judge upon, this application for review directed an issue to be tried; and, the issue was whether this entry was in the roker book at the time of the hearing of the case or had been inserted since. Upon that issue the learned Judge came to the conclusion that the entry was in the roker book when he tried the case, and had not been inserted subsequently. He, therefore, granted the review; but he did not follow the procedure which is directed by Order XLVII, Rule 8, of the rules under the Civil Procedure Code, which provides that 'when an application for review is granted, a note thereof shall be made in the register and the Court may at once re-hear the case or make such order in regard to the re-hearing as he thinks fit.' He proceeded to give judgment for the defendant, on all the facts of the case which had been proved before him both in the first trial and also at the hearing of the issue. It was, however, agreed by the learned Counsel in this Court that no objection should be taken upon the ground that the learned Judge, had not strictly followed the procedure which is laid down by Order XLVII, Rule 8, but that it should be taken that he had re-tried the case and had given judgment for the defendant on all the facts of the case.

7. When the case comes to this Court, first of all there is an appeal from the learned Judge's decision that there ought to be a review; and secondly, there is an appeal from his decision in favour of the defendant upon all the facts of the case.

8. Now, in respect of the first matter I think that this case is of general importance, namely, the question whether there ought to have been a review.

9. The other point is undoubtedly of importance lo the parties themselves, because there is a sum of Rs. 1,000 involved and considerable costs which have been incurred, but that point is not of general importance.

10. Now, with regard to the question whether there ought to have been a review, the learned Judge has exercised his discretion and has granted it, and, in my judgment, it is not possible for us on this appeal to say that he ought not to have made an order for a review, for this reason; It is admitted by the learned Counsel for the appellant that Order XLVII, Rule 1 (1), of the rules under the Civil Procedure Code is applicable to this case, and that rule provides as follows---'Any person considering himself aggrieved By a decree or order from which an appeal is allowed, but from which no appeal has been preferred,...and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge, or could not be produced by him at the time when the decree was passed, or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order.' Then there is Rule 4 of that Order, which provides (1) 'Where it appears to the Court that there is not sufficient ground for a review, it shall reject the application.' (2) 'Where the Court is of opinion that the application for review should be granted, it shall grant the same.' 'Provided that...no such application shall be granted on the ground of discovery of new matter or evidence which the applicant alleges was not with in his knowledge, or could not be adduced by him when the decree or order was passed or made, without strict proof of such allegation.' The matter does not rest there, because Rule 7 provides; 'An order of the Court rejecting the application shall not be appealable; but an order granting an application' (which was the case here) 'may be objected to on the ground that the application was (a) in contravention of the provisions of Rule 2' (it does not apply to this case)---'(b) in contravention of the provisions of Rule 4.... Such objection may be taken at once by an appeal from the order granting the application or in any appeal from the final decree or order passed or made in the suit.' Therefore, in my judgment, we are limited to seeing whether the application was granted by the learned Judge in contravention of the provisions of Rule 4. To go back to the provisions of Rule 4 (b), it says: 'There must be strict proof of such allegation.' What is the allegation? The allegation is that 'the matter or evidence was not within the applicant's knowledge or could not be adduced by him when the decree or order was passed or made.' Now, having regard to the evidence which has been referred to by the learned Judge. I cannot say that there was not strict proof of those facts, namely, that the applicant had not knowledge of the new evidence or that he could not have adduced it at the time of the trial. I think it is only necessary to mention the fact that the book in which the entry was made had not been produced until the trial of the action. In fact the plaintiff had claimed his right to limit the inspection to the entries which he swore were relevant to the matter in issue, and it was not until the case was being heard before the learned Judge that the defendant's Attorney had the first opportunity of looking at the book generally; and, I think it was quite possible, as was pointed out by the learned Judge, that the learned Counsel for the defendant when he was in the act of cross-examining, although he looked through the book, might have missed this entry, especially as he was not looking for this particular entry, but he was looking for other entries to prove that the receipts of money were not always entered on the particular dates on which the money was received. Further, the evidence is not such that it is possible to say that during the course of the cross-examination the defendant's Attorney ought to have seen or must have seen the entry in question, if it was there, consequently, I do not think that this application for a review was granted in contravention of Rule 4 of Order XLVII.

11. But having regard to the argument which has been addressed to us on the one side as well as on the other, during the course of the appeal, as to the principle on which a review ought to be granted, when it is asked for upon the allegation that fresh evidence has been discovered, I think it is right to express my judgment with regard to the principle which ought to be acted upon in future with regard to such cases.

12. In my judgment it is most important that there should be some finality in the trial of cases, and the greatest care ought to be exercised in granting a review, when that review is asked for upon the allegation that fresh evidence has been discovered since the judgment was given. It must be obvious to every one that unless great care is exercised when such an application is made, the door may be thrown open to all kinds of abuses. It is so easy to the party who has lost his case, to see what the weak part of his case was, and the temptation to try and procure evidence which will strengthen that weak part and put a different complexion upon that part of the case must be very strong.

13. I do not think that I can do better than refer to two authorities upon that point which were referred to in the course of the argument. The cases to which I desire to refer are first, Young v. Kershaw (1899) 81 L. T. 531; 16 T. L. R. 52, in which the judgments were delivered by Lord Justices A. L. Smith, Collins and Williams. Lord Justice A. L. Smith said this: 'It seems to me that the cases which have been referred to show that a new trial may be granted'--I may say in passing that in this respect the question whether a review may be granted is the same as whether a new trial may be granted--if newevidence, which could not have been obtained before, has been discovered which, if it had been adduced at the trial, would have been conclusive so that the verdict must have been found otherwise than it was. I think that is the rule, apart from all the authorities, which I will not discuss. That being so, what is the new evidence in this case which the defendant has discovered? Would that evidence have been conclusive of this case if it had been adduced at the trial? In my opinion it is evidence obtained under suspicious circumstances, and for that reason alone I think that it cannot be considered as conclusive.' I draw attention to that, because the learned Judge in his judgment has said that the circumstances under which this evidence came to light were curious and suspicious, not to say improbable.' As I have said, I think having regard to the provisions of Order XLVII, Rule 7, this Court is debarred from going into this matter, and I am only dealing with it for the purpose of expressing the principle upon which the question now under discussion ought to be dealt with---Lord Justice Collins said: 'It is obviously in the public interests that parties, who have gone through the ordeal of litigation and have had their rights settled at the trial, should not afterwards be allowed to patch up the weak parts and fill up the omissions in their case by means of fresh evidence. That is a rule of great importance. It is true that in special and exceptional circumstances a new trial has been granted because new evidence has been discovered. But the rule which permits that to be done is fenced round with many limitations. The party asking for the new trial must show that there was no remissness on his part in adducing all possible evidence at the trial. Then, again, as to the class of new evidence, the rule is that the new evidence must be such that, if adduced, it would be practically conclusive---that is, evidence of such a class as to render it probable almost beyond doubt that the verdict would be different. In some of the oases which have been cited, the new evidence came in to corroborate evidence which was, although not contradicted, weak at the trial, and that corroboration made the previous weak, but uncontradicted, evidence practically conclusive. The other cases were oases in which the new evidence consisted of documents which were not impeached and were conclusive.' Lord Justice Williams said: I do not believe that the Court can grant a new trial simply because there is new evidence, which was not available at the trial, unless it can also bb shown that the verdict was based on mistake, surprise, or fraud and that another Jury ought, therefore, to consider the matter.'

14. Again, in the House of Lords, in the case of Brown v. Dean (1910) A. C. 373: 79 L. J. K. B. 690: 102 L. T 661: 54 S. J. 412, the Lord Chancellor, Lord Loreburn, in discussing the same point said, at page 374: 'When a litigant has obtained a judgment in a Court of Justice whether it be a County Court or one of the High Courts, he is by law entitled not to be deprived of that judgment without very solid grounds; and where (as in this case) the ground is the alleged discovery of new evidence, it must at least be such as is presumably to be believed, and if believed would be conclusive.'

15. These are the principles which, in my judgment, ought to be applied to an application for a review which is based upon the allegation that new evidence has come to light since the judgment was given. The learned Judge in this case in the exercise of his discretion granted a review; and, as I have already said, by reason of the provisions of Order XLVII, it is not open to us to revise that order, because I do not think that it can be said that the provisions of Rule 4 of that Order have been contravened. Having said that, I must come to the conclusion that the appeal with regard to the question as to whether the learned Judge was right in granting the review must be dismissed.

16. Then I come to the question whether the learned Judge's judgment upon the facts of the case ought to be upheld: and, here I think this Court is placed in a position which is different from that in which the Court is often placed in a case where it is an appeal from the judgment of a learned Judge upon a pure question of fact, at a trial in the ordinary course of events. I have said so many times that I hardly need repeat it now that in an ordinary case, where the appeal is upon a question of fact, where the learned Judge of the Court of first instance has heard and seen the witnesses and has come to a conclusion upon the question of fact upon the evidence on the one side and on the other, there is a very great onus upon the shoulders of the appellant when he comes to this Court and asks it to overrule the decision of the learned Judge upon the question of fact. But this is not a case such as I have described. The circumstances of this case are peculiar, and I should think, probably they may never be repeated. In my experience I have never come across a case at all like it, because the position is this: The plaintiff brought his action for the recovery of Rs. 2,282 and it is alleged that he did so knowing that he had given a receipt for Rs. 1,000, a part of that sura, knowing that he had in his roker book an entry which would show that the money was paid in accordance with the defence that was set up by the defendant, knowing that though perhaps for a time he might by swearing falsely conceal that entry, knowing---at all events his advisers must have known---that sooner or later that book would probably be inspected, and the entry would come to light, and knowing all that, he brought his action for the sum. The learned Judge having heard the case, and having considered it, and having dealt with the evidence on the one side as well as on the other came to the distinct conclusion that the truth lay upon the side of the plaintiff, that the receipt in question, in respect of the Rs. 1,000, was a forgery and that the money had not been paid, and that the plaintiff was a witness of truth and the defendant was not a witness of truth. Then comes the other evidence and the learned Judge had to approach this further evidence, namely, the production of the entry from this point of view, that the circumstances under which the evidence came to light were curious and suspicious, not to say improbable:' and, I am not surprised that the learned Judge came to that conclusion, having regard to the story told by the defendant as to how he came to know that there was this entry in existence. I need not repeat the story in detail. But the suggestion is, that a few days after the trial, as the defendant was going home from the High Court, he had to pass the plaintiff's house on the way to his own house; just when he was approaching the plaintiff's house he saw the plaintiff's brother-in-law and the servant Okhoy coming out of the house, and he heard them talking about the case which had just been decided, the plaintiff's brother-in-law expressing admiration to Okhoy as to how the difficulty of the receipt had been got over. I had better quote the defendant's own evidence as to this. He says, the brother-in-law said, you have performed a feat you house done an extraordinary thing. You have done away with the receipt granted with Nundo's own hands.' Okhoy then said, 'there is nothing extraordinary in this. There is a credit of Rs. 1,000 on the 3rd Chaitra, but inspite of this application they could not see it.' He mentioned the date of 3rd Chaitra. He did not mention the date of payment. Then the brother-in-law said, 'Charu Babu has cleverness.' I should have thought that that story in itself was highly improbable, but then there were other circumstances which lead me to believe that that story may be described not only as 'curious and suspicious, not to say improbable, but one which could not be accepted.' I need not go further than to say that I agree with the description which the learned Judge gave to it.

17. Now, there are several other matters which are relevant to the consideration of the point at issue.

18. Looking at the entry itself, and here I speak, like the learned Judge in the Court below, with some hesitation, because I have not the advantage, which the learned Counsel on both sides and my learned brother have, of knowing the language in which the entry was made, and, therefore, I confine myself to saying this, it is obvious it is written in a different ink to the other entries which are on the same page. It is also obvious that it is the only credit entry on that page, and, therefore, it is difficult to understand why this came to be written in a different ink and with a different pen. And, if that was made in the ordinary course of business one would have expected it to have been made by the same person who made the entries on the debit side with the same ink and same pen. There is something more important than this: It is not, I understand, disputed that everyone of the entries upon that page on the debit side have been carried forward to the ledger by the person who was employed to do that, the entries are ticked and they are carried forward to the ledger. If this entry was made in the ordinary course of business it must have been made, as the defendant's case is, on the 17th March. But I do not see why this entry was not ticked and carried forward in the ledger. This point, however, is not confined to that page. The defendant is not able to put before the Court a single other entry in that cash book, which was not carried forward in the ledger except the one which is in dispute. This, to my mind, is evidence which points strongly to the fact that the entry did not come into existence in the ordinary course of business. But it is urged by the defendant that the receipt was obviously written, first of all, as regards the body of it, by Okhoy, and secondly, as regards the signature by the plaintiff. I do not intend to express any opinion upon that, because I do not like to base my judgment upon the observations which I made during the course of the case as regards the handwriting, although I have with the assistance of my learned brother observed some things. I am content to say that the learned Judge who saw the witnesses, and heard them give their evidence and who himself compared the signature in question with other admitted signatures of the plaintiff, and who was in a far better position to judge of it than I am, has come to the conclusion that that was not the plaintiff's signature, and I am content to adopt his conclusion.

19. There is another matter which weighs with me, and that is this: If it be right to regard, as I think it is right, the circumstances under which this evidence came into existence as not only curious and suspicious but also improbable, so that the story is one which cannot be accepted, the has to ask oneself why such a story was brought forward. With what object was it brought forward? If that story is incredible why was it told? It could be told only for the purpose of explaining that which otherwise was inexplicable, viz., how it was that the defendant came to know of this entry.

20. These are some of the reasons which make me think that the evidence with regard to the entry in the roker book is unsatisfactory, and if I had been the learned Judge who had to exercise his discretion as to, whether he would grant a review or not, I would have refused, because the evidence came into existence under suspicious circumstances and was not in itself conclusive, inasmuch as there was a conflict of evidence as to whether it existed at the time of the trial or not. There is evidence on the one side; is well as on the other side, and if there be a doubt as to whether the evidence as to the existence of the entry at the date of the trial ought to be accepted or not, it is difficult to see how it can be said to, be conclusive. I have, however, already said that we are bound by the rule to which I have referred, and we cannot go into the matter of the review. But the nature of the evidence and the circumstances under which it came into existence are material when I am considering the question whether the learned Judge upon all the facts of the case ought to have, in effect, overruled his previous decision. In my judgment, the evidence with regard to this entry is of such an unsatisfactory nature and it came into existence in such an unsatisfactory way and the learned Judge was apparently in such doubt as to whether it should be accepted, that it ought not to be taken as sufficient to overrule the distinct and clear-opinion which he had formed, namely, that the money had not been paid, that the receipt had been a forgery, and that the plaintiff ought to be believed.

21. For these reasons, emphasizing again as I do, that this is not an ordinary case of an appeal from a judgment upon a question of fact but that it is a case out of the; ordinary, and with peculiar circumstances, in my opinion, the learned Judge's judgment on the previous occasion, when he came to; the conclusion that the money had not been paid, ought to be upheld, and judgment, ought to be given in favour of the plaintiff.

22. The result is that the appeal against the review is dismissed. The appeal against the final decree of the Court of first instance is allowed and judgment for the plaintiff, is to he entered, with costs of both hearings in the Court of first instance. The plaintiff will have the costs of the appeal except one day's costs which are to be defendant's and set off against the plaintiff's costs.

Mookerjee, J.

23. This appeal raises two distinct questions: The first relates to the propriety of the order made by Mr. Justice Greaves on an application for review of judgment presented to him on the 13th March 1916; the second relates to the correctness of the final decree made by him on review, in modification of the decree made at the original trial.

24. The plaintiff instituted this suit for recovery of a sum of money from the defendant. The defendant pleaded that the plaintiff had not allowed him credit for Rs. 1,000 which he had paid on the 13th March 1915, and for which he held a receipt. Mr. Justice Greaves, who tried the suit, came to the conclusion that the receipt was not genuine and that on the oral evidence the defendant had failed to prove the plea of payment. The result was that the claim was decreed in full on the 7th March 1916. Six days later, the defendant made an application for review of judgment under Order XLVII, Rule 1, Sub-rule (1) of the Civil Procedure Code, 1908, on the ground that he had discovered new and important evidence which was not within his knowledge and could not have been, by the exercise of due diligence, produced by him at the time when the decree was passed. The new evidence consisted of an entry in an account book filed by the plaintiff at the trial, which recited the alleged payment of Its. 1,000 by the defendant. The application for review was heard in due course and was granted, notwithstanding the assertion of the plaintiff that the entry was not in the account book when it was filed in Court on his behalf and must have been interpolated therein, after the close of the trial, at the instance and for the benefit of the defendant. Upon this disputed question of fact, Mr. Justice Greaves came to the conclusion that he could not hold, upon the evidence, as he would otherwise have done but for the seeming impossibility of any subsequent insertion of the entry that the entry was not in existence when he tried the case. The procedure prescribed by Rule 8 of Order XLVII was, however, not strictly followed, and the case was not re-heard, but a decree was forthwith made in modification of the decree made at the original trial and credit was allowed to the defendant to the extent of Rs. 1,000.

25. The present appeal by the plaintiff was at first argued as an appeal directed against the order granting the review, but it was subsequently agreed between the parties that the appeal should be deemed as directed not merely against the order granting the review but also as against the final decree made in the suit. We have now to consider the questions raised in the appeal thus widened in scope by consent of parties.

26. Now, in so far as the appeal is directed against the order granting the review, it is clear that the scope of the appeal is restricted by Rule 7, Sub-Rule (1), Clause (6) of Order XL VII of the Code, the provisions of which are to this effect: 'An order granting an application may be objected to on the ground that the application was in contravention of the provisions of Rule 4;' and, Rule 4 prescribes in Clause (b) of the proviso 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 adduced by him when the decree or order was passed or made, without strict proof of such allegation.' Consequently, under Rule 7, an order granting an application for review may be attacked by way of appeal on the ground that the application has been granted on the ground of discovery of new evidence without strict proof of the allegation of the applicant that such new evidence was not within his knowledge or could not be adduced by him when the decree was passed. In the case before us, Mr. Justice Greaves has held and, as the materials on the record show, correctly held that there was such strict proof. In these circumstances, it is not open to this Court as the Court of appeal to consider the question of the sufficiency of proof, at the invitation of the appellant. This view is supported by a long series of decisions in this Court, to which reference will presently be made. But the appellant has invited our attention to Order XLIII, Rule 1, Clause (w) of the Code, which allows an appeal against an order granting a review; and has contended that the appeal thereby given is not restricted in its scope. In my opinion this contention is not well founded and is opposed to the decisions in Jagar Nath Prasad Singh v. Ramavatar Singh 14 Ind. Cas. 39 and Hari Charan Saha v. Baran Khan 25 Ind. Cas. 903: 41 C. 746. These cases recognize the principle that Order XLIII, Rule 1, Clause (w) must be read as controlled by Rule 7, order XLVII of the Code. This is emphasized by the decision in Abed Khondkar v. Mohendra Lal De 29 Ind. Cas. 252: 42 C. 830: 19 C. W. N. 804. In that case, an application for review had been granted by the Court of first instance on the ground of discovery of new evidence after the trial. An appeal was preferred against that decision, and the Court of Appeal came to the conclusion that there had not been sufficient proof of the allegation that the new evidence was not within the knowledge of the applicant and could not have been adduced by him when the decree was passed. A second appeal was preferred to this Court and was heard by Mr. Justice N. R. Chatterjea, who held that the Court of Appeal below was competent to determine the question of the sufficiency of the evidence adduced in support of the allegation made by the applicant, as otherwise the provision for appeal would be meaningless. An appeal was then preferred under Clause 15 of the Letters Patent and was heard by Sir Lawrence Jenkins, C. J., and Mr. Justice Woodroffe, who held that the expression 'strict proof' means proof according to the formalities of the law and has no reference to the sufficiency of the quantum of evidence adduced. The result was that the judgment of Mr. Justice N. R. Chatterjea was reversed and the case was remanded for consideration of other points which arose in the appeal [see also Indar Kuar v. Baldeo Bakhsh 7 Ind. Cas. 1015: 13 O. C. 248]. We are thus limited to the consideration of the question, whether there was strict proof, that is proof according to the formalities of law, of the allegation that the new evidence was not within the knowledge of the applicant and could not have been adduced by him at the original trial. That there was strict proof in this sense cannot be disputed. It is, consequently, not open to us to reverse the order whereby review was granted by Mr. Justice Greaves on the ground that the evidence was not sufficient to support his conclusion. But as the case is of considerable importance, I feel bound to record my Concurrence in the opinion expressed by the learned Chief Justice that the procedure followed was contrary to well-established principles. The decisions in Young v. Kershaw (1899) 81 L. T. 531: 16 T. L. R. 52 and Brown v. Dean (1910) A. C. 373: 79 L. J. K. B. 690: 102 L. T 661: 54 S. J. 412 emphasize the care to be exercised in granting an application for review of judgment on an allegation of discovery of new matter or evidence; the new evidence must at least be such as is presumably to be believed and if believed would be conclusive [see also Warham v. Selfridge & Co. (1914) 30 T. L. R. 344]. I may add that the same view has been taken by the Judicial Committee in two recent cases, namely, Turnbull and Co v. Duval (1902) A. C. 429: 71 L. J. P. C. 84: 87 L. T. 154.: 18 T. L. R. 521 and Kessowji Issur v. Great Indian Peninsula Railway Company 34 I. A. 115: 6 C. L. J. 5: 31 B. 381: 11 C. W. N. 721: 4 A. L. J. 461: 9 Bom. L. R. 671: 17 M. L. J. 347: 2 M. L. T. 435 (P. C). In the first of these cases, Lord Lindley observed that a new trial ought never to be lightly granted: and he held with reference to the circumstances of that case, that no case of fraud or surprise had been made out. In the second case, Lord Robertson pointed out the dangers inseparable from the grant of an application for review of judgment on an allegation of discovery of new matter or evidence. In that case, an application was made to the Trial Court for review of judgment on the ground of discovery of new matter or evidence. That application was refused. On an appeal prefer-red against the decision of the Trial Court, an application was made to the Court of Appeal to receive such additional evidence. The Appeal Court acceded to this prayer and on the evidence so admitted, taken with the evidence previously on the record, reversed the decision of the Trial Court. The Judicial Committee condemned this procedure and held that the additional evidence, which it was alleged had been discovered after the decision of the Trial Court, should never have been received. I cannot consequently see any escape from the conclusion that, in the case before us, the additional evidence should not have been received and should not have been accepted as a ground for granting the application for review. But, as I have already said, it is not open to this Court, under Rule 7 of Order XLVII, to reverse the order of Mr. Justice Greaves on this ground.

27. We have next to consider the appeal in so far as it assails the correctness of the decree ultimately made by Mr. Justice Greaves in modification of the decree made by him at the first trial. The question in controversy relates to the alleged payment of Rs. 1,000 by the defendant to the plaintiff on the 13th March 1915. The evidence may be divided into oral testimony and documentary proof. In so far as the oral testimony is concerned, we have oath against oath. Mr. Justice Greaves who had the opportunity of seeing the witnesses expressly stated in his first judgment that the evidence on the side of the defendant was untrustworthy and that if he had to choose between the plaintiff and the defendant, he would without hesitation accept the testimony of the plaintiff; he further described the demeanour of the witnesses on behalf of the defendant as unsatisfactory. Under such circumstances, I am not prepared to take a different view of the value of the oral testimony from what has been adjudged by the Trial Judge. As regards the documentary evidence, we have two important items, namely, first, a receipt alleged to have been given by the plaintiff to the defendant, and, secondly an entry alleged to have been made in the account book produced at the trial by the plaintiff. As regards the receipt, Mr. Justice Greaves pronounced against its genuineness. We have been invited in this Court to compare the signature on the receipt with the various admitted signatures of the plaintiff on the record; but, as pointed out by the Judicial Committee in Kurallee Persaud Misr v. Anuntoram Hajra 8 B. L. R. 490: 16 W. R. P. C: 16 2 Sar. P. C. J. 695: 2 Suth. P. C. J. 454 (P. C.), it is by no means safe to base our conclusion upon a mere comparison of handwriting without proper materials on the subject [Shankarrao Gangadhar v. Ramji Harjivan 28 B. 58: 5 Bom. L. R. 668]. Consequently, I must hold that the view taken by Mr. Justice Greaves that the receipt was not genuine has not been successfully attacked in this Court. There remains finally the entry in the account book. That entry is of the most suspicious character, and I am by no means convinced that it was in fact in existence at the date of the first trial. On the strength of evidence of such doubtful value I cannot hold that the defendant has discharged the burden which lay upon him to establish his plea of payment.

28. On these grounds, I agree that this appeal must be allowed and the first decree of Mr. Justice Greaves restored.


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