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Manmohini Debi Vs. Ram Kishore Tarkaratna and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1923Cal273,68Ind.Cas.334
AppellantManmohini Debi
RespondentRam Kishore Tarkaratna and ors.
Cases ReferredKessowji Issur v. Great Indian Peninsula Railway Co.
Excerpt:
civil procedure code (act v of 1808), order xli, rule 27, order xlvii, rule i - admission of evidence at appellate stage--insufficient ground--proper remedy. - .....right in refusing to admit this evidence at the heating of the appeal.3. the only other point urged is that the court of appeal below is in error in thinking that the whole case of the plaintiff depended upon her possession of plot no. 6 and this has vitiated its judgment. from what i have seen of the judgments of the two lower courts i am unable to hold that the learned judge is wrong in holding that the plaintiff's ease must fail if she fails to prove her possession of plot no. 6. the judgment whish is one of affirmance has dealt sufficiently with other points in the ease and has given good grounds for supporting the finding of the first court on the fasts. on these findings the plaintiff's suit necessarily fails.4. i accordingly dismiss the appeal with costs to each set of respondents.
Judgment:

1. This is an appeal against a decree dismissing a suit for declaration of the plaintiff's Niskar title to one-third share of the lands of the plaint and for partition. The dismissal by the Court of first instance was affirmed on appeal by the lower Appellate Court.

2. The main point urged in this appeal is that the lower Appellate Court was wrong in refusing to receive certain documents in evidence under Order XLI, Rule 27, Code of Civil Procedure, The plaintiff-appellant's case was that she was unaware of the more important of these documents daring the hearing of the case in the First Court. The lower Appellate Court has held that that is no sufficient ground for admission of the evidence under Order XLI, Rule 27, Code of Civil Procedure, and the plaintiffs proper remedy is by an application for a review under Order XLVII, Rule 1. In support of this view be sites the case of Garden Beach Spinning and Manufacturing Co. v. Secretary of State for India (1). He has wrongly referred to it as a Privy Council decision whereas it is a decision of a Bench of this Court. But it is nonetheless binding on the learned Additional District Judge and is also binding on mo sitting singly. Though it is not itself a decision of the Judicial Committee it is based on their decision in the case of Kessowji Issur v. Great Indian Peninsula Railway Co. 31 B. 381 : 9 Bom. L. Rule 871 : 11 C. W. N. 721 : 6 C. L. J. 5 : 4 A. L. J. 461 : 17 M. L. J. 347 : 34 I. A. 115 : 2 M. L. T. 435 (P. C). These decisions fully support' the view of the learned Additional District Judge. I bold that he was right in refusing to admit this evidence at the heating of the appeal.

3. The Only other point urged is that the Court of Appeal below is in error in thinking that the whole case of the plaintiff depended upon her possession of plot No. 6 and this has vitiated its judgment. From what I have seen of the judgments of the two lower Courts I am unable to hold that the learned Judge is wrong in holding that the plaintiff's ease must fail if she fails to prove her possession of plot No. 6. The judgment whish is one of affirmance has dealt sufficiently with other points in the ease and has given good grounds for supporting the finding of the First Court on the fasts. On these findings the plaintiff's suit necessarily fails.

4. I accordingly dismiss the appeal with costs to each set of respondents.


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