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Jadav Chandra Moulik Vs. Manik Sarkar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in51Ind.Cas.652
AppellantJadav Chandra Moulik
RespondentManik Sarkar
Excerpt:
civil procedure code (act v of 1908), order xli, rule 27, order xlvii, rule 1 - appeal, second--judgment delivered in former suit, whether can be admitted as additional evidence--review--procedure. - .....the lower appellate court delivered his judgment, without knowing that the judgment in the former suit had been delivered by this court on the day previous, following the decision of the lower appellate court in the former suit. the plaintiff now comes on appeal here. it appears that the records before the lower appellate court did not contain the judgment of this court of the 28th february 1917. it is quite obvious that the proper course to adopt in the circumstances was to apply to the judge of the lower appellate court for a review of his judgment on the ground of discovery of new and important matter, namely, the judgment of the high court, which was delivered on the 28th february 1917 which reversed the judgment of the lower appellate court in a former suit and having failed to.....
Judgment:

Ernest Fletcher, J.

1. This appeal is preferred by the plaintiff against a decision of the learned District Judge of Rungpur, dated the 1st March 1917, confirming a decision of the Munsif at Kurigram. The plaintiff sued the defendant for rent. The matter in dispute between the parties was the rate of rent. There was a former litigation between the parties on the same point which came up to this Court and this Court, on the 28th February 1917, took the view of the plaintiff on the matter. On the 1st March 1917 the learned Judge in the lower Appellate Court delivered his judgment, without knowing that the judgment in the former suit had been delivered by this Court on the day previous, following the decision of the lower Appellate Court in the former suit. The plaintiff now comes on appeal here. It appears that the records before the lower Appellate Court did not contain the judgment of this Court of the 28th February 1917. It is quite obvious that the proper course to adopt in the circumstances was to apply to the Judge of the lower Appellate Court for a review of his judgment on the ground of discovery of new and important matter, namely, the judgment of the High Court, which was delivered on the 28th February 1917 which reversed the judgment of the lower Appellate Court in a former suit and having failed to apply for a review of judgment, he cannot now have the whole proceedings set aside and to have additional evidence admitted in second appeal. In think that in a case in which the plaintiff deliberately abstained from applying for a review of judgment, we ought not to interfere with the judgment of the Court below.

2. The present appeal, therefore, fails and must be dismissed with costs.

Walmsley, J.

3. I agree.


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