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Ganga Ram Vs. Mt. Saradhu and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Review Petn. No. 16 of 1951
Judge
Reported inAIR1955HP25
ActsCode of Civil Procedure (CPC) , 1908 - Order 47, Rule 1
AppellantGanga Ram
RespondentMt. Saradhu and ors.
Appellant Advocate H.C. Anand, Adv.
Respondent Advocate Dina Nath, Adv.
DispositionPetition dismissed
Cases ReferredMahomed Binsalim v. Fakira Mohommed
Excerpt:
- orderramabhadran, j.c. 1. in this review petition, i am requested to review the order passed by my learned, predecessor on 4-6-1951, allowing second appeal 6 of 1950, brought by mt. saradhu against the appellate decree of the learned district judge of bilaspur. review is sought on the following two grounds: firstly, that subsequent to the decision of ny learned predecessor, the petitioner has discovered an important piece of documentary evidence, namely, an entry in the bahi alleged to have been executed by thutha, husband of mt. saradhu, and his brother, naurata, in favour of one basia on 23rd bhado 1970 s. it is claimed that this entry indicates that thutha and naurata borrowed rs. 300/- for purchase of their share in the suit land. secondly, that my teamed predecessor acted illegally.....
Judgment:
ORDER

Ramabhadran, J.C.

1. In this review petition, I am requested to review the order passed by my learned, predecessor on 4-6-1951, allowing second appeal 6 of 1950, brought by Mt. Saradhu against the appellate decree of the learned District Judge of Bilaspur. Review is sought on the following two grounds: Firstly, that subsequent to the decision of ny learned predecessor, the petitioner has discovered an important piece of documentary evidence, namely, an entry in the Bahi alleged to have been executed by Thutha, husband of Mt. Saradhu, and his brother, Naurata, in favour of one Basia on 23rd Bhado 1970 S. It is claimed that this entry indicates that Thutha and Naurata borrowed Rs. 300/- for purchase of their share in the suit land. Secondly, that my teamed predecessor acted illegally in rejecting the statement made by Mt. Saradhu on 11th Poh 1977 before the Ijlas-i-alia at Bilaspur.

2. I have heard learned counsel for the parties. As far as the entry in the Bahi dated 23rd Bhado 1970 S. is concerned, learned counsel for the petitioner argued that it would turn the scales definitely in his client's favour and further that despite due diligence, he (the petitioner) could not produce it at the trial. According to the contents of the affidavit, filed along with the petition, the petitioner discovered this document only on or about 12-8-1951.

3. To this, learned counsel for the contesting respondent rightly pointed out that the-suit, which gave rise to the second appeal and the present review application, was instituted on 9-6-2005 (corresponding to 1948 A. D.). The suit was decreed by the trial Court on 18-11-1949. The defendants went up in appeal to the District Judge, who allowed the appeal on 27-6-1950. The plaintiff then filed a second appeal to this Court on 26-8-1950, which was allowed by my learned predecessor on 4-6-1951. The document, now sought to be admitted, pertains to the year 1970 S. (corresponding to 1915 A. D.) As was held by their Lordships of the Privy Council in--'Shivalingappa v. Revappa', AIR 1915 PC 78 (A) :

'Where an application for the reception of new evidence was made after a final judgment in a suit which had already lasted for a period o{ over three years.

Held, that it cannot be allowed in absence of sufficient reasons.'

The petitioner has not been able to convince me that despite clue diligence, he could not produce earlier the Bahi entry now sought to be relied upon. A baie assertion in the affidavit that he could not produce the document earlier will not do. As already stated, the suit was decreed by the trial Court on 18-11-1949. If, for any reason, the existence of the present evidence was unknown earlier, surely, that was the proper time when the petitioner should have exercised the utmost diligence to trace out any documentary evidence that would support his case.

In 'Pyare Lal v. Chhotey Lal', AIR 1942 All 82 (B), Braund J., pointed out: 'Application under Order 47, Rule 1 must be treated with a considerable measure of caution. That is a matter of public policy as it is obviously necessary that, save in exceptional circumstances, finality in litigation should be achieved at some point. The person who wants a review should at least prove strictly the diligence he claims to have exercised and also that the matter or evidence which he wishes to have access to is, if not absolutely conclusive, at any rate, nearly con-elusive of the matter. It is not the proper function of a review application merely to supplement evidence or to make it serve the purpose merely of introducing evidqaiee which might possibly have had some effect on the result. Order 47, Rule 1 requires a high standard of diligence.'

4. To sum up, therefore, I am not satisfied that the petitioner could not produce the document earlier despite exercise of due diligence.

5. Coming to the other ground relied upon bythe petitioner, namely, my learned predecessorsrejection of the statement made by Mt. Saradhuon 11th Poh 1977 S. before the Ijlas-i-alia, I maypoint out that the lower appellate Court, namely,the District Judge of Bilaspur, himself, held thatthe statement had not been proved and, accordingly,refused to consider it. My learned predecessor,while holding that the statement, was rightly discarded, pointed out that the rejection should havebeen on the score that the plaintiff had not beencontradicted with the earlier statement, under Section 145, Evidence Act.

Learned counsel for the petitioner relied upon--'Malik Des Raj Faqir Chand Firm v. Firm Piara Lal Aya Ram', AIR 1946 Lah 65 (FB) (C), where their Lordships of the Lahore High Court held as follows :

'An admission is a relevant piece of evidence and can be used as legal evidence against a party even in cases where the party appears in the witness-box but makes no statement inconsistent or contradictory to that admission and a denial of that admission is not involved in the statement made by the party in the witness-box by considering the statement as a whole. In this case, there is no conflict between the sworn word in Court and the previous admission and the case is, therefore, outside the ambit of Section 145, and therefore it follows that it is outside the rule laid down in--'Bal Gangadhar Tilak v. Shrinivas Pandit', AIR 1915 PC 7 (D).'

This ruling, however, is not applicable to the facts of the present case, because Mt. Saradhu, during the course of her statement at the trial deposed that while her husband, Thutha, was joint with his brothers, they had no share in the suit land. That was the proper stage to confront her with her earlier statement. But, for some reason, this was not done. There is thus no error apparent on the face of the record as far as my learned predecessor's judgment is concerned.

Even if for the sake of argument, we assume that my learned predecessor has taken an erroneous view on a debatable point of law, even then a review cannot be granted. In this connection, please see--'Sanja Bai v. Sm. Bhagwati Bai', AIR 1955 Ajmer 2(2). (E), where it was held : 'A review cannot be granted only because the Court might take a different view of the same facts or because the judgment has taken an erroneous view on a debatable point of law or even on the ground that the judgment is wrong.' A similar view was taken by the Patna High Court in -- 'Madho Saran Choubey v. Sheobachan Pandey', AIR 1955 NUC (Pat) 1024 (F), where it was held that:

'The words 'for any other sufficient reason' are ejusdem generis with the words of this rule. Therefore, a review cannot be ordered simply because the view taken is erroneous in law.' A similar view was also taken by the Hyderabad High Court in--'Mahomed Binsalim v. Fakira Mohommed', AIR 1953 Hyd 239 (G).

6. The result is : this review petition fails and is rejected with costs assessed at Rs. 25/- payable to the contesting respondent.


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