Badri Das and Another vs Behari Lall Kamani and Another

Fazl Ali, J.—This is an application asking me to review a judgment which I delivered in Second Appeal No. 27 of 1937 (Cuttack) on the 26th April 1939. The main ground on which the review is sought is that since the decision of that appeal the petitioners have discovered some new evidence which notwithstanding due diligence they could not discover earlier. Mr. Manuk, who appears for the opposite party, raises a preliminary objection that an application for review does not lie on the above ground against a judgment delivered in a second appeal and he cites the following decisions in support of his argument: Nand Kishore v. Anwar Hussain (1910) 32 All 71; Raru Kutti v. Mamad (1895) 18 Mad 480; Bhyrub Nath v. Kally Chunder (1871)16 WR 112; Panchanan Mookerjee v. Radha Nath (1870) 4 Ben LRAC 213 . Sir Sultan Ahmad who appears for the petitioners has drawn my attention to the decision of this Court in Rai Brindaban Prasad Vs. Rai Banku Bihari Mitra and Others, in which a review was allowed on the ground of discovery of new evidence after a second appeal had been disposed of, but the question which has been raised by Mr. Manuk was neither raised nor expressly decided in that case.

He also referred me to an observation made by Subrahmania Aiyar J. in Gulam Mahade Vs. Ramakrishna Mudali and Another, doubting the correctness of the view that it is not open to the High Court to entertain an application for review in a second appeal on the ground of discovery of material evidence. In that case however Davies J. expressed a contrary view and so the observation of Aiyar J. is to be treated as more obiter dictum. The question is not free from difficulty and though I must admit that having regard to the fact that Section 114 as well as Order 47, Rule 1 being general in their terms, must be held to be applicable to second appeals also, I share the doubt expressed by Subrahmania Aiyar J. yet as at present advised I am not prepared to dissent from the long line of authorities which have been cited on behalf of the opposite party.

In any case the point need not be decided here as I am not prepared to grant the present application on its merits. The main ground urged in support of the application is that the petitioners were not able during the trial of the suit to procure a plan which had been sanctioned in 1918 under permit No. 97 and that they have now been able to trace that plan and other relevant papers which show that the construction of the plaintiff''s house was sanctioned not in 1905 as alleged by him but in 1918. The present application was filed on 1st August 1939 and it appears that all that was stated in the affidavit which was filed on that day was as follows:

That at the time of the trial your petitioners tried their level best to find out the plans and other documents submitted by the plaintiffs on which the said permit dated 20th March 1918 had been granted but owing to the mismanagement of the Cuttack Municipality your petitioners did not obtain any further documents.

The petitioners afterwards filed a supplementary affidavit on 5th September in which they stated that they had a private conversation with one Raj Kishore Misra, a witness examined on behalf of the plaintiff after he had been examined in Court on 19th November 1934 and in that conversation they asked him to search for the plan of 1918. Raj Kishore Misra being unable to trace the plan told them that it was not available and when the petitioners wanted to make a formal application for the search of the plan in the Municipality, Raj Kishore told them that it was futile to file any formal application for search when the papers searched for were not available. The petitioners have in support of their case filed an affidavit which purports to be sworn by Raj Kishore Misra on 14th September 1939.

Now, it appears to me that even if the statements contained in the affidavits before me are taken to be true, they do not show that the petitioners acted diligently in the matter.

It is conceded on behalf of the petitioners that they did not make any formal application to the Municipality for the search of the plan of 1918 and other? relevant papers, nor did they make any application in the trial Court or the lower Appellate Court to call for those papers from the Municipality. These courses were obviously open to them and in my opinion a diligent suitor should not have been satisfied merely with what Raj Kishore Misra told him in a private conversation. Thus one of the conditions necessary for granting the review is not established. The application is therefore rejected with costs. Hearing fee two gold mohurs.