Beni Madhab Ghose vs Ganga Gabind Mandal

L.S. Jackson, J.—The question that we have to consider in the present application is one which we have often considered before, and upon which I for my part have, and as I understand most of the other Judges also have, expressed a decided opinion. It is, whether in a case, an appeal having been carefully considered by this Court on a point of law argued at length, and the Court having come to a deliberate conclusion on that point, the party dissatisfied with the judgment of this Court, has an absolute right to be heard by fresh counsel in an application for review, merely for the purpose of convincing the Court that its first opinion upon that point of law was erroneous. Mr. Paul contends that a party has such right, and declares that such right is perfectly clear. I can only say that it appears to me to be quite clear the other way. Eights of parties and the duty of the Court, in dealing with petitions of reviews must be gathered, if anywhere, from sections 376 and 378 of the Procedure Code (reads).

It seems to me clear that the only case in which the Court is bound to grant a review is where it shall be of opinion that the review desired is necessary to correct an evident error or omission, or is otherwise requisite for the ends of "justice."

Mr. Paul contends that his object in this case is to correct an evident error in law, in the judgment of the Court. It is necessary therefore to consider what can be called an evident error. Can it be said that an error which is capable of being established by a lengthened argument upon a point which admits of two opinions is an evident error? I think not.

It appears to me that the word evident is used in the same sense as it is in a passage to which the Chief Justice (whom I have just had the advantage of being able to consult) has referred me in the second volume of Maddock''s Chancery Practice, page 484, title "Re-hearing," I think the word evident means merely that which is manifest, patent, or obvious, and it is only where the Court has fallen into an error of that description that it is bound to grant a review.

Mr. Paul refers us to a ruling of Peacock, C.J., and Mitter, J., in Koh Poh v. Moung Tay 10 W.R., 113 on a reference from the Recorder of Rangoon. In that case the Recorder, after stating the nature of the case in which the point arose, says:--It seems to me that the ground set forth by Mr. Agabeg is a ground for an appeal, instead of a ground for review, and I find that the Chief Justice, in the case of Nusseerooddeen Khan v. Inder Narain Chowdhry 1 Ind. Jur., N.S., 147, held that the fact of the Court below having decided against the weight of evidence is a ground for appeal, and not for review, and His Lordship goes on to say (see page 149) that the attempt has frequently been made for the purpose of having the case re-argued by fresh counsel, when parties have been dissatisfied with the first decision. . . . . I would therefore request the opinion of the High Court, whether an error in a point of law is a ground for review of "judgment."

On that the Chief Justice was of opinion "that an error on a point of law is a ground for a review of judgment."

In eon sequence of this case being cited in argument, I have thought it right to consult the Chief Justice, in order to learn whether he intended to go so far, as these words might be held to imply. The result of that communication is that I believe myself authorized to state that what the Chief Justice really intended to say on that occasion was not that an applicant for review was entitled to a fresh argument on a point of law; but that if the Judge should be satisfied that he had committed an error in law, so that his own conscience should prompt, and as it were compel, him to rectify such error, it would be quite in accordance with the Procedure Code that he should do so, and in this I fully agree.

Mr. Paul says if this be the correct view, sections 376 to 378 may as well be struck out of the Code. I think not, and I believe those sections capable of doing very useful service. But I may observe that, if parties had a right to re-argue the same points over and over again (for they are not limited to a single application), it would be simply impossible to carry on the business of the Courts, and I am sure the Legislature never contemplated any such thing.

I must therefore decline to admit the right claimed by Mr. Paul of re-arguing this case for the purpose of convincing us that the conclusion at which we deliberately arrived on a point of law, was not the conclusion at which we ought to have arrived.

There is, however, a manifest error in the decree in this case relating to the quantity of land which might very well have been set right in simple routine, but which I think ought to be corrected, and that correction, as pointed out, may accordingly be made, but without costs.

Markby, J.

I am of the same opinion. I think it quite clear that no person has a right to call upon the Court to hear a fresh argument upon a question which has been already submitted to it, and which it has determined. Were it otherwise, litigation would be absolutely interminable; and though the language of this part of the Code might have been more clear and precise, I am quite sure this was never intended.