Kamla Prasad Chaudhuri vs Kunj Behari Mander

Dawson Miller, C.J.—This is an application by the plaintiff for a review of a decision of this Bench, dated the 2nd February, 1920. The decision, which it is sought to review, decided that a transfer of an occupancy holding, which was only transferable with the consent of the landlord, was liable to be set aside at the instance of the landlord to the extent of his proprietary share. It appears from the facts of the case that the holding was mortgaged to the 12 annas proprietors of the mauza, and was sold after a mortgage decree had been obtained by them against the occupancy holder, not in pursuance of that decree, but privately to the plaintiff in the suit, who was the holder of the other four annas proprietary share in the mauza.

It is contended before us in support of this application that the sale of the holding was really a sale in order to pay off the mortgage-debt due by the occupancy holder to his mortgagees, and that the money was used for that very purpose, and that therefore any objection by the landlords who were the mortgagees to the sale of the property in these circumstances would be a clog upon the equity of redemption. No authority has been quoted to us in support of the proposition that in the case of a mortgage to the landlords of a raiyati holding, where the holding is not transferable without the consent of the landlords, they are bound to permit the mortgagor to transfer the holding to anybody whom he may choose in order to put himself in funds to pay off the mortgage; but even assuming that this was a point of law which would probably be decided in favour of the present applicant, we have to consider in this case whether he has in fact disclosed any reason for allowing the present petition for review.

The facts of the case were known from the very start. The case itself is a very old one. It was instituted in 1911. It was remanded by the High Court at Calcutta for decision upon certain questions relating to the transferability of the holding and whether the defendants were estopped from questioning the plaintiffs'' title. That was some years ago, at all event before the year 1916, and the case came up after remand to this Court on appeal; and throughout that period it has never been suggested by anybody that the Refusal of the defendants, the 12 annas proprietors, to assent to the transfer of the property was a clog upon the equity of redemption. After all these years, when much money has been spent upon the litigation and after a decision has been given by this Court, we are asked to allow the plaintiff an opportunity of reviewing that judgment in order that he may put forward and argue this point of law.

In support of his application he has referred to the case of Nuri Miah Vs. Ambica Singh and Another, . That case appears to me to have gone very far. No special reason is assigned for granting the application for review in the judgment of the Chief Justice, but in the judgment of Mr. Justice Mookerjee it is laid down that, where a point of law might have been, but was not, raised in the Court below, that is good reason for allowing a review; and he goes further and says that in such a case "the alleged error, if it be an error, is apparent on the face of the record."

It may be that cases such as that ought in certain circumstances to be reviewed, but I cannot accept it as a rule of universal application, nor do I think that it necessarily follows, that in such cases it is an error apparent on the face of the record. It may be that in certain cases an application for review on the grounds which I have just referred to may be justified by the words in Order 47, Rule 1, which provide that a review may be granted "for any other sufficient reason." But I am not satisfied that the mere omission to raise a point of law, which, had it been raised might and probably would have brought about a different result, is necessarily a "mistake or error apparent on the face of the record" for which a review can be claimed.

There have been other decisions, one of which is of the Bombay High Court, in which a review was allowed also on the ground that an important question of law had not been raised in the case and it was a matter which affected the general commercial community of Bombay. In such a case it may well be that there were "other sufficient reasons" for allowing a review within the meaning of Order 47, Rule 1. But in the case of Gopal Chandra Lahiri v. Solomon (1886) 13 Cal. 62, the Chief Justice, Sir Richard Garth, decided that although it is difficult and perhaps undesirable to attempt to define precisely the meaning of the words any other sufficient reason in Section 623 of the CPC of 1882 (which corresponds now to Order XLVII, Rule 1), yet from the earlier part of the clause it is clear that a point which might have been, but which was not discovered at the trial by the exercise of due diligence, was not intended by the section to afford any sufficient reason for review.

It is obvious in this case that, if there is any real substance in the point which has now been urged before us that point might easily have been discovered and indeed ought to have been discovered by due diligence during the long and protracted course of this case; but nobody up to the present moment has ever considered the question or argued the point in any of the Courts before which the case has come; and it certainly does not appear to us that the matter is one of such general importance to the agricultural community of this province that we ought on that ground to admit the present application.

In my opinion, although there are cases where an application of this sort ought to be allowed, I do not think that the mere fact that a point of law which might have been raised was not raised in the case is necessarily in itself sufficient to entitle the applicant to have his case reviewed; and it would be a dangerous precedent if we were to lay down a general rule that in all such cases a review ought to be granted. There are no other special reasons that I can see in the present case which would entitle the applicant to have the case now re-opened. It does not affect the interests of anybody else except those immediately concerned. The question is not one which is, likely to crop up very frequently in the future and if it does then the matter can be decided.

In the present case it seems to me that no satisfactory reason has been made out for granting this application and it must he refused.

Coutts, J.:-

I agree.