Rasunuddin Mia vs Raisaheb Dr. Henn Chandra Das

H. Deka, C.J.—This is a petition for revision u/s 115 , CPC challenging the decree passed by the Additional District Judge, Nowgong dated 21st July 1960 upholding the order of the learned Subordinate Judge, Nowgong Sri D. Chaudhury dated 14-7-59, allowing the review of a decree passed by him in Money Appeal No. 6/56 on 26th September 1958.

The short facts are that the plaintiff Hat Saheb Dr. Hem Chandra Das instituted Money Suit No, 108/55 against the defendant petitioner which was decreed by the Munsiff, Tezpur for Rs. 842/- but on an appeal by the defendant the decretal amount was reduced by the Subordinate Judge, Nowgong to Rs. 342/- and he rejected the claim for a sum of Rs. 500/- which he considered to be paid by one of the defendants to the plaintiff. The plaintiff respondent then made an application for review of the appellate court judgment to the Subordinate Judge who disposed of the money appeal praying that the decree in the suit may be modified and the trial court''s decree restored in the light of the facts stated in the petition.

The learned Subordinate Judge accepted the review petition and directed that the suit should be reheard by the trial court. The defendant preferred an appeal against this order of the Subordinate Judge, but the Additional District Judge who heard the appeal, dismissed the same. It is against this judgment of the learned Additional District Judge that the present petition in revision has been filed.

I have perused the application for review as well as heard the learned Advocates appearing for the parties. The point for review was under a short compass. An application for review was filed on 10-2-1959 by the opposite party in Money Appeal No. 6/56 wherein the main objections were to the effect that the learned Subordinate Judge misjudged the appeal on facts.

The pertinent portion of the appellate court''s judgment was to the effect that the plaintiff admitted in his cross examination that the defendant Rajaram was to get some payment from the Tezpur Municipality and that on plaintiff''s request the Chairman of the Municipality deducted Rs. 500/- from Rajaram''s bill and sent the amount of Rs. 500/- to him which the plaintiff alleged, was adjusted against some other claim which the plaintiff had, and in respect of which a separate suit, namely Money Suit No, 23/55 was filed in the court of the Subordinate Judge having territorial jurisdiction.

The learned Subordinate Judge held that the (sic) was on the plaintiff to prove that the amount (sic) Rs. 500/- so received was actually adjusted by the plaintiff as admitted by him, but the learned (sic)dinate Judge held that there was no material for him to show that the money was so adjusted.

In the circumstances, the Judge presumed that no benefit was given to the defendant in respect of the sum of Rs. 500/- drawn from his credit in the Municipality. He accordingly rejected the plaintiff''s plea to that extent and deducted that sum from the amount claimed by the plaintiff in the suit under appeal.

In the review petition as many as twelve grounds were taken for review though as a matter of fact in my opinion, there was no ground which could invoke the jurisdiction of the court under Order 47, Rule 1, CPC which was pertinent. The learned Subordinate Judge took note of two grounds, namely ground Nos. 8 and 12 set out in that petition and they were as follows:

That the case record of the above suit No. 23/55 was in this Court but could not be produced at the time when the decrees in the appeal was passed. And this may please be called for and inspected and justice may please be done in the matter,

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That there was no issue for plaintiff to prove this payment and the burden was on defendant to prove payment to the handnote in question. The learned Subordinate Judge while discussing these two points found that there was no substance in the first ground, namely as to the non-availability or non-production of the records of Money Suit No. 23/55 of the Subordinate Judge''s Court at Tezpur. In regard to the second contention he held that proper issues were not framed, namely as to whether the payment of Rs. 500/- as set up by the defendant was true.

For the purpose of deciding the scope of jurisdiction of the court in matters of review it is necessary to refer to Order 47, Rule 1, CPC which runs as follows:

(1) Any person considering himself aggrieved--

(a) by a decree or order from which appeal is allowed, but from which no appeal has been preferred,

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and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order.

I have quoted above only the relevant portion of the rule. In this case it is found by the learned Subordinate Judge that it was possible for the plaintiff to prove or produce the record of the Money Suit No. 23/55 and therefore neither the first clause nor the second clause applied. The third clause referring to mistake or error apparent on the face of the record, is also not applicable. Therefore the only point for investigation was whether there was any other sufficient reason. It is well established Jaw that "sufficient reason" in the present context would mean any reason similar to or ejusdem generis with the reasons covered by all or any of the above three clauses. Therefore the court ought to have been satisfied that any such reason existed before allowing the application for review.

The learned Subordinate Judge put an emphasis on the fact that no proper issue was framed in the original suit but that could not in my opinion be a ground coming within any of the above three clauses, indicated above. For any error or mistake if a review has to be allowed, the mistake must be apparent on the lace of the record and not as a consequence of a wrong judgment or a wrong inference. Utmost what could be said is that there was no material on record entitling the Subordinate Judge to draw an inference against the plaintiff for non-production of the record of the Money Suit No. 23 of 1955, but though that could be a good ground for an appeal, it could not be a valid ground for review.

The learned Additional Judge hearing the appeal did not pay any attention to the competence of the application for review but he came to the finding that it would be giving double benefit to the defendant if the plaintiff''s claim of Rs. 500/- was rejected, -- since he claimed to have given a rebate for this amount in Money Suit No. 23/55. That finding can be arrived at only after receiving additional evidence but not on the evidence as already on record. The learned Additional Judge further held that the court had an inherent power to revive a suit for fresh hearing, when it appeared to the Court that there had been a miscarriage of justice.

I must say that this is a proposition not supported by law or statute. The courts had to investigate first whether an application under Order 47, Rule 1, C. P. C. would lie. In the above view of the circumstances I find that the application for review was wrongly allowed and the decree passed in Money Appeal No. 6756 was wrongly interfered with. In that view of W matter I allow the revision, set aside the judgment of the Additional District Judge dated 21st July 1960 affirming the judgment of the Sub-ordinate Judge dated 14-7-59 and restore the decree of the Subordinate Judge passed in Money Appeal No. 6/56. In view of the circumstances however, I make no order as to costs.