Syed Mohammad Ismail vs Janaki Saran Singh and Others

Courtney-Terrell, C.J.—This is an application under Order 47, Rule 1, Civil P.C., for a review of a judgment in Janki Saran Singh and Others Vs. Mohammad Ismail and Others, delivered by a Bench of this Court consisting of Ross, J., and Jyotirmoy Chatterji, J. The application for review was admitted for hearing by Ross, J., Chatterji, J., having at that time ceased to be a member of the Court, and the notice was issued and the matter has been argued before us by Mr. Hasan Imam on behalf of the applicant as to whether a review can or cannot be heard upon the grounds urged by him. The grounds which he has urged are three in number.

To deal with the first ground it appears on his exposition of the facts that when the case was argued before the Bench the learned Judges reserved judgment and when they came to deliver judgment they based their decision upon principles of law which they said were supported by certain decisions in the English reports. As a matter of fact those decisions in the English reports were not referred to in the course of the hearing of the case and we are assured by Mr. Hasan Imam, and it may be true, that he could have shown, had he had the opportunity, that those cases did not support the principles of law as laid down by the learned Judges and had nothing to do with the case. For the purposes of this decision I will assume that he would have been able to establish that contention, although we have had no opportunity of deciding the merits of the case. That fact even if it be established is not one of the facts which entitles a party to a review of judgment.

The grounds upon which a review can be allowed are stated in Order 47, Rule 1. The fact which I have referred to does not come under the head, and admittedly does not come under the head of discovery of new and important matter or evidence nor does it come under the head of mistake or error apparent on the face of the record and there is a long series of decisions which lay down the principle that the words "any other sufficient reason" are ejusdem generis with the words of the section. In my opinion therefore the fact that the judgment purports to rely upon decisions to which the advocates at the trial had no opportunity of referring is not a ground for review. I may here say that it is a well established principle that if there comes to the knowledge of the Court cases which in their opinion establish that one party or the other is entitled to a decision, that ordinarily, unless the cases are statements of elementary principles, the side against whom the decision is to be given, on the basis of those cases, should be given an opportunity of dealing the cases, and it might have been better, assuming that Mr. Hasan Imam is right in his contention of law, that Ross, J., should have set down the case, on discovery of these cases, for further argument based on those decisions, but the course taken does not come within the class of circumstances which give an applicant a right to a review of the decision.

The second point was based upon a passage in the judgment in which the learned Judges said that one of the contentions of law raised by Mr. Hasan Imam did not call for decision because whatever the right view upon that contention Mr. Hasan Imam''s client had a remedy under a certain section of the Transfer of Property Act. Mr. Hasan Imam''s contention is that he would have been able to show to the learned Judges that in fact that particular section did not give him a remedy and that the learned Judges were wrong in thinking that he had any remedy under that section and therefore it was incumbent upon the Judges to have decided the first contention that I have mentioned. That again is merely another way of saying that the learned Judges proceeded upon faulty logic for coming to their conclusion and in any event were wrong in law. Now neither of these two arguments can be used to support an application for review.

The third point is that there has been an error of record apparent upon the face of it. The point may be shortly stated thus. The suit was a mortgage suit and there were two claims for relief. One of the claims was undoubtedly a claim not for relief against the defendants personally but for an ordinary mortgage relief by sale of the property. The second claim set forth in the plaint may possibly be a claim of the ordinary mortgage character and not be a claim for personal relief. On the other hand its construction is a matter which requires some examination.

It is perfectly clear that the District Judge before whom this matter came on first appeal had placed before him the contention of the plaintiff that the plaintiff was entitled to a personal decree and the District Judge considered that contention and disallowed it. The matter was again raised by the plaintiff before Ross, J., and Chatterji, J., and they apparently took the other view and came to the conclusion that a personal decree should be granted. Now Mr. Hasan Imam wishes to refer to the plaint for the purpose of showing that the claims were for mortgage relief only and not for personal relief and to demonstrate that the learned Judges had failed to appreciate that fact and if they had appreciated it which he says is apparent on the face of the record, they would have come to another conclusion.

The matter having been decided by the District Judge and having been clearly re-argued before the two Judges who heard this case in second appeal it is clear that whether they took the right view of the construction of the plaint or not they did give attention to the point and they gave judgment for a personal relief. All of the matters which have been placed before us were matters which might properly have been placed before a Court of appeal if any Court of appeal had jurisdiction to deal with the decision, but they are none of them matters which come within the legitimate grounds which can be urged in support of an application for review. In my opinion therefore this application should be dismissed with costs.

Rowland, J.

I agree.