IN RE: NANDKISHORE IN NANDKISHORE Vs. ANWAR HUSSAIN

JUDGEMENT

(1.) This is an application for review of judgment passed in a second appeal by a Bench of this Court of which one of us was a member on the 12th of December, 1907. The grounds on which a review of judgment is sought are that since the disposal of the appeal documentary evidence has been discovered which, if sufficiently proved, would have satisfied the Court below that a receipt for money relied on by it was a spurious receipt. It is needless to say that in second appeal the Court is bound to accept the findings of fact of the lower appellate Court, and that Court in this instance found that the receipt relied on was genuine. If on the hearing of the appeal this new evidence had been discovered, it might have been open to this Court to allow the appellant to withdraw the appeal with a view to apply to the lower appellate Court for a review of judgment on the ground of the discovery of fresh evidence. But unfortunately for the appellant the evidence was not discovered until sometime had elapsed after the dismissal of the appeal. It appears to us to be clear that this Court, if the new evidence had been brought before us before judgment was delivered, could not have considered its weight, nor was it open to this Court to remand the case to the lower appellate Court with a view to the consideration of the documents alleged to have been recently discovered. Under the circumstances we think that the application for a review of judgment on the ground of the discovery of new evidence is clearly untenable. We are not disposed to think that any authority for this is necessary. But if such were required, we have it in two cases decided in the Calcutta and Madras Sigh Courts. In the case of Panchanan Mookerjee v. Radha Nath Mookerjee 4 B.L.R.A.C. 213 it was held by Mr. Justice Loch and Mr. Justice Mitter on application for review of a judgment passed by the High Court in a special appeal confirming the decision of the lower appellate Court on the ground of discovery of new evidence, that though this might be a ground for moving the lower appellate Court for a review of its judgment, it was not a sufficient ground for asking for a review of a judgment passed in special appeal. In the case of Ranu Kutti v. Mamad 18 M. 480 Collins, C.J. and Parker, J. decided a similar point. The plaintiff who was appellant in second appeal sought a review of judgment on the ground of the discovery of new and important evidence from which it would, it was said, appear that the properties in dispute in the litigation were not under attachment, at the date of the mortgage, the subject-matter of the suit. It was held that the application for review could not be entertained for the reason that the ground relied upon could not be successfully relied upon in second appeal. Their Lord ships say: "In this case the second appeal has been, heard and decided, and we can no longer permit the appeal to be withdrawn, nor could we in second appeal admit evidence, of fact which was not before the lower appellate. Court". We think that the application for a review of judgment on the ground of the discovery of new and important evidence necessarily fails. But a further point, which we may call trivial has been raised by the learned Advocate for the applicant. In the judgment of this Court referring to the receipt, which is now alleged to be a spurious receipt, the Court observes: "On the 25th of December 1902, a sum of Rs. 1,520 was paid in advance for rent by the lessee to the lessor on demand made by the lessor in pursuance of the provisions in the lease to which we have referred. This payment, it is found satisfied the rent payable up to the end of 1314 F." An objection is raised to the statement that "this payment satisfied the rent payable up to the end of 1314 F." The Court did not arrive at any finding of fact as to, this no did it intend to do so. But interpreting the judgment of the learned District Judge, the statement referring to the payment was inserted in the judgment. It in no way affects the judgment, nor could it in any way be regarded as res judicata so far as the rent was concerned for which the suit had been brought. Lest, however, there may be any misapprehension, we think it desirable to omit from the judgment altogether the words to which objection is taken. We accordingly direct that the words, "this payment it is found satisfied the rent payable up to the end of 1314 F." be struck out. As the applicant has substantially failed, he must pay the costs of the application.