CHAIRMAN VIDYANAGAR CHURCH Vs. DOSAPATI RAJARATNAM

JUDGEMENT

(1.) This appeal has been filed under Order 43 Rule 1 clause (W) C P C against an order reviewing the decree of dismissal of the suit made in O S No. 1335/80. The facts leading thereto are briefly stated hereunder: Against the election to the Paris Committee of Vidyanagar Church Council of C S I Church, an application was stated to have been filed to set as de the said election before the Chairman of the said Church. The Chairman set aside the election. As against the order setting aside the election to the said committee, the aforestated O S No. 1335/80 was instituted seeking a declaration that the order of the 2nd defendant dated 30th September, 1980 setting aside the election to the Paris Committee was illegal, inoperative and not binding on the plaintiff. The suit was numbered and summons were issued to the defendants. But before they entered their appearance a memorandum was stated to have been filed by the plaintiff informing the court that the 2nd defendant had given an assurance to him that he would set right the wrong (in the assumption of the plaintiff) and that on the faith thereof he seeks to withdraw the suit. Accordingly he prayed for dismissal. Acceding to the request the suit was dismissed. Against this decree of dismissal of the suit the present application being I A No. 5645/80 has been filed to review the said order alleging inter alia that the 2nd defendant went back on the promise and that thereby he was prevented from prosecuting the suit. According to him, it is the discovery of this fact that constitutes cause of action for him to lay the present application for review of the said order. The lower court acceeded to the said contention and allowed the petition and set aside the decree for dismissal. Against this order the present appea! has been filed.

(2.) Sri Satyanarayana Prasad, learned counsel for the appellant contends that sub-clause (c) of Rule 1 of Order 47 of C.P.C. is not available for the respondents to invoke for the reason that it is not a subsequent discovery of fact within his knowledge and that therefore, the order of the lower court is clearly illegal. Though the respondent were served on 8-6-1981 so far none have entered appearance nor they personally appeared yesterday or today when the case was called on for hearing. In order to appreciate this contention it would be necessary to consider the provisions of Order 47 Rule 1 (1) Clause (c) C.P.C. It adumbrates that any person considering himself aggrieved by a decree who desires to obtain a review may apply for and show that 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 and prove the same that the decree is thereby vitiated. The court should be satisfied of the same, but Rule 4 (2) declares that where the court is of opinion that the application for review should be granted, it shall grant the same provided that the conditions prescribed in clause (b) of the second proviso are satisfied. It posits that no such application shall be granted on the ground of discovery of new matter or evidence which the applicant alleges was not within his knowledge or could not be produced by him when the decree or order was passed and made without strict proof of such allegations. Thus this rule enjoins that the important evidence or matter which the applicant subsequently discovered should be strictly proved as a condition to set aside the decree sought to be reviewed. In this case, admittedly this is not a subsequent discovery of an important or new fact or evidence which was available at the date of dismissal. Indisputably he laid the suit to set aside the decree. Even before the defendants entered their appearance a memorandum was filed praying the court to dismiss the suit. It would appear that it is self-serving statement appears to have been made before the court that the 2nd defendant is said to have given a promise to set right the alleged wrong. But no material has been placed before the court to substantiate that fact nor he entered into the witness box to submit himself either for cross-examination or give evidence in proof there. Averment does not take the place of evidence unless it is either admitted by the party in opposition or proved. The legislature intended that all such types of allegations would be acted only on strict proof.

(3.) The language employed is in negative mandatory form, viz., "no such application (application for review), shall be granted without strict proof of such allegation". It means that the allegation is to be proved in the manner prescribed under the Evidence Act. Sec. 3 of the Evidence Act defines the words "Proved", ''Disproved" and "not proved" thus : "Proved"-A fact is said to be proved when after considering the matter before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist". "Disproved"-A fact is said to be disproved when after considering the matters before it the court either be- lives that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist". "Not proved,'-A fact is said not to be proved when it is neither proved nor disproved."