AHED KHUND KAR Vs. MOHENDRA LAL DEY

JUDGEMENT

(1.) The question raised in this appeal is whether in an appeal against; a decree passed after granting a review of judgment on the ground of discovery of new matter or evidence which the applicant for review alleged was not within his knowledge or could not be adduced by him at the time when the decree was originally passed against him, it is competent to the appellate Court to try the question whether there was strict proof of the allegation as provided in Section 626(b) of the Civil Procedure Code, or whether the decision of the Court granting the review is final upon the question.

(2.) The plaintiffs brought a suit for rent at the rate of Rs. 18 per year, and obtained a decree at the rate claimed. The defendants applied for review of judgment under Section 623, Civil Procedure Code, on the ground that the defendants could not file certain documents when the case was taken up as they did not know that those documents had been filed in a previous suit. The Court admitted the review holding that the defendants had sufficient cause for not producing the documents when the case was heard and that the documents were not within their knowledge and could not be produced after the exercise of due diligence at the time, and reheard the case and set aside its previous decree and decreed the suit only at the rate of rent admitted by the defendants. The plaintiffs appealed and on appeal, the learned Subordinate Judge held that the allegations of the defendants were not strictly proved and as such the admission of the review was in contravention of the provisions of Section 626 Clause (b) of the Civil Procedure Code and he accordingly set aside the judgment of the first Court passed on review, and restored its first judgment.

(3.) The defendants have appealed to this Court and it is contended on their behalf, first, that the lower appellate Court had no power to go into the question whether the allegation of the defendants that the documents were not within their knowledge and could not be found with the exercise of due diligence, was strictly proved, that the decision of the Court admitting the review was final in the matter and reliance is placed upon the cases of, The Bombay and Persian 8. N. Company Limited v. The S.S. "Zuari 12 B. 171; Har Nandan Sahai v. Behari Singh 22 C. 3; Barada Churn Ghose v. Gobind Prashad Tewari 22 C. 934 and Munni Ram Chowdhry v. Bishen Perkash Narain Singh 24 C. 878.