MUSAMMAT TIRBENI KUNWAR Vs. MOHAN LAL

JUDGEMENT

(1.) This is an appeal against an order passed by the District Judge of Budaun, allowing an application for review of an appellate judgment in a case heard by him on the 18 of February 1920. The circumstances are somewhat peculiar. The suit was one for declaration and the plaintiff had lost in the Trial Court. On the day on which the appeal was down for hearing the plaintiff was in hospital, and on the day following he was operated upon, so that all his family were naturally in attendance upon him at the hospital. A week later he died, apparently without having left the hospital.

(2.) The applicant for review is the son of the original plaintiff-appellant. He name before the District Judge with a number of certified copies, apparently of public document?, which he said it had been intended to lay before the Appellate Court with a view to their admission in evidence under the provisions of Order XLI, Rule 27 of the Civil P. C.. He ascribed the failure to do this to his father's serious and fatal illness and the circumstances attendant thereon which have already been stated. The learned District Judge has passed an order granting review of judgment.

(3.) One thing seems clear and should be understood by the parties concerned. The order so far passed is merely an order for the re-hearing of the appeal, as it was heard on the 18 of February 1920, with liberty to the plaintiff appellant to make any application, as for instance, an application under Order XLI, Rule 27, Civil procedure Code, which could have been made on that date and might have been so made but for the serious illness of the then appellant. It is still left to the Court below to consider carefully whether a case is made out for the admission of fresh evidence under Order XLI, Rule 27 of the Civil Procedure Code, as well as the effect of the evidence thus tendered may have upon the decision, if it be accepted.