PATTAN AHMED KHAN Vs. PYDA VENKATACHELAMAYYA

JUDGEMENT

(1.) This is an application to revise the decision of the learned District Judge of Nellore in C.M.A. No. 53 of 1940. The learned District Judge was disposing of an appeal from an order passed by the learned District Munsif of Kavali granting an application for review. The applicant before the District Munsif was the first defendant in O.S. No. 211 of 1931. That suit was decreed on 23 December, 1935 and steps were taken in execution and in 1938 shortly before the hypotheca was to be sold the first defendant applied for review of judgment. He alleged that he had discovered a receipt dated the 9 November, 1928 for Rs. 450. He said that he had been unable to discover this in time to produce it alt the trial and he has therefore prayed for review of judgment in order that this additional evidence might be admitted and taken into consideration. The learned. District,, Munsif had to deal with three applications. One was an application for leave to file a petition for review in forma pauperis, another was to excuse delay in filing the application for review and the third was for the review itself. The learned District Munsif granted all these applications. He excused the delay on the ground that the petitioner had not been able to have access to the additional evidence earlier than the date which he himself had given. The learned District Judge on appeal thought that the District Munsif had excused the delay on very flimsy grounds and also that the order allowing review on the ground of discovery of new and additional evidence was not justifiable.

(2.) Learned Counsel for the petitioner has drawn my attention to the case of Ahid Khondkar V/s. Mahendra Lal De (1915) I.L.R. 42 CM. 830 in which it has been held that on appeal under Order 47, Rule 7, Civil Procedure Code the appellate Court is powerless to interfere with a decision on a point of fact falling under Rule 4. Order 47, Rule 7 says that an order granting an application for review may be objected to on the ground that the application was (a) in contravention of the provisions of Rule 2, or (b) in contravention of the provisions of Rule 4 or (c) after the expiration of the period of limitation prescribed therefor and without sufficient cause. Such objection may be taken at once by an appeal from the order granting the application or in any appeal from the final decree or order passed or made in the suit. In Ahid Khondkar V/s. Mahendm Lal De (1915) I.L.R. 42 CM. 830 in dealing with the phrase strict proof in Order 47, Rule 4 (2) proviso (b) it was held that this merely meant formal proof, or evidence admissible in accordance with the strict provisions of law. This case was followed by the Calcutta High Court in two later cases reported in Nandalal Mullick V/s. Panchanan Mukerjee (1917) I.L.R. 45 Cal. 60 and Chiranjilal Ramlal V/s. Tulsiram Jankidas (1919) I.L.R. 47 Cal. 568 and also by the Bombay High Court in Bai Nematbu V/s. Bai Nematullabu (1918) I.L.R. 42 Bom. 295. With due respect to these learned Judges who have pronounced these judgments, it appears to me that they have not given sufficient weight to the word proof in Rule 4 (2) proviso (ft). There is a difference between proof and evidence . Proof is the effect produced upon the mind of the Judge by the evidence or evidence sufficient to satisfy the Judge to whom it is presented. A fact is said to be proved when the Court after considering all the matters before it comes to the conclusion that it exists or that a reasonable man ought to act upon the assumption that it does. exist. In Ahid Khondkar V/s. Mahendra Lal De (1915) I.L.R. 42 Cal. 830 it seems to be assumed that the words strict proof meant no more than evidence formally admissible, but I regret to say with all respect that I cannot accept this view. I see no reason why the Legislature should have used the words strict proof if the Legislature merely meant evidence strictly admissible . I see no reason why the Legislature should have wished to warn the Court not to base its decision upon anything other than evidence strictly admissible. It goes without saying, and it does not need to be laid down in any provision of the Civil P. C., that the Court cannot act except upon evidence which is strictly admissible. "With all respect therefore it seems to me that if the interpretation put upon these words by the learned Judges of the Calcutta High Court was correct, they would be quite otiose. The Legislature having used the words strict proof, I can see no reason why the appellate Court in deciding whether the conditions of Rule 4 have been complied with or not, should be precluded from seeing whether the evidence adduced before the lower Court amounted or did not amount to proof . I find that two single Judges of this Court have followed the decisions in Ahid Khondkar V/s. Mahendra Lal De (1915) I.L.R. 42 Cal. 830. Those decisions are reported in Seeramma V/s. Seshamma A.I.R. 1933 Mad. 217 and Muthuswami Naicker V/s. Chidambaram Chettiar A.I.R. 1939 Mad. 289. The learned Judges however have not discussed the matter; they have simply followed the decision in Ahid Khondkar V/s. Mahendra Lal De (1915) I.L.R. 42 Cal. 830. For the reasons already given I regret I am not able to do the same. There is no decision of a Bench of this Court on this matter so far as I am aware.

(3.) I am therefore unable to say that the learned District Judge exceeded his jurisdiction when he discussed the merits of the. petitioner's allegation that he had discovered new matter or evidence which was not within his knowledge or could not be adduced by him at the time of the trial of the suit. It appears to me that the learned District Judge had jurisdiction to decide that question as well as other questions.