ABED KHONDKAR Vs. MOHENDRA LAL DE

JUDGEMENT

(1.) This is an appeal under the Letters Patent from a judgment of Mr. Justice Nalini Rinjin Chatterjea, before whom the case came by way of appeal from an appellate decree. The question that arises is as to the competence of an Appellate Court to question the propriety of a review granted by the Court of first instance, on the ground that the evidence in support of the application should not have been believed.

(2.) This suit is one for rent, and in the first instance it was decided adversely to the defendants contention. The defendants, as a result of what appeared in the course of the trial, became aware of some new and important matter or evidence and as a result of that made an application to the Court of first instance for a review. The review was granted, because it appeared to the Court that there was strict proof of the allegation of the discovery of new and important matter or evidence not within the knowledge of the applicants and because that s rict proof convinced the Court of first instance. The result was that the review having been granted, the case was re-heard and a decree passed favourable to the defendants. From that decree an appeal was preferred by the plaintiffs, who objected not only on the merits but on the ground that the review should not have been granted. The lower Appellate Court has dealt with the second of these contentions and has held that the review was ultra vires or beyond the jurisdiction of the Court of first instance, so that the first decree was restored. The position of the defendants became this; that the decree in their favour was set aside and the first decree stood without their having any right to apneal therefrom. Prom this decree of the lower Appellate Court there was an appeal to this Court, which was heard by Mr. Justice Nalini Ranj an Chatterjee to whom it appeared that the decision of the lower Appellate Court was correct, and it is in these circumstances that the matter now comes before us by way of appeal under the letters patent.

(3.) The propriety of the course adopted by the learned Judge of first instance in granting the application for review is to be determined , by reference to the provisions of the old Code which are substantially reproduced, though with a slight variation, in the present Code. Section 623 permits an application for a review of a judgment and provides that it may be made by any person considering himself aggrieved, who from 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 or order made, desires to obtain a review of1 the decree passed or order made against him. It is only with that part of the section that we are now concerned. Section 624 provides that, "Except upon the ground of the discovery of such new and important matter or evidence as aforesaid, or of some clerical error apparent on the face of the decree, no application for a review of judgment, other than that of a High Court, shall be made to any Judge other than the Judge who delivered it." Section 626 provides that, If it appears to the Court that there is not sufficient ground for a review, it shall reject the application. If the Court be of opinion that the application for the review should be granted, it shall grant the same, and the Judge shall record with his own hand his reasons for such opinion: Provided that (a) no such application shall be granted without previous notice to the opposite party, to enable him to appear and be heard in support of the decree a review of which is applied for; and (6) 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 adduced by him, when the decree or order was passed, without strict proof of such allegation; and (o) an application made under Section 624 to the Judge who lelivered the judgment may, if that Judge has ordered notice to issue under proviso (a) to this section, be disposed of by his successor." It is only necessary now to refer to Section 629 which provides that, "An order of the Court for rejecting the application shall be final; but, whenever such application is admitted, the admission may be objected to on the ground that it was--(a) in contravention of the provisions of Section 624, (6) in contravention of the provisions of Section 626, or (c) after the expiration of the period of limitation prescribed therefor, and without sufficient cause. Such objection may be made at once by an appeal against the order granting the application, or may be taken in any appeal against the final decree or order made in the suit." No provision is made in Section 588 of the old Code for an appeal from order in the case of an order granting a review; and the power to appeal, such as it is, rests on Section 629 alone. It is in that respect that there is a slight difference betweenthe old and the present Code.