MADHORI SARAN Vs. PARBATI

JUDGEMENT

(1.) THIS is an appeal from an order granting a review of judgment on the ground of due discovery of new and important evidence which the defendant could not by exercise of due diligence have discovered earlier. The new and important evidence consisted of a certified copy of a sale-dead of the year, 1878 alleged to relate to the land in suit the question arises whether the appeal comas within the terms of Order 47, Rule 7 of the Civil Procedure Coda the right of appeal conferred by Order 43, Rule 1(w) is not an unlimited right, but is subject to the conditions of Order 47, Rule 7; Vide Khurshed Alam Khan V/s. Rahmatullah Khan (1917) 40 All. 68 and Nandlal Mullik V/s. Panohanan Mukerjee (1918) 45 484. In this case the appeal, if allowable at all, comes under Clause (b) of Section 7 of Order 47 on the ground that the review was admitted in contravention of Rule 4. Now, the learned pleader for the Appellants has not been able to dispute the finding of the learned Subordinate Judge that it was not within the power of the applicant in spite of due diligence, to produce at the trial the evidence on which she now relies. His contention is that it is not clear on the face of the sale-deed that it relates to the land in suit. THIS is a point which the learned Subordinate Judge has not decided. He evidently considered prima facie that it did appear to refer to this land, for he says that the admission of the document changes the whole aspect of the caae. At the same time he recognized that it was not fair to decide the point as an appellate Court without giving the other side an opportunity to rebut the evidence. He accordingly sent back the case for decision of the issue on the merits after allowing the respondent to produce rebutting evidence. THIS appears to us, under the circumstances, to have been a proper order to pass. The question can only be decided when the document is read along with the other evidence in the case. The evidence has not been laid before us, and we are not in a position at this stage to express any opinion on the question.

(2.) IN one respect the order of the Court below is open to objection. At the hearing of the appeal the defendant raised a point as to the effect of a certain partition on the plaintiff's claim. This was a new point raised in appeal, and the learned Subordinate Judge had held in deciding the case that it could not prevail in the absence of the evidence necessary to substantiate it. IN his order admitting the review the learned Subordinate Judge has permitted the defendant to adduce evidence on this question also. For this there is no justification. The point was never raised at the trial at all, and the defendant ought not to be allowed in review to raise a case which was never raised at the trial, and on which no evidence was adduced. We accordingly set aside that portion of the lower Court's order which allows the defendant an opportunity of establishing her contention regarding the partition. IN other respects the appeal is dismissed. We make no order as to costs as the respondent is not represented.