SMT SELHA DEI Vs. KESHAB CHARAN MAHANTY

JUDGEMENT

(1.) This application for review of a judgment of this Bench in second Appeal No. 206 of 1989, decided on 24 February 1943 arises in the following circumstances: The plaintiff petitioner instituted a suit for a declaration that defendant 8 was not the validly adopted son of one Bhikari. A question arose whether the plaintiff, who was the half-sister of Bhikari, was entitled to maintain the suit. The plaintiff relied upon Section 2, Hindu Law of Inheritance Act of 1929, which defines what is meant by a sister for the purpose of that enactment.

(2.) Two decisions were cited before us, one of the Nagpur High Court and one of this Court. We followed the decision of this Court in Mt. Daulat Kuar V/s. Bishnudeo Singh A.I.R. 1940 Pat. 310 in which it had been held that the word sister in Section 2 of the Act does not include a half-sister. After our judgment in the second appeal had been delivered and signed, it was brought to our notice that the decision on which we had relied had been reversed by the Privy Council in a case which had not then been reported in the official reports, but a note of which was published in an unofficial journal. As our judgment had been signed, we were unable to deal with the matter at that stage. The plaintiff then made this present application for review of our judgment, contending that the fact of the reversal by the Privy Council of the decision on which we relied prior to the date of our judgment was a sufficient cause for reviewing our judgment within the meaning of Order 47, Rule 1. In Chhaju Ram V/s. Neki A.I.R. 1922 P.C. 112 the Privy Council held that the words any other sufficient reason in Order 47, Rule 1 mean a reason sufficient on grounds at least analogous to those specified immediately previously, that is to say, the discovery of new and important matter or evidence which, after the exercise of due diligence, is not within his knowlege, or could not be produced by him at the time when the decree was passed or order made, on account of some mistake or error, apparent on the face of the record. The correct construction of the decision of the Privy Council was considered by a Division Bench of this Court in Garabindi Kamarain V/s. Surji Narain Singh A.I.R. 1924 Pat. 250. In that case a Munsif's decision was based on an authority which had in fact been modified by a subsequent decision. An application was, therefore, made for review of the decision of the Munsif and was allowed. An appeal to the Subordinate Judge was dismissed on the ground that no appeal lay, and that, in any event, the decision of the Munsif was right. A second appeal was preferred to this Court and was heard by a single Judge, who was of opinion that the production of an authority, which was not brought to the notice of the Judge of first instance, and which lays down a view of the law contrary to that taken by that Judge, was not a sufficient ground for review. The learned Judge considered that the matter was concluded by the decision of the Privy Council in Chhaju Ram v. Neki A.I.R. 1922 P.C. 112. From the decision of the single Judge there was an appeal under the Letters Patent which was heard by the then Chief Justice Sir Dawson-Miller and Mullick J. After referring to the conflict of opinion in the Courts of this country on the question whether the production of a binding authority which was not placed before the Court of first instance amounts to the discovery of new and important matter or evidence, the learned Chief Justice said: It is not necessary to consider them in detail as the whole question has, in my opinion, been finally settled by the decision of the Judicial Committee of the Privy Council in 1922 in Chhaju Ram V/s. Neki A.I.R. 1922 P.C. 112. In that case their Lordships examined the case-law on the subject in India, which they found to be conflicting, and they held that the first two grounds upon which a review is permissible under Order 47, Rule 1, namely, the discovery of new and important matter or evidence which could not after due diligence have been produced at the trial or some mistake or error, apparent on the face of the record did not apply to a case where the ground of review is that the judgment has proceeded upon an incorrect exposition of the law. They further held that the third ground, namely, any other sufficient reason must be a reason sufficient on grounds analogous to those previously specified. In the present case the review was granted upon the ground that the case- law relied upon by the Munsif had been modified by a subsequent decision, which, in my opinion, amounts to the same thing as a wrong exposition of the law. In view of the recent decision of their Lordships of the Privy Council it is no longer open to the appellants to argue that the ground of review was an error on the face of the record. In fact the ground upon which the application for review was based was that the petitioners were not aware of the Full Bench ruling of this Court and could not place it before the Munsif at the first trial. Even assuming that this were a legitimate ground of review, which the Privy Council has decided is not so, it could only be justified on the ground of the discovery of new matter or evidence and an order granting a review on such grounds is clearly appealable under Order 47, Rule 7, coupled with Rule 4 of the same order. To my mind, it is clear from the decision of this Letters Patent appeal that the view taken of the Privy Council decision in Chhaju Ram V/s. Neki A.I.R. 1922 P.C. 112 is that it is no longer open to the Courts in this country, in exercise of the powers conferred by Order 47, Rule 1, to review a judgment on the ground that an authority binding upon the Court had not been brought to its notice at the hearing of the matter, the decision of which is sought to be reviewed. I would, therefore, dismiss this application for review without costs. Chatterji, J.

(3.) I regret I cannot agree with my learned brother. In my opinion there is nothing in the Privy Council decision in Chhaju Ram V/s. Neki A.I.R. 1922 P.C. 112 to warrant the view that the ground on which review of our judgment is asked for does not come within Order 47, Rule 1, Civil P.C. The alleged ground for review is that the decision of this Court in Mt. Daulat Kuar V/s. Bishnudeo Singh A.I.R. 1940 Pat. 310 on which our judgment was based was overruled by the Privy Council by a decision which had already been given, but not yet reported, except partly in Mt. Sahodra V/s. Ram Babu which had just come out and came to the notice of the learned advocate for the applicant after our judgment was signed. This Privy Council decision was subsequently reported in Mt. Sahodra V/s. Ram Babu In Chhaju Ram V/s. Neki A.I.R. 1922 P.C. 112 their Lordships held that review is not permissible merely because the previous decision had "proceeded upon an incorrect exposition of the law." There a Division Bench of the Chief Court of the Punjab had reviewed a judgment of another Division Bench, "treating the view of the law taken by the previous Division Bench as matter that was open to them as if on an appeal."