CHANDRA KANTA BHATTACHARJYA Vs. LAKSHAN CHANDRA CHAKRABARTTY

JUDGEMENT

(1.) This appeal, preferred under Order XLVTI, Rule 7 (1$, of the Code of Civil Procedure of 1908, against an order granting an application for review of judgment on the ground of discovery of new evidence, is based on the reasons mentioned in Clauses (b) and (c), namely, first, that the application was in contravention of Clause (6) of the proviso to Rule 4, and secondly, that the application was made after the expiration of the period of limitation prescribed therefor and without sufficient cause In our opinion, there is no force in either of these contentions.

(2.) Clause (6) of the proviso to Rule 4 requires that no application for review, on the ground of discovery of new matter of evidence which the applicant alleges was not within his knowledge or could not be adduced by him when the decree or order was passed or made, shall be granted without strict proof of such allegation. The appellants contended that the requirement of "strict proof," just mentioned, has not been fulfilled; their argument, in substance, is that the evidence does not conclusively prove that the new evidence, on the discovery whereof the respondents based their application for review, was not within their knowledge and could not have been adduced by them when the judgment under review was passed. This contention is, in our opinion, based upon a misapprehension of the true meaning of the expression "strict proof" in Clause (6) of the proviso to Rule 4. The decision in Abed Khondkar v. Mohendra Lal De 29 Ind. Cas. 282 : 42 C. 830 : 19 C.W.N. 804 shows that strict proof" means proof according to the formalities of law and does not refer to sufficiency of proof in securing a particular conviction. As Jenkins, C.J., observed, "proof" means either conviction of the judicial mind on a certain fact or the means which may help towards arriving at that conviction; the word "strict" in connection with the term "proof" points to the second of these two meanings. Consequently strict proof" means anything which may serve directly or indirectly to convince a Court and has been brought before the Court in legal form and in compliance with the requirements of the law of evidence; it is formality that is prescribed and not the result that is described. In the case before us, the respondents, in support of their application for review, brought forward witnesses to depose that they did not and could not have become aware of the existence of the new evidence till the 9th December 1913. No attempt was made by the appellants to challenge the truth of this allegation by cross- examination, and it is not for us to indicate the class of questions which might have been appropriately put to the witnesses to test their veracity. The decision sought to be reviewed was pronounced on the 23rd May 1913. According to the respondents the new evidence, which forms the basis of the application for review, did not come to their knowledge till the 9th December 1913, and the application for review was actually lodged in Court on the 18th December 1913. In these circumstances, it is plain that there was strict proof of the allegation that the new evidence was not within the knowledge of the petitioners and could not have been adduced by them when the decree was passed. The first objection consequently fails.

(3.) The second objection taken is that the application was made after the expiration of the period of limitation prescribed therefor, and without sufficient cause. The judgment was pronounced on the 23rd May 1913; but the decree was not signed till the 30th May 1913. The application for review should have been made within 90 days from that date, that is, on or before the 28th August 1913. But the new evidence was not available till the 9th December 1913; consequently, there was sufficient cause for not making the application for review before the expiry of the period of limitation prescribed therefor. The second ground cannot accordingly be sustained.