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Case Number

AFOO No. 119 of 1956

Attorney(S)

A.C. Sarkar
Nitya Ranjan Biswas and Kamalesh Banerji
A.D. Mukherji and Sudhir Kumar Bose

Judges

Das Gupta
Law, JJ.

Acts

clause (b) to sub-rule (2) of rule 4 of Order 47 of the Civil Procedure Code
provisions of rule 4 of Order 47 of the Civil Procedure Code,
clause (b) of sub-rule (2) of rule 4 of Order 47,
ORDER 47 RULE 1 CIVIL PROCEDURE CODE
sub-rule (2) of rule 4 of Order 47
rule 1 of Order 47.
rule 7 of Order 47
Order 47, rule 7
Order 47, rule 1

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Smart Summary

Structured Summary of the Judgment (Das Gupta, J.)

Factual and Procedural Background

This appeal arises from a partition suit in which a judgment and preliminary decree were passed on 27th September, 1955. Defendants Nos. 1 and 2 filed an application for review on 18th October, 1955, contending they had discovered a new entry in a birth register showing the birth of a son of Nishi Kanta Purkait on 1st August, 1924. The new entry, if accepted, would support the contention that Kamala Kanta Purkait was a major on 24th March, 1952 (the date when his mother Saralabala executed a deed of sale in favour of the plaintiff as guardian). The question of Kamala Kanta's majority at that date was central because if he were a major his interest would not have passed by his mother's earlier sale, and the subsequent sale by him on 7th May, 1952 (to defendants Nos. 1 and 2) might be effective.

At trial the defendants produced three entries from the birth register: exhibits B/1 and B/2 that clearly referred to births of sons of Nishi Kanta Purkait, and a third exhibit (Ex. B/2 or Ex. B, as described in the opinion) which the trial Judge found referred to a son of Nishi Chandra Purkait, not Nishi Kanta. The trial Judge rejected the defence contention that the entry reading “Nishi Chandra” was a mistake for “Nishi Kanta,” concluded the registers "do not at all help us in solving the riddle," and found that Kamala Kanta was a minor on 24th March, 1952. The trial decree declared the plaintiff's share to be four-fifths of the disputed property.

The defendants' review application asserted that the newly discovered entry showing a son of Nishi Kanta born on 1st August, 1924 constituted new and important evidence, not previously within their knowledge despite due diligence. The trial Judge allowed the review application, finding the entry showed a son of Nishi Kanta, accepting that there had been a bona fide mistake and indicating an inclination that the applicants had exercised due diligence; the Judge also said the petition would succeed on the alternative ground of "other sufficient reason" under Order 47, rule 1, Civil Procedure Code. The plaintiff appealed.

Legal Issues Presented

Whether an application for review based on discovery of new evidence should be allowed when the applicant fails to prove that the evidence was not within their knowledge or could not have been produced despite the exercise of due diligence (considering Order 47, rule 1 and sub-rule (2) of rule 4 of Order 47, Civil Procedure Code).
Whether the proviso in clause (b) to sub-rule (2) of rule 4 of Order 47 (which bars grants of review on newly discovered matter unless strictly proved) should be read as requiring proof of the exercise of due diligence even though the words “after the exercise of due diligence” do not appear verbatim in that clause.
What is the scope of appellate review where a trial Judge grants an application for review — specifically, whether the appellate court may examine whether there was any legal basis for granting the review (i.e., whether the trial Judge exercised his discretion judicially).
Whether a court may permissibly allow review on the residuary ground of “other sufficient reason” when the primary ground relied on (discovery after due diligence) has not been proved.

Arguments of the Parties

Plaintiff's (Appellant's) Arguments

The newly discovered birth-register entry, even if genuine, does not prove that the child recorded was male — it only shows a birth and not necessarily a male birth.
The defendants could and should have produced this entry at trial if they had exercised reasonable care and diligence in searching for it; therefore the prerequisite for review under Order 47 was not satisfied.

Defendants' (Respondents') Arguments

The discovered entry shows the birth of a son of Nishi Kanta (date 1 August 1924) and is new and important evidence which would support a finding that Kamala Kanta was a major on 24 March 1952.
There had been a bona fide mistake by the defendants (and their advisers) in failing earlier to detect the relevant entry; this bona fide mistake should not be equated with want of diligence.
Mr. Mukherji argued that clause (b) of sub-rule (2) of rule 4 does not repeat the words “after the exercise of due diligence,” and that, once it is shown that the new matter was not within the applicant's knowledge or could not be produced by him, the bar of the proviso disappears — hence the court may grant review without strict proof of due diligence and an appeal would not lie solely on that point.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Chiranjilal Ramlal v. Tulsiram Jankidas (I.L.R. 47 Cal. 568)	Emphasis that applications for review on the ground of discovery of new and important matter or evidence should be considered with great caution.	The court relied on the observation (by Mookerjee, J.) to support the proposition that the lower Court had granted the review too lightly and that care is required before reopening a decision on this ground.
Nandalal Mullick v. Panchanan Mukherji (I.L.R. 45 Cal. 60)	Cited (through Chiranjilal) as authority emphasising caution in granting review on newly discovered evidence.	Used as supportive authority for the general principle that review applications on newly discovered evidence must be approached cautiously.
Sm. Sarajubala Guha Thakurta v. Aswini Kumar Ghosh (50 C.W.N. 707) — Full Bench	Consideration of whether in an appeal from an order granting review the appellant is limited to grounds specified in Order 47, rule 7 or may show that none of the grounds for review existed; observations about the exercise of judicial discretion by the trial Judge.	The court considered the Full Bench observations (Chakravartti, J.) and rejected the narrower view that appellate courts may not inquire into the legal basis for a trial Judge's exercise of discretion; held appellate court must examine whether discretion was exercised judicially.
Chhajju Ram v. Neki (26 C.W.N. 697) — Privy Council	Interpretation of the phrase “other sufficient reason” in the context of review applications (i.e., when it may be appropriate to permit review on some alternative sufficient reason).	The court relied on the general guidance to conclude that it would be arbitrary to allow a party to succeed on “other sufficient reason” when the primary allegation (discovery after due diligence) had not been proved; therefore the lower Court's reliance on this residuary ground was improper.

Court's Reasoning and Analysis

The court's analysis proceeded in distinct steps that adhered closely to the text of the record and to statutory provisions in Order 47 of the Civil Procedure Code.

Interpretation of procedural requirements: The Judge examined the interaction between rule 1 of Order 47 (which uses the phrase “after the exercise of due diligence” when discussing newly discovered evidence) and clause (b) of sub-rule (2) of rule 4 of Order 47 (which bars grants of review on newly discovered matter “without strict proof of such allegation” but does not repeat the phrase “after the exercise of due diligence”). The court held that the words “after the exercise of due diligence” must be read into clause (b) by implication; otherwise the due-diligence requirement in rule 1 would become meaningless.
Evaluation of the evidence on due diligence: The appellate court scrutinised the factual material before the trial Judge and found it inadequate to prove that the defendants had exercised due diligence and, despite such diligence, could not have discovered the birth-register entry earlier. Specific factual observations supported this conclusion: - The defendants and their advisers were aware of the significance of birth-register entries and had procured three copies; two referred clearly to Nishi Kanta's sons while one referred to a son of Nishi Chandra. - It was implausible that native defendants and advisers would confuse the distinct names “Chandra” and “Kanta” if they had properly read the document; the more plausible inference was that the defendants did not examine the document carefully. - No witness from the defendants (neither of the applicants nor their agent or adviser) gave evidence of having exercised due diligence; the affidavits/statements in the application were not substituted for oral evidence proving diligence. - Mere statements in the application were insufficient to displace the statutory requirement of strict proof that the matter was not within knowledge despite due diligence.
On the legal standard for appellate review: The court rejected the submission that an appellate court was precluded from examining whether there was any legal basis for granting review; when the legislature provides an appeal, the appellate court must ensure that the trial Judge exercised discretion judicially and in accordance with recognised legal principles. The appellate role is therefore to determine whether there was any basis in law and evidence for the order granting review.
On the alternative ground of “other sufficient reason”: The trial Judge had allowed the review also on the ground of “other sufficient reason.” The appellate court held that, where the applicant's principal allegation is discovery after due diligence and that allegation is not proved, it would be arbitrary to permit the applicant to succeed by falling back on the residuary phrase “other sufficient reason.” Allowing such a fallback in these circumstances would be capricious and would render the statutory requirements nugatory.
Conclusion of analysis: Because there was no admissible evidence establishing that the birth-register entry had been discovered only after the exercise of due diligence (and because granting review on “other sufficient reason” in these circumstances would be arbitrary), nothing in the record justified allowing the review of the decree.

Holding and Implications

HOLDING: The appellate court allowed the appeal by the plaintiff and set aside the order of the trial Judge that had granted review. In the words of the court: nothing has been established in this case on which the court ought to grant review of the decree. The appeal was allowed with costs. (Law, J. agreed.)

Implications:

Direct effect on the parties: The order granting review was set aside and the trial decree (declaring the plaintiff's share as four-fifths) stands; the plaintiff succeeded in the appeal and was awarded costs.
Procedural and doctrinal implications (as articulated by the court):
- The requirement of showing that newly discovered evidence was not within the applicant’s knowledge "after the exercise of due diligence" must be treated as integral to clause (b) of sub-rule (2) of rule 4 of Order 47 (i.e., the due-diligence requirement applies even where clause (b) omits the exact phrase).
- An appellate court, when hearing an appeal from an order granting review, must ensure that the trial Judge exercised his discretion judicially and in accordance with recognised principles — the appellate court may inquire whether there was any legal basis in the evidence for granting review.
- The residuary ground “other sufficient reason” cannot be used capriciously to override or circumvent the statutory precondition of due diligence when the applicant’s case was presented and decided on the specific ground of discovery after due diligence but that ground was not proved.
No broader factual holdings about the identity of the birth-register entries or the substantive question of Kamala Kanta's majority were finally resolved in favour of the defendants; the court's decision focused on procedural grounds for review rather than re-determination of the trial merits.

Note: This summary is strictly confined to the content of the provided opinion and does not add factual or legal material beyond what appears in the judgment text.

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Hriday Kanta Koyal v. Jogesh Chandra Mandal, And Anr.

The Judgment of the Court was as follows:

Das Gupta, J.:— This appeal is against an order granting an application for review in a partition suit after the judgment had been delivered and preliminary decree had been made on the 27th September, 1955. The application for review was made on the 18th October, 1955. The ground urged was that the applicants, defendants Nos. 1 and 2 in the suit, had discovered an entry in a birth register showing the birth of a son of Nishikanta Purkait on the 1st of August, 1924 and that this was new and important evidence which was not, after exercise of due diligence, within their knowledge and, therefore, could not be produced by them at the time when the judgment was passed.

2. One of the main questions in the partition suit was whether on the 24th March, 1952, when Saralabala executed a deed of sale in favour of the plaintiff as guardian of Kamala Kanta Purkait, described in the deed as her minor son, Kamala Kanta was really a minor. It appears that thereafter on the 7th May, 1952, Kamala Kanta himself executed a deed of sale in favour of defendants Nos. 1 and 2. If Kamala Kanta was really a major on the 24th March, 1952, his interest did not pass by the sale by his mother Saralabala. If, on the other hand, he was a minor on that date, his interest passed by that sale and defendants Nos. 1 and 2 acquired nothing by the subsequent sale by Kamala Kanta on the 7th May, 1952. For this reason, the parties concentrated in that case on the evidence that had to be adduced to prove the date of Kamala Kanta's birth. On the side of the defendants, much weight was attached to the entry in a birth register of the births of Kamala Kanta and his brothers, sons of Nishikanta Purkait, Three such entries were put in evidence but while exhibits B/1 and B/2 clearly referred to the birth of sons of Nishikamta Purkait, Ex. B, it was found, showed the birth of a son of one Nishi Chandra Purkait as distinct from Nishi Kanta Purkait. The learned Judge rejected the defence contention that Nishi Chandra, as entered in Ex. B, might be a mistake for Nishi Kanta and pointed out that it was nobody's case that, Nishi Kanta was known as Nishi Chandra, that it was the positive evidence of the plaintiff's side that there was only one Nishi Kanta Purkait in village Mankhanda and it was further clear that there were two Nishi Chandra Purkaits in the same village and one of them was still alive. Holding, therefore, that Ex. B did not refer to the birth of any son of Nishi Kanta Purkait, the learned Judge concluded that it could not be held that Ex. B/2 really related to the third son of Nishi Kanta Purkait. The conclusion reached by the learned Judge as regards the entires in the birth registers was these words:

“So the birth registers as produced by the defence side in this suit do not at all help us in solving the riddle.”

3. After consideration of the evidence on the record, the learned Judge came to the conclusion that Kamala Kanta was really a minor on the date of execution of the Kobala by Saralabala. In that view, he decreed the suit in part declaring the plaintiff's snare to be 4/5th of the disputed property. The new evidence on the alleged discovery of which the defendents Nos. 1 and 2 had asked for review purports to show that one son was born to Nishi Kanta Purkait on the 1st of August, 1924. That evidence would undoubtedly be of very great assistance to the defendants in showing that Ex. Bj2 referred to Kamala Kanta and consequently in showing that Kamala Kanta was a major on the date of execution of the kobala by his mother.

4. This application was opposed by the plaintiff mainly on two grounds, namely, that the new evidence, alleged to have been discovered, did merely show that a child was born to Nishi Kanta Purkait and not that a male child was born and further that the petitioners could easily have produced, at the time of the trial, this evidence, now sought to be introduced, if they had only searched for it with reasonable care and diligence.

5. The learned Judge, who heard the application for review, has come to the conclusion that the entry in the birth register, said to have been discovered now, shows the birth of a son to Nishi Kanta and further that there had been a bona fide mistake on the part of the defendants and their advisers and such bona fide mistake should not be confused with want of diligence. Though the learned Judge has not stated in so many words that the new evidence was not within the knowledge of the petitioners after the exercise of due diligence, it is clear that he did think that the petitioners had been duly diligent and still had not been able to discover this evidence. He added, however, that even if this ground was not held to be proved, the petition would succeed on the ground of other sufficient reason within the meaning of Order 47, rule 1, Civil Procedure Code.

6. In this appeal by the plaintiff, the main question urged by Mr. Sarkar is that there was, in fact, not the slightest evidence before the learned court below to show that due diligence had been exercised by the defendants or anybody on their behalf for discovering the evidence which has now been found. Quite clearly, the defendants and their advisers were fully conscious of the importance of the entries in the birth register showing the birth of three sons of Nishi Kanta Purkait, two sons elder than. Kamala Kanta. They obtained three copies of entries in the birth register, two of which clearly referred to births of sons of Nishi Kanta Purkait while the third showed the birth of a son of Nishi Chandra Purkait. The question that naturally arises is whether this fact, that. Ex. B shewed the birth of a son of Nishi Chandra Purkait and not to Nishi Kanta Purkait, could have been discovered by the defendants or their advisers if they had been duly diligent. If the defendants had been foreigners, they might not have fully appreciated the difference between Chandra and Kanta and might have wrongly thought that while the first name Nishi agreed, that was sufficient. The defendants are, however, not foreigners but belong to this country and I presume that their advisers are also natives of India. How they could omit to notice that Ex. B referred to the birth of a son of Nishi Chandra and not of Nishi Kanta, passes my comprehension. The only explanation is that none of them cared to read and examine the document. Ordinary diligence would, in my opinion, have been sufficient to bring home to them the fact that Ex. B was really of no assistance to them and though they had applied for a copy of an entry of the birth of Nishi Kanta's son, what they had obtained was a copy of an entry of Nishi Chandra's son. The necessary consequence of such discovery would have been to make further attempts to get a copy of the entry of the birth of a son of Nishi Kanta and if that had been done, it is reasonable to think that the defendants would have got in their possession the evidence they now claim to have discovered, well before the trial of the partition suit. It is interesting to notice that though three witnesses were examined by the defendants in support of their application for review, neither of the defendants cared to go into the witness box nor has any adviser or agent of theirs been examined. In fact, nobody has come into the witness box to say that they did exercise due diligence and in spite of it they could not discover the fact that, Ext. B referred to the birth of a son of Nishi Chandra or that after due diligence they could not have discovered the evidence which they were now seeking to produce. Mere statement in an application cannot take the place of evidence. Instead of giving evidence to show that they had exercised due diligence and, in spite of such exercise, had not been able to discover the new evidence, the applicants for review contented themselves with an attempt to persuade the court that there was a bona fide mistake and that they had bona fide failed to notice the distinction between Nishi Chandra and Nishi Kanta. As I have stated earlier. I find it impossible to believe that anybody who exercised some amount of diligence could have failed to notice the distinction between Nishi Chandra and Nishi Kanta. On the evidence, therefore, there was no basis for the conclusion that the new and important matter now discovered, namely the entry in a birth register, showing the birth of a son of Nishi Kanta Purkait, on the 1st of August, 1924, was not within the defendants' knowledge or could not be produced by them at the time the decree was passed after the exercise of due diligence.

7. On behalf of the respondents, Mr. Mukherji has argued that as soon as the applicants succeeded in satisfying the court that the new matter was not within their knowledge or could not be produced by them, the bar of the proviso in clause (b) to sub-rule (2) of rule 4 of Order 47 of the Civil Procedure Code disappeared and that consequently where the court has granted an application for review without proof of the exercise of due diligence, there has been no contravention of the provisions of rule 4 of Order 47 of the Civil Procedure Code, and consequently an appeal did not lie. The relevant part of sub-rule (2) of rule 4 of Order 47 is in these words:

“Where the court is of opinion that the application for review should be granted, it shall grant the same:

Provided that………………..

(b) no such application shall be granted on the ground of discovery of new matter or evidence which the applicant alleged was not within his knowledge or could not be adduced by him when the decree or order was passed or made without strict proof of such allegation.”

8. It is true, as pointed out by Mr. Mukherji, that clause (b) does not mention the words, “after the exercise of due diligence”. I am unable to agree, however, that this justifies the conclusion that the bar of the proviso in clause (b) disappears as soon as it is proved that the new matter was not within his knowledge or could not be produced without proof that this was so in spite of the exercise of due diligence. In my judgment, although the words, “after the exercise of due diligence” appearing in rule 1 of Order 47. have not been repeated in clause (b) of sub-rule (2) of rule 4 of Order 47, they have to be read into clause (b) by implication as otherwise the requirement of the exercise of due diligence in rule 1 becomes nugatory.

9. It is helpful to mention the observation of Mookerjee, J. in Chiranjilal Ramlal v. Tulsiram Jankidas* (1) I.L.R 47 Cal. 568 at page 581 where his Lordship observes:

“I desire to emphasise what was said in the case of Nandalal Mullick v. Panchanan Mukherji, I.L.R 45 Cal. 60, that application for review on the ground of discovery of new and important matter or evidence should be considered with great caution”

10. In that case, his Lordship observed that the application for review had been granted very lightly. I am bound to say that, in the facts of the present case, it must also be held that; the application has been granted very lightly. As I have pointed out earlier, the learned Judge has not even recorded a clear finding that there was exercise of due diligence, even though it might be proper to hold that that was the inclination of his mind. The reason why he did not record a clear finding was probably the fact that no evidence worth the name had been adduced to show that there had been exercise of due diligence.

11. Mr. Mukherji drew our attention to certain observations made by Chakravartti, J. (now Chakravartti, C.J) in the Full Bench case of Sm. Sarajubala Guha Thakurta v. Aswini Kumar Ghosh (2) 50 C.W.N 707. The question referred to the Full Bench was “whether when an order granting an application for review is questioned in an appeal from the decree ultimately passed”, the appellant is limited to the ground specified in Order 47, rule 7 or is entitled to show that none of the grounds for review as specified in rule 1, existed. That question was answered by the Full Bench in the negative. In dealing with the question whether the word, “application” in rule 7 of Order 47 should be understood as meaning the order, Chakravartti, J. observed:

“……….if the Judge himself thinks that his decision should be reconsidered, the exercise of his discretion cannot itself be made the subject of an attack on the ground of the non-existence of sufficient reasons, but it is liable to question only on the ground that some transgression of jurisdiction or gross violation of procedure happened, as when the Judge granting the application was not the proper Judge to do so, or the application was granted, although it was barred by limitation or without notice to the opposite party.”

12. I am unable to agree that these observations were meant to lay down that in an appeal from an order granting the application, it was not right or proper for the court of appeal to consider whether there was any basis in law for the grant of review.

13. Whenever the legislature has left a matter in the discretion of a court and at the same time has provided for an appeal from its decision, in the exercise of that discretion, the task of the court of appeal is not to consider how it would have exercised the discretion but to examine whether the discretion has been exercised judicially, that is, in accordance with the well recognised principles of law. For the Court of appeal to say that, if the Judge has exercised his discretion in a certain manner, that is the last word and there can be no interference, would amount to a refusal on the part of the count to do its duty. Even though the Judge has exercised his discretion, the court of appeal is bound to remember that an appeal has been allowed by the very law which gave the Judge the power to exercise his discretion. The appellate court has to decide the appeal and for the purpose of deciding the appeal, it has to examine the matter carefully to see whether the exercise of the discretion has been judicially done. Where, as in the present case, we are unable to discover anything in evidence to justify a conclusion that there was exercise of due diligence on the part of the defendants or their advisers, it must, in my opinion, be held that there was no basis for the learned Judge's order and that in granting a review, he has not exercised his discretion judicially.

14. As I have indicated earlier, the learned Judge did further state in his order that the application for review should be allowed also on the ground of sufficient reason. The question, how the words, “sufficient reason”, should be interpreted, was answered by the Privy Council in Chhajju Ram v. Neki (3) 26 C.W.N 697 and has often received judicial consideration.

15. One thing which, however, appears to be clear to me is that when a party comes to the court and asks for review on the ground that after exercise of due diligence he was not able to discover important evidence which he has now discovered and it is found that he has failed to prove that he was diligent, it would be arbitrary to say that even then the court might give him relief on that basis of other sufficient reason. If some other reason had been alleged, the question would have arisen whether that was sufficient reason within the meaning of Order 47, rule 1 What has been alleged here was the discovery of new and important matter after the exercise of due diligence. That, as I have pointed out above, has not been proved. To fall back now on the residuary words, “other sufficient reason”, is, in my opinion, entirely capricious and arbitrary. In so far as the order of the learned Subordinate Judge was passed on the existence of other sufficient reason, I have no hesitation in saying that this was wholly arbitrary and such an order should not be allowed to stand. Even though that part of the order might be considered not appealable, it would be proper for us to set aside that order in the exercise of our powers of revision.

16. I have, therefore, come to the conclusion that nothing has been established in this case on which the court ought to grant review of the decree.

17. I would, therefore, allow this appeal with costs.

Law, J.:— I agree.

S.N.S

Hriday Kanta Koyal v. Jogesh Chandra Mandal, And Anr.

Structured Summary of the Judgment (Das Gupta, J.)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Plaintiff's (Appellant's) Arguments

Defendants' (Respondents') Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Hriday Kanta Koyal v. Jogesh Chandra Mandal, And Anr.

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