1. This is a troublesome little matter involving an application for a review under O. 47, R. 1 of Sch. 1 of the CPC. The suit was one by the plaintiff, who is respondent 1, against (originally) three defendants, Pyare Lal, Sukru and Guddun. These three defendants are the sons and heirs of one Bhujai. It is necessary to note the name of another man, namely Bansi Dhar. What had happened was that in October 1934, Bhujai the father of the three defendants had borrowed a sum of money. The nominal lender—whether he was the real lender is the matter in dispute-was Bansi Dhar and by a document dated 9th October, 1937, Bhujai admitted that he had borrowed a sum of Rs. 160 from Bansi Dhar upon the security of certain cattle. In due course both Bhujai and Bansi Dhar died, the former leaving the three defendants as his heirs and the latter leaving a widow, Mt. Chaubabai.
2. I pass on now to the plaint. The suit was started in 1938 or 1939 and the plaint alleged that the plaintiff, that is to say, respondent 1, Chhotey Lal, had lent this money to Bhujai in short that the loan was not Bansi Dhar's at all but was the plaintiff's and that the whole transaction was a benami one. On that footing the plaintiff sued to recover what was owing. It was then apparently realized that this involved a possible conflict with the widow of Bansi Dhar and that lady was added as a defendant. Subsequently three other defendants were added who, as far as I can see, had nothing to do with the matter. The three original defendants then filed a written statement in which they told this story. They said that their father Bhujai—and this is not disputed — had a good many money-lending transactions with Bansi Dhar many of which were still outstanding at the time of the loan to which this suit relates and that, in connexion with the earlier transaction, Bansi Dhar held considerable quantities of jewellery in pawn belonging to Bhujai. They then said that the loan of October 1934 also was taken by Bhujai from Bansi Dhar and not from Chhotey Lal at all-in other words that Chhotey Lal was not the lender and had nothing to do with the matter. If that is true, it, of course, puts an end to the whole matter because, in that event, whatever may be the rights as between those who claim through Bansi Dhar and the defendants, it would not give Chhotey Lal any footing to maintain the suit. That, therefore, was the first issue in the suit. If it failed, it put an end to the matter, because from that point onwards the plaintiff would cease to have any interest. The defendants, however, seem to have raised another contention which is really in the nature of an alternative defence. They said that there had been a settlement between themselves and Mt. Chaubabai, as representing her deceased husband, Bansi Dhar, which included not merely what was owing upon the loan of October 1934, but also all previous transactions as well. It was said that there was one comprehensive settlement, the occasion for which arose in consequence of a theft in which some of the jewellery was lost which put an end to all controversy in connexion with this and all other transactions. That, therefore, was the second issue, and, as I have pointed out it really only arose if the plaintiff succeeded in establishing his first point that he had some interest in the loan of October 1934, upon which he could found a cause of action in this suit.
3. In those circumstances, it first came before the Munsif who took evidence and tried the matter and came to the conclusion, as a matter of fact, that the plaintiff was not, and never had been, the lender of the money. The Munsif, I think, might have stopped there and dismissed the suit. But he went further and he also found that, in any case, the debt had been discharged in account between the sons of Bhujai and the widow of Bansi Dhar. That might possibly raise more serious questions than the Munsif was able to consider, but I do not propose to discuss them at this stage. The point to notice is that he found as a fact that the money was not advanced by the plaintiff. He had evidence before him and at this point it is necessary to refer again to what happened when the settling up took place between Bansi Dhar's widow and the first three defendants. Ultimately, on nth October 1937, a final payment of Rs. 84 in full settlement of all the outstanding obligations between them appears to have been made by the widow, Chaubabai, to the three defendants and a receipt was given-apparently it was in the nature of a release-acknowledging the discharge of all obligations on either side. But it is also said that a certain book or register was kept by Mt. Chaubabai which, if produced, would show what the transactions between Bhujai and Bansi Dhar had been and that this book would disclose that the loan of October 1934 was not one of the personal transactions between them. The significance of that apparently was that from it the plaintiff suggested that it could be inferred that the loan of October 1934 stood on a different footing from all the others and must, therefore, be presumed to be something which was not personal to Bansi Dhar. It was said that assisted the suggestion/that it was really the plaintiff's money. Now Mt. Chaubabai was apparently summoned to bring this book more than once to the Court of the Munsif. Ultimately, when she did not appear in answer to these summonses, an application was made for her arrest. I have seen this application and the entries in the order sheet. It appears that it came before the Court and the plaintiff, whose application it was, was asked to furnish an affidavit. The respondents' advocate tells me with admirable frankness that this was not pursued because it was found that the lady in question had left Allahabad and gone to Cawnpore and that her address was not known. He confessed that in so small a matter it was not worth pursuing it at that stage. It, therefore, came before the Munsif who decided it on the oral and other evidence which he had before him and without the register.
4. The next thing was that in February 1940 it went on appeal to the Small Cause Court Judge. Now, as I read the learned Judge's judgment, he divided the case-quite rightly I think — into two parts, first whether the plaintiff had any interest in the loan or not and secondly whether the loan had been as discharged at the time of the general settling up in 1937, and again he came to the conclusion, as it seems to me as quite a separate issue, that the loan was advanced by Bansi Dhar and not by the plaintiff. He says quite plainly:
Therefore, I believe the defendants' case that Bansi Dhar was the real lender. I am not prepared to believe the plaintiff that he had previous talk with the defendants father about this loan. When the defendants' father had already a lender, there is no reason why he should have run to numerous persons for taking loans and within the knowledge of the previous lender.
5. Moreover, from what immediately follows that passage, it is quite clear that the learned Judge had in his mind, not only the settling up which took place in 1937, but also the very hook or register which I have referred to above. He actually refers to Chaubabai being summoned and to her failure to attend and I must infer that he was content to go on and decide the case without that book. Nor apparently did either party consider it at that stage of such vital importance as to make it necessary to ask to have the trial adjourned till the lady was found and fetched. The learned Judge then went on to consider the other question, namely whether, if the plaintiff had any interest, the loan or any part of it was still outstanding. It is really upon that last issue that the register becomes vital, though I do not deny that it might have had some indirect bearing on issue 1 also. But its really direct bearing is on issue 2, which was really a matter of account. The learned Judge, therefore, dismissed the appeal.
6. A month later the plaintiff came before the Small Cause Court Judge with an application under O. 47, Rule 1 asking for a review. The story is that in a casual conversation with someone he had discovered that Mt. Chaubabai had lodged the book in Court in some other litigation and that in consequence it was now easily accessible. He asked that the decree against him dismissing his suit should be reviewed upon the ground, presumably, that the whereabouts of the book was a discovery by him of new and important matter or evidence which, after the exercise of due diligence, he had not been able to produce either at the hearing before the Munsif or at the hearing before the Small Cause Court Judge. It is not true, of course, to say that it had not been previously within his knowledge, because he admittedly had known about it all the time. But what had really happened was that, although he had known about it, he was not able to produce it notwithstanding his efforts. The learned Small Cause Court Judge in a short judgment has acceded to his prayer for a review and it is from that the defendants have appealed to me.
7. In the first place, I think that applications under O. 47, R. 1 must be treated with a considerable measure of caution. That is a matter of public policy as it is obviously necessary that, save in exceptional circumstances, finality in litigation should be achieved at some point and I think it is a proper principle in applications such as these that the person who wants a review should at least prove strictly the diligence he claims to have exercised and also that the matter or evidence which he wishes to have access to is, if not absolutely conclusive, at any rate, nearly conclusive of the matter. It is not, in my opinion, the proper function of a review application merely to supplement evidence. It is not a proper use of O. 47, R. 1, as I think to make it serve the purpose merely of introducing evidence which might possibly have had some effect on the result. I think it has to go a good deal further than that. Now, in the present case I am impressed by two circumstances. While I do not for a moment suggest that the plaintiff showed any unreasonable slackness, I am not altogether satisfied that he did attain that standard of diligence which O. 47, R. 1 requires. He admits quite frankly that he went half way with the proper steps to compel Mt. Chaubabai to produce the document in question but was deterred when he found that a pursuit of the lady to Cawnpore was going to involve a certain amount of expense and trouble. I think O. 47, R. 1 requires a high standard of diligence. I can quite understand why he went no further, but that it is not necessarily discharging his obligation of showing due diligence within the meaning of O. 47, R. 1. In effect what he has done is that, having found it difficult to get hold of the lady in 1937, he has now discovered that he can put his hand on the document very readily and seeks on that account to devise a means by which he can get it into evidence. That, in my view, goes beyond O. 47, R. 1.
8. There is, however, another reason why I think that this appeal must be allowed. It is that I am by no means satisfied that, even if the book or register is produced in evidence, its effect will be necessarily so great as to conclude the question before the Court. Actually no steps have been taken to produce the book before me. I point out that on applications of this kind the applicant ought always to see that the Court is furnished with the evidence which he asks to have admitted because otherwise it is impossible to tell what its value really is. But in this particular case, even assuming that the book is all that the plaintiff says it is, it does not amount to more than that in that particular book this transaction is not recorded. It does not prove either that the loan was not advanced by Bansi Dhar — indeed, it is admitted that it was — nor that, being so advanced, it was not out of his own money. Still less does it prove that it was advanced out of the plaintiff's money. I think that the learned Judge is wrong when he says: “If the entries on this page are genuine then they appear to rebut the defendants' case.”
9. It is not a question of rebutting the defendants' case. It was for the plaintiff to establish in the circumstances that he had such an interest in this loan as would entitle him to maintain the suit. He had to prove his own case, and I am by no means satisfied that the production of this book is more than a mere item of evidence of doubtful value.
10. And, as I have already pointed out, I think that the learned Judge himself had it in mind when he dismissed the appeal. For all these reasons, I think that I must disagree with the learned Small Cause Court Judge and dismiss the civil Miscellaneous Case No. of 1940 with costs and allow this appeal also with costs.
Code of Civil Procedure —
(a) (’40) Chitaley O. 47 R. 1 N. 10 Pt. 3; N. 12 Pts. 2 and 3; N. 13 Pt. 2.
(’41) Mulla Page 1230 Pt. (w).
(b) (’40) Chitaley O. 47 R. 1 N. 10.
(’41) Mulla Page 1230, Note “Discovery of new and important matter or evidence.”
G.N/R.K
11. Appeal allowed.