Sanderson, C.J:— This is an appeal from the judgment of my learned brother Mr. Justice Greaves and from an order made by him on the 7th day of July 1919.

The application was made by the defendant firm asking that a decree, which had been made by the learned Judge in the suit on the 4th of June 1919, should be reviewed. The application was based upon the following ground, that the evidence of one Baldeo Sahai which was very relevant and most material could not be produced by the defendant firm after the exercise of due diligence at the time when the decree was passed. It was alleged that the defendants believed that the evidence of Baldeo Sahai was of such a character that if it had been given at the said hearing it might possibly have altered the judgment. The suit was brought by the plaintiff for a declaration that a certain contract was void, inoperative, unenforceable and of no effect, and that the defendants were not entitled to enforce the said contract or any rights thereunder. The allegation was that the contract in question had been made through the individual, to whom I have referred, Baldeo Sahai. He was not called as a witness at the trial. The result of the trial was that the learned Judge held that the defendants did not discharge the onus which lay upon them of proving the contract. Consequently, he gave judgment in favour of the plaintiffs and a decree was drawn up in accordance with the judgment—that was the decree which the defendant firm applied to have reviewed. The learned Judge granted a Rule. The hearing of that Rule was on the 7th of July this year. The learned Judge delivered no judgment, but lie said, I think I will hear his evidence. Then there was a discussion as to the date when the further hearing should be held. The learned Judge directed, have it a fortnight hence. He then made the Rule absolute and ordered that costs should be costs in the cause. The result of making the Rule absolute was that the decree which had been drawn up in pursuance of his judgment was set aside. The order drawn up was as follows: ‘It is ordered that this suit be placed on the peremptory list of suits for hearing after a fortnight from the date hereof for retrial for hearing the evidence of Baldeo Das as a witness on behalf of the defendant firm.’ The costs of that application and the order nisi were directed to be costs in the cause.

The learned counsel for the appellant has urged that the order of review which the learned Judge made is appealable, because he argued that the order granting the review was in contravention of the provisions of rule 4, Order XLVII of the Civil Procedure Code, and if the learned counsel is right in that contention, then it is clear that an appeal lies, because such an appeal is expressly given by Order XLVII, rule 7, which is as follows:

“(1) An order of the Court rejecting the application shall not be appealable; but an order granting an application may be objected to on the ground that the application was (a) in contravention of the provisions of rule 2, (b) in contravention of the provisions of rule 4, … … ….: Such objection may be taken at once by an appeal from the order granting the application or in any appeal from the final decree or order passed or made in the suit.” Rule 4, sub-rule (2) is as follows: 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 appellant alleges 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.” In order to see what is meant by discovery of new matter or evidence” mentioned in this rule, reference must be made to rule 1 of Order XLVII which is the Rule giving a right to the person aggrieved to apply for a review. That rule provides as follows: “Any person considering himself aggrieved (a) by a decree, or order from which an appeal is allowed, but from which no appeal has been preferred, [or (b) by a decree or order from which no appeal is allowed, or (c) by a decision on a reference from a Court of Small Causes], and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order.”

The learned counsel argued, first, that there must be an allegation such as is referred to in Order XLVII, Rule 4, sub-rule (2)(b), and then there must be strict proof of such allegation. It was further urged that the allegation must contain a statement that the evidence which is relied upon has been discovered after the decree was passed: further, that it must be new evidence: thirdly, that it must be important evidence; and, fourthly, that it could not be produced at the time when the decree was passed by the exercise of due diligence. He further urged that with regard to the discovery and with regard to the newness of the, evidence, the allegations made by the applicants in this case did not comply with the rule.

It appears that Baldeo Sahai had made an affidavit on the 23rd of August 1918, some months before the trial took place, which contained allegations with relation to the alleged making of the contract in question and the defendants were aware of the evidence which he would be able to give. Consequently, the learned counsel urged that his evidence was not new evidence within the meaning of the rule nor was there a discovery of the evidence after the decree was made, and that therefore the applicant had not complied with Rule 4, sub-rule (2)(b) of Order XLVII. I agree with his content ion in that respect. Further, he argued, that even if there was a sufficient allegation, there was not strict proof of such allegation.

Now, the meaning of the words “strict proof” has been considered by the late Chief Justice Sir Lawrence Jenkins and by my learned brother Mr. Justice Woodroffe in the case of Ahid Khondkar v. Mahendra Lel De . The learned Chief Justice at page 839 said this, “where there has been placed before that Court such evidence or ocher mode of proof as the law requires and permits, I cannot think that it was intended that on appeal under section 629” (the learned Chief Justice was then dealing with the Code of 1882) “it was to be open to the Appeal Court to say though there has been legal evidence, and in that sense strict proof, that proof did not convince it though it convinced the Judge who heard the witnesses, and therefore the application and the order granting the review were ultra vires and beyond the competence of the Court” I intend to say nothing which would in any sense derogate from what the learned Chief Justice said in that case. But the case which we are now considering differs from the case which was then before the learned Judges because, in my judgment in this case there is a material defect, viz., that there is no finding by the learned Judge who heard this application for review that he was convinced by the proof which was put before him upon the material matters which it was necessary for him to consider in deciding whether he should grant the review or not. The learned Judge merely said “I think I will hear his evidence.” He has not come to any finding as to whether there was a discovery of new evidence; he has not come to any finding as to whether that evidence was of such an important nature that he ought to grant a review; nor has he come to any finding as to whether due diligence was exercised by the defendants, with regard, to the production of such evidence at the trial. The result is that, in my judgment, the order for review was made in contravention of rule 4, Order XLVII of the Civil. Procedure Code. Consequently, there is a right of appeal.

There being a right of appeal, the next question that I have to consider is whether the order of the learned Judge should be upheld or sat aside.

In my judgment, there is no doubt that this order should be set aside. In my judgment, the defendants have not shown any ground which would justify this Court in making an order that the evidence of Baldeo Sahai should be taken on a rehearing.

With regard to the kind of evidence which, is necessary in an application of this kind, I need not say anything because my learned brother Mr. Justice Mookerjee and I had to consider this point, and we dealt with it in the case of Nandalal Mullick v. Panchanan Mukerjee . I do not intend to add anything to what I said in my judgment in that case. The facts of this case are such as to convince ms that the evidence which the defendants desired to put before the Court in no way comes within the ruling which we laid down in that case. As regards the class of new evidence, the rule is that the new evidence must be such that if adduced it would be practically conclusive—that is, evidence of such a class as to render it probable almost beyond doubt that the decision or judgment would be different. What are the facts in this case? We find that the defendant firm in the application which they made to the Court, could not say more than that if the evidence had been given at the hearing it might possibly “have altered the judgment—an allegation which is not sufficient to support the application. Then again, as to what took place at the trial when there was some discussion about the calling of the individual in question, I find a statement in the affidavit of Ramlal, a member of the plaintiff's firm, which is not denied by the affidavit put in reply thereto, to this effect: “When the case came up for hearing on the 4th June last, not only no application for adjournment of the case on behalf of the defendant firm on account of its inability to arrest the said Baldeo Das was made but, on the contrary, the learned counsel appearing for the defendant firm went on to the trial of this suit held herein and expressly stated to the Court that Baldeo could not be produced, and even if lie could be produced no reliance could be placed upon his evidence, he having given his statement to both sides.” That is the man, with respect to whose evidence this application was made, in order that a further hearing of this case should take place to see whether his evidence would bring about a different decision. In my judgment it cannot be said that Baldeo Das evidence, which was described by the defendants' learned counsel as being evidence upon which no reliance should be placed, is evidence which would be practically conclusive or which would render it probable almost beyond doubt that the decision would be different.

For these reasons on the merits, in my judgment, this appeal should be allowed, and the order for review which was made, by my learned brother Mr. Justice Greaves should be set aside, and that; the defendant firm should pay the costs of this appeal and of the application in the Court below.

Mookerjee, J.:— I agree that the order made by Mr. Justice Greaves on the application for review cannot be supported. The suit was instituted on the 19th August 1918 for a declaration that a contract between the parties was void, inoperative, unenforceable and of no effect, and for an injunction to restrain the arbitration proceedings pending before the Bengal Chamber of Commerce. The suit was decreed on the 14th June 1919. On the 19th June the defendant made an application for review of the decree on the ground that the evidence of one Baldeo Sahai which was very relevant and most material could not be produced by him at the trial after the exercise of due diligence. A rule was granted on the same day. The rule was mule absolute on the 7th July 1919. An order was subsequently drawn up in the following terms. “It is ordered that this suit be placed on the “peremptory list of suits for hearing after a fort night from the date hereof for retrial on hearing the evidence of Baldeo Sahai in the pleadings in this suit “mentioned as a witness on behalf of the defendant firm.” It cannot be disputed that the effect of this order was to Set aside the decree made on the 4th June 1919. The plaintiffs have now appealed against the order made on the application for review.

The appeal is sought to be supported on the ground that the application for review was granted in contravention of the provisions of rule 4 of Order XLVII of the Code. Rule (1) of that Order provides that “any person considering himself aggrieved by a decree or order from which an appeal is allowed, but from which no appeal has been preferred and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made……….desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order.” It is clear that the litigant who invokes the jurisdiction of the Court to grant a review must allege the discovery of new and important matter or evidence which after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made. When an application has been made on this ground, it may be granted under Rule 4, sub-rule (2) if the Court is of opinion that the application for review should be granted. There is, however, an important proviso in these terms: “No such application shall be granted on the ground of discovery of new matter or evidence which, the applicant alleges was not within his knowledge or could not be adduced by him when the decree of order was passed or made, without strict proof of such allegation”. It will be observed that whereas the expression used in roles 1 and 2 is “new and important matter or evidence”, the expression in clause (b) of the proviso to rule 4 is “discovery of new matter or evidence.” In my opinion, the effect of this expression is the same as if the words used had been “new and important matter or evidence.” The jurisdiction of the Court to grant a review depends upon the circumstances mentioned in rule 1; and it cannot be urged that rule 4 intended to prescribe a different test. Rule 7 next provides that an order granting an application for review may be objected to on the ground that the application was in contravention of the provisions of rule 4. Consequently when, as in the case before us, an application for review has been granted, it is open to the appellant to impeach the propriety of the order on the ground of contravention of the provisions of clause (b) of the proviso to rule 4. The appellant here argues that the application has been granted on the ground of discovery of new matter or evidence which the applicant urged 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. In my opinion, it is plain that this objection is well founded. Before a Court can exercise the jurisdiction vested in it to grant an application for review on the ground of discovery of new and important matter or evidence, it is incumbent on the Court to be satisfied with the allegation of the applicant that the evidence in question constituted new and important evidence within the meaning of rule I. There is no adjudication by the learned Judge in this case that he was so satisfied. The Court must further have strict proof of the allegation that the evidence was not within the knowledge of the applicant or could not be produced by him at the time when the decree was passed or order made. The learned Judge in the case before us has not stated that there was in his opinion strict proof of the allegation. The expression “strict proof” was considered by this Court in the case of Ahid Khondkar v. Mahendra Lal De and the substance of the decision of Sir Lawrence Jenkins was that strict proof means proof according to the formalities of the law. But proof according to the formalities of the law does not imply merely an allegation in accordance with the formalities of the law that the facts contemplated by rule 1 exist. The Court must be convinced upon the materials placed before it in accordance with the formalities of the law do prove the existence of the facts alleged. If any other view were taken, the result would follow that a party would be entitled to an order for review in his favour upon the mere allegation that the evidence which he seeks to produce was not within his knowledge or could not be produced by him at the time when the decree was passed. In my opinion, it is the duty of the Court to come to the conclusion, before it grants the application, that the evidence in question is new and important and that it was not within the knowledge of the applicant or could not be produced by him at the time when the decree was passed or order made. If a Court without such adjudication grants an application for review, the order is in my opinion contrary to the provisions of rule 4 and cannot be supported. In the present case, the order made by Mr. Justice Greaves is open to that objection and must consequently be set aside.

The question next arises as to whether this Court should consider the materials on the record and come to a decision or whether the matter should be remitted to the learned Judge. There can be no doubt that it is competent to this Court to deal with the matter finally and it is in the best interest of the parties that we should so dispose of the matter. Now when the materials on the record are considered, it becomes plain that the application for review should never have been granted. As regards the point whether the evidence was important evidence within the meaning of rule 1, it is clear that the answer must be against the applicant. The word important serves the purpose explained in the leading decisions on the subject mentioned in the judgment of this Court in the case of Nanda Lal Mullick v. Panchanan Mukerjee . In that case reference was made by the learned Chief Justice to the decisions in Young v. Kershaw and Brown v. Dean . In the first of these cases, Smith L.J observed that the new evidence must be such as would have been conclusive of the case if it had been adduced at the trial. Collins L.J similarly observed that the party asking for the new trial must show that there was no remiss cess on his part in adducing all possible evidence at the trial; and as to the class of new evidence the rule is that the new evidence must be such that if adduced it would be practically conclusive, that is, evidence of such a class as to render it probable almost beyond doubt that the verdict would be different. In the second case Brown v. Dean , Lord Lorebum observed that the new evidence must at least be such as is presumably to be believed and if believed would be conclusive. I am not unmindful that in this latter case Lord Shaw sounded a modified note. He observed that it was possible to figure cases in which evidence might not be conclusive but might be so gravely material and so clearly relevant as to entitle the Court to say that material and relevant fact should have been before the jury in giving its decision. But, whether we adopt the language used by Collins L.J or by Lord Shaw, it is clear that the applicant in the case before us must fail. The evidence which he seeks to produce now is not important evidence in any sense of the term. It is undoubtedly not conclusive evidence, as on the materials on the record it is plain that the person had made contradictory statements before the trial and that at the trial his counsel declared that he could place no reliance on him by reason of such circumstance. It is impossible for us to hold that evidence of this description would be such evidence as would justify the grant of an application for review.

I desire to emphasise what was said in the case of Nanda Lal Mullick v. Panchanan Mukerjee that applications for review on the ground of discovery of new and important matter or evidence should be considered with great caution. In the case before us there can be no doubt that the application has been granted very lightly. No doubt rule 4 of Order XLVII states that where the Court is of opinion that an application for review should be granted it shall grant the same. But the opinion of the Court must be opinion according to law, and the principles laid down in the case mentioned are rules which must be borne in mind before applications of this character are granted. I have no doubt of all that we should as a Court of Appeal set aside the order of the learned Judge in order to secure for the plaintiff the fruits of the lawful judgment which he obtained at the first trial.

Fletcher, J.:— I am of the same opinion and I have very little to add. The first question in this case is, does an appeal the from the order made by Mr. Justice Greaves. It seems to me clear that it does. Order XLVII, rule 7, of the Civil Procedure Code gives a right of appeal in case a review is granted in contravention of the provisions of rule 4. Did the learned Judge in this case grant the order for review in contravention of the provisions of Order XLVII, rule 4? It seams to me quite clear that he contravened all the provisions of Order XLVII, rule 4(2). The application ought to have been rejected in limine, as it did not contain the proper allegations provided for by the terms of the order; and, also I think that the learned Judge, even if the application contained the proper allegations, was bound, before he could proceed to make an order granting the review, to find that these allegations were strictly proved; that means “proved” within the meaning of the Indian Evidence Act. “Proved” is defined in section 3 of the Act as follows: “A fact is said to be proved when, after considering the matter before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.” The learned Judge in this case has altogether failed to consider whether the allegations were proved, and the only remark that he has made is that he thinks that he will hear the evidence of this additional witness. It is quite clear that does not satisfy the provisions contained in Order XLVII as to granting a review on the grounds set up in this case. In that view it is quite clear that an appeal lay from the judgment of the learned Judge. If an appeal lay, I agree with the remarks of the learned Chief Justice that no case has been established on which the Court ought to grant a review on the discovery of new and important matter or evidence mentioned in Order XLVII. I agree, therefore, that the appeal should be allowed.

N.G

Appeal allowed.

Attorney for the appellant: K.K Dutt.

Attorneys for the respondent: Mitter & Baral.