Posted On by &filed under Calcutta High Court, High Court.

Calcutta High Court
Golamali Jemadar And Ors. vs Abdul Karim Sarkar on 27 August, 1909
Equivalent citations: 5 Ind Cas 182
Bench: Chitty, Richardson


1. This is an appeal against an order of the Subordinate Judge of Comilla admitting an application for review of his judgment. It appears that the plaintiff filed a suit on a bond for Rs. 200. That suit was dismissed by the Munsif and on appeal by the Subordinate Judge. The plaintiff then applied for a review of the judgment of the Subordinate Judge on the alleged ground that, after the dismissal of the appeal, the defendant had made an admission of the truth of the plaintiff’s claim in the presence of certain persons on board a steamer between Chandpore and Naraingunge on the 18th January 1908, the day after the judgment of the Subordinate Judge in appeal was passed. The Subordinate Judge admitted the review. He decided that it was a good ground for review and, on taking evidence of the witnesses, he came to the conclusion that the admission by the defendant was proved, and, accordingly for that reason alone, he reversed the decree of dismissal and passed a decree in favour of the plaintiff. Against the decree, the defendant applied to this Court on the 15th February 1909 for a Rule and a Rule was granted. That Rule comes on for hearing before us along with the appeal.

2. With regard to the appeal, it is objected that no appeal lies inasmuch as the order of the learned Subordinate Judge is not in contravention of the provisions of Section 624 or Section 626, Code Civil Procedure, 1882. We are of opinion that this is a good ground of objection. Section 624 merely prescribes that except in the High Court, a review of judgment shall not ordinarily be heard except by the Judge who passed the decree and Section 626 has three provisions which we need not set out in detail but within none of which the present case falls. There is also authority for this proposition in the case of Munni Ram Chowdhury v. Bishen Perkash Narain Singh 24 C. 878 where the learned Judges followed the decision of the Bombay High Court in the case of The Bombay and Persia Steam Navigation Co. v. The S.S. Luari 12 B. 171. It may be noted that the facts of the Bombay case were remarkably like the present case, the review having been granted by the learned Judge on the Original Side of the Court on the strength of certain statements made after the decree had been passed. We are clearly of opinion, therefore, that no appeal lies in this case and that it must accordingly be dismissed.

3. Turning, however, to the Rule, the question arises whether the learned Subordinate Judge was acting without jurisdiction in admitting the review and taking evidence of an admission which was not in existence at the time of the decree. Section 623 of the Code of 1882 in dealing with the discovery of new and important matter or evidence clearly indicates that that matter or evidence must be in existence at the time of the decree. The words are: “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.” It has been suggested that it might come under the words “for any other sufficient reason” and, no doubt, there are cases which go to show that a wide discretion must be given to the Courts in determining what is a good and sufficient reason for admitting a review. But there is authority–the highest authority for the proposition that the words “for any other sufficient reason” in Section 623, Code of Civil Procedure, do not apply and cannot apply to something which came into existence after the decree was made. In the case of Kotaghiri Venkata Subbamma Rao v. Vellanki Venkatama Rao 24 M. 1 at p. 27 I.A. 197 : 4 C.W.N., their Lordships of the Privy Council remarked Section 623 enables any of the parties to apply for a review of any decree in the discovery of new and important matter and evidence which was not within his knowledge or could not be produced by him at the time the decree was passed or on account of some mistake or error apparent on the face of the record or for any other sufficient reason. It is not necessary to decide in this case whether the latter words should be confined to reasons strictly ejusdem generis with those enumerated as was held in Roy Meghraj v. Bejoy Gobind Bural 1 C. 197 : 23 R. 438. In the opinion of their Lordships, the ground of amendment must at any rate be something which existed at the date of the decree an the section does not authorize the review on decree which was right when it was made the ground of the happening of some subsequent event.” But, we may say with great respect, and it appears to us to be consonant with sound reasoning and common sense, because if, on the contrary, an unsuccessful party be at liberty to apply for review of judgment on alleged admissions subsequently made by his opponent, there would be a flood of such applications in the Courts and decrees would rarely become final at the time that they are passed. We think, therefore, that the learned Subordinate Judge committed a material irregularity in admitting a review on the ground which he gave and that his decree passed in pursuance of that review of judgment cannot be uphold. We accordingly order that that decree he set aside and the former decree be restored.

4. As the appeal has failed and the Rule has been made absolute, we make no order as to the costs of either side.

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