JUDGMENT
Atkinson, J.
1. This suit came before my learned colleague and myself in June of last year; and we dismissed this action on the ground of defective joinder of parties. It was argued and contended before us that the suit was not properly constituted inasmuch as two persons named Kazi Akbar Ali and Kazi Amjad Ali who were brothers of the second wife of the original mortgagee had not been made parties to the suit.
2. Having regard to the frame of the suit and to paragraph 4 of the written statement we held that the plaintiff ought to have joined these two persons as parties.
3. This application is now made to us to review our judgment on two grounds.
4. First, it is contended that the two persons named in paragraph 4 of the written statement are not necessary parties inasmuch as, by a document, dated the 3rd October 1912, they relinquished any right which they might have had in the property of Shaikh Elahi Buksh, the mortgagee, through his second wife, and that if they had any right through her they assigned their right to the plaintiff No. 1, who is the son of the original mortgagee.
5. Secondly, it- is urged that these parties, even if necessary parties could have been joined inasmuch as there was an acknowledgment within the meaning of Section 19 of the Limitation Act which would have saved limitation; and that thus if we considered that these two persons were necessary parties the joinder could have been made within limitation.
6. In support of the ground of limitation reference is made to an application filed by defendant No. 1 for a certificate of guardianship, schedule B of which shows the debts due by her husband’s estate–the husband being the original mortgagor.
7. In this schedule appears, as item No. 5, the debt due to the mortgagees in this case. It is contended that this is an acknowledgment within the meaning of the Indian Limitation Act and that it saves limitation and it is urged that if these two persons ought properly to have been joined as parties they could have been joined inasmuch as there was an acknowledgment in the application of the defendant No. 1 of the debt due to the plaintiff which satisfies the requirements of the Limitation Act. The date of the application was the 6th September 1910; and it is, therefore, urged that the plaintiffs could even now have added these parties as plainitffs within time. We agree in thinking that this argument is well founded and correct.
8. However, the more material ground is the argument that the plaintiff was misled owing to the form in which the learned Judge in the lower Court had decided the question as to whether the two persons named in paragraph 4 of the written statement were the heirs of the deceased.
9. No doubt these persons are not heirs, legally entitled to share with the others, as heirs of the deceased; but we think that there was material to lead the plaintiff to believe that it had been decided that these persons were not heirs of the deceased mortgagee and consequently that they need not have been joined as parties.
10. It now transpires that after the institution of the suit on the 3rd October 1910 the plaintiff procured a deed from these two persons relinquishing and assigning to him all their interest in these properties and the plaintiff now seeks to rely upon this deed for the purpose of showing that these persons are not necessary parties; and that consequently the suit should not have been dismissed on the ground of defective joinder of parties.
11. Mr. Pugh contends very strongly that the plaintiff’s application cannot come within the purview of Order XLVII, Rule 1, inasmuch as they have not shown that the document they now rely on could not have been produced at the trial or before us after the exercise of due diligence since the deed of the 3rd of October 1912 was in their possession; and the plaintiffs must be deemed to have withheld this document deliberately in the face of the pleadings in the suit.
12. Undoubtedly there was gross neglect on the part of the plaintiff in this case in not producing the document they now rely on, but we think that where the document which is subsequently produced shows (as it does in this case) that an injustice has been done, the interest of justice demands that the party to whom the injustice has been done should be granted a review. This well settled principle of law and practice was laid down by their Lordships of the Privy Council in a case reported as In the matter of the petition of Hadjee Abdoollah Reasut Hossein v. Hadjee Abdoollah 2 C. 131 : 31. A. 221 : 26 W.R. 50 : 1 Ind. Dec. (N.S.) 380 (P.C.) their Lordships say: “Looking to the extreme generality of the terms used in these sections, particularly to these terms ‘other good and sufficient reason’ and ‘necessary to correct an evident error or omission, or is otherwise requisite for the ends of justice,’ they are not prepared to say that there is an absolute defect of jurisdiction whenever the parties have failed to show that there was either positive error in law, or new evidence to be brought forward which could not be brought forward on the first hearing.”
13. This was a registered document registered on the very day it was executed and it has in no way been impugned as false or fraudulent. It was not produced earlier owing to the negligence or oversight on the part of the plaintiff himself who was misled by the decision of the Subordinate Judge and who failed to inform his legal advisers of its existence.–If produced the suit would not have been dismissed.
14. We think that the plaintiff has shown a sufficient reason for granting this application and we accordingly grant it.
15. It will be necessary to remand the case to the lower Court with a direction to accept evidence of the due execution of this document of the 3rd of October 1912, and to receive same in evidence when it will be admitted on the record.
16. At the original hearing my learned colleague and I held different views upon the question as to the necessity for adducing evidence of the proof of the debt; but Mr. Justice Jwala Prasad agrees that as the case must go back to the lower Court upon the question of proof and admission of the deed of 3rd October 1912, it should also be referred to the Judge to ascertain by legal proof what amount is now due and owing to the plaintiffs by the defendant on foot of the mortgage bond in suit.
17. We will accordingly direct the learned Subordinate Judge to ascertain the sum due and owing to the plaintiffs on foot of the mortgage bond, dated the 4th of September 1897. In doing so the learned Subordinate Judge should have regard to the well established principle of law that strict proof is necessary in the case of a creditor seeking to establish a debt against the estate of a deceased person.
18. We regret to have to observe that the generous offer for settlement made on behalf of the plaintiff by Mr. Hassan Imam on Saturday last has been so unworthily declined.
19. Inasmuch as the plaintiffs are responsible for this review and the appeal proving abortive before us, we feel that it is right and proper that they should pay the costs of the defendants in this Court as well as the costs before the Subordinate Judge and also a fee of three gold mohurs as the costs of this application.