1980 PLP 458 (CLC)

Ch. Nur Ahmad Dhilam for Petitioner. Muhammad Asghar Khadim for Respondents. Date of hearing : 18th November, 1978. This order will dispose of four review applications. These have been taken together as common questions of fact and law arise in them.

2. On 19th October, 1973 the respondents filed a civil suit for a permanent injunction on the allegations that they were in occupation of some agricultural land and that the petitioners were threatening to disturb their possession. On 1st November, 1973 the petitioners instituted counter suits claiming that they were holding the land in dispute as tenants under the respondents and-praying that the respondents be directed to refrain from electing them without recourse to law. The trial Court consolidated alt the suits. Though several issues were raised the main issue upon which the parties went to trial was whether the petitioners were in posses sion of the property in dispute and, in case this issue was decided in the affirmative, whether they were occupying the land as tenants or otherwise. After considering the evidence of the parties the trial. Court held that the petitioners were m possession of the land and that their possession was relatable to their status as servants under the respondents. Upon these findings it dismissed the suits of the petitioners. The petitioners went in appeal before the District Judge who after re-examining the entire evidence affirmed the findings of the trial Court. From the decision of the learned District Judge the petitioners came in second appeal to this Court. These appeals were dismissed by me on 22nd June, 1977.

3. Through these applications the petitioners seek a review of my decision of 22nd June, 1977. They claim that they have now discovered fresh evidence which conclusively proves that they were holding the land in dispute as tenant and not as servants. This new evidence is in the shape of an agreement which was allegedly executed by the predecessor-in-interest of the respondents on 28th June, 1971 in favour of one Ghulam Rasool. At two places in this agreement he is stated to have described the petitioners as his tenants in the land in dispute. It is alleged by the' petitioners that they did not learn about the existence of this document till after the disposal of the second appeals. They also allege that the person who was in possession of this document had gone abroad and he returned to Pakistan only recently.

4. A preliminary objection has been raised by counsel appearing on behalf of the respondents to the competency of these review applications. It is contended by Mr. Muhammad Asghar Khadim that after the disposal of a second appeal no review can lie on the ground of discovery of new or important evidence. I think this objection is well taken. It is to be noticed that the grounds upon which a second appeal can be entertained are of limited nature. They have been set down in section 100 (1) of the Code of Civil Procedure and section 101 of the said Code forbids a Court from entertaining a second appeal on a ground not mentioned in section 100 (1). A perusal of the said grounds will show that while hearing a second appeal the High Court does not sit as a Court of fact but that the findings on a question of fact recorded by the District Judge are final. Consequently, the High Court has, after it has disposed of a second appeal no jurisdiction to review its decision on the ground that if some evidence which was not available to the appellant earlier had also been considered by the first appellate Court the latter's decision on a question of fact would have been different.

5. There is no direct authority of this Court on the proposition before me. However, in Lala Mal and others v. Ghulam Muhammad (145 P R 1882) a Full Bench of the Punjab Chief Court considered the maintainability of an applica tion of a respondent in second appeal for review of a decision of the Court on the ground of discovery of fresh evidence. The Full Bench took the view that such an application was competent. But this decision cannot be cited as an authority in support of a similar application by an appellant because in second appeal the position of a respondent is different from that of an appellant, for, unlike the latter, he may, while supporting the judgment of the first appellate Court, challenge even a finding of fact which has gone against him. Reference in this context is invited to Faqir Muhammad v'. Muhabbat Khan (P L D 1958 Lah. 918) and Ma Lon v. Ma Mya May (A I R 1939 Rang. 59). This distinction in the respective positions of the two parties was present in the mind of the Judges who constituted the Full Bench and some of them did express the possibility that a similar application made by an appellant would probably, not be competent.

6. On the other hand, the High Courts of Bombay, Allahabad, Calcutta and Madras have definitely ruled against the maintainability of an application by an appellant who after having lost in the second appeal seeks a review of the judgment on the ground of discovery of fresh evidence. In Nand Kishole v. Anwar Hussain (1919 All. L J R 979) Stanley, C. J. while dismissing sue an application observed :

"It appears to us to be clear that this Court, if the new evidence had been brought before us before judgment was delivered, could not consider its weight, nor was it open to this Court to remand the case to the lower appellate Court with a view to the consideration of the documents alleged to have been recently discovered. Under the circumstances we think that the application for a review of judgment on the ground of the discovery of new evidence is clearly untenable." This decision was followed by the Allahabad High Court in Mariam-un -Nisa Bibi v. Babu Ram (A I R 1923 All. 541). In the Calcutta High Court, in Bhyrub Nath Toee v. Kally Chander Chowdhury ((1871) 16 W R 112) Loch, J., sitting with Bayley, J., while dismissing a review application based on the same ground, stated; ' `The difficulty we feel in this case is whether we can, as a Court sitting in special appeal (now second appeal), admit evidence to prove a fact which evidence was not before the lower Court. As a Court of special appeal, our duty is to determine whether there is anything contrary to some law or usage having the force of law in the judg ment of the lower Appellate Court, or that there is in it some substantial error or defect in law in the procedure or investigation of the case which may have produced error or defect in the decision of the case upon the merits, and on no other ground ; and the con clusion we come to must be formed on the record as it stood when the case was before the lower Appellate Court whose decision on facts cannot be questioned except as provided for by the law to which reference has just been made Nor if we were sitting in special appeal and hearing the case for the first time, could we admit evidence which had not been filed in the Court below. Perhaps we might per mit the special appeal to be withdrawn with permission to the party to present an application for review to the lower Court, but without some such permission on our part the lower Court would be unable to admit a review, as these are only admissible if no special appeal has been admitted by the High Court. In the present case, however, the special appeal has not only been admitted but heard and determined more than a year ago, and an application for review of our judgment has been already rejected under such circumstances, there does not appear any mode by which the present application can be complied with or the plaintiff's case be brought up for rehearing before any of the Courts in this country. If it is not within the power of this Court sitting in special appeal to admit evidence to prove a fact which has not been and could not have been placed before the lower Courts, and we believe that we have no authority to admit such evidence ............ Under any circumstances, it appears to us that this Court cannot admit a review of a judgment passed in special appeal merely on the ground that new evidence to prove a fact has been discovered, and under this view of the law we think this application should be rejected with costs." Though in Heera Lail Ghose v. Ram Taruck Dey (1875 W R 323) a Division Bench of the Calcutta High Court did make same observations in favour of the admissibility of review application but then these were in the nature of obiter dicta and in Rajani Kanta Das v. Kali Prasanna Mukherjee (I L R 41 Cal. 809) Coxe, J. declined to accept them as binding and instead based his decision upon the view taken in Bhyrub Nath Toee v. Kally Chunder Chowdhry.

7. The Madras High Court has also ruled against the maintainability of review in the above circumstances. In Raru Kutti v. Mamad (I L R 18 Mad. 480) Collins, C. J. and Parker, J,. dismissed an application for review on the ground of competency. Ghulam Mahade v. Rama Krishna Mudali (10 M L J 134) was decided by a Division Bench comprising Subrahmania and Davies, JJ. Subrahmania, J., had some doubts with regard to the correctness of the view taken in Raru Kutti's case, but Davies J, apparently did- not agree with him and rested his decision upon this and an earlier case of the Court reported as Jaekammal v. Palaneappa Chetry (5 M H C R 464).

8. Only one decision of the Bombay High Court has been placed before me. It has been reported as Hari Ganu v. Hari Ganu (A I R 1929 Bom. 225). In this case Madgavkar, J. also held against the competence of such an application and dismissed a prayer for review which was being sought on the ground of dis covery of new and important evidence.

9. In support of his contention that his application was maintainable the learned counsel relied upon a Division Bench decision of the Patna High Court in Brindaban Prasad v. Bankubehari (A I R 1936 Pat. 595). In this case a review application was allowed after disposal of the second appeal on the ground of discovery of fresh evidence. It is to be noticed that the Division Bench did not at all consider the question whether an application for review was in law competent. It was for this reason that in a subsequent case of the same Court, reported as Badri Das v. Behati Lall (A I R 1940 Pat. 197), Fazl Ali, J., declined to accept it as precedent; although the learned Judge had some reservations in the matter yet he did not choose to take a different view and dismissed the application for review. This being so I do not think that the case of Brindaban Prasad, ibid., advances the position of the petitioner in any manner.

10. It will thus be noticed that the weight of the authority is also against the maintainability of an application for review in the circumstances stated above. I would, therefore, dismiss these applications with costs. K. M. A. Applications dismissed.