BAL CHAND Vs. BHERON DAN

JUDGEMENT

(1.) This is an appln. for review of the judgment of this Ct. dated 24-1-1950, passed in S. A. No. 57 of 1948 in which the applicants propose, to rely mainly on a ruling of the Nagpur Judicial Commissioner's Court reported in Rukhmabai v. Ganpatrao, A. I. R. (19) 1932 Nag. 177: (28 N. L. R. 231) in which it has been laid down that if an omission to notice one particular provision of law was a satisfactory ground for entertaining an appln. for review which had been pointed out by the appct., much more so was the omission to consider the important facts which were on the record & which the Judge himself immediately on passing his order realised that he had overlooked, & which in his opinion, would' have led him to pass an order materially different & that both were cases of an omission & not the cases of mis-application or of taking a wrong view of the law on fully considered facts of the case.

(2.) Before dealing with the main contention, one minor objection which is of no great significance may be disposed of. It is said that there was an apparent mistake on the face of the judgment, inasmuch as, in the judgment, name of Bal Chand was omitted from the pedigree table which should have appeared below Dhansukh Das because Bal Chand was the son of Dhansukh Das & Suraj Mal & Sohan Lal were his sons. There is no such mistake in the judgment. It appears the copyist has while copying omitted in the copy of the judgment the name of Bal Chand in the pedigree table after Dhansukh Das & before Suraj Mal & Sohan Lal & the omission on the part of the copyist has enabled the counsel to raise such a contention.

(3.) The main contention raised by the counsel on behalf of the petnr. is that the Ct. has not considered important facts which were on the record, namely, the admission contained in the statement of Bheron Dan dated 5-3-1927, the evidence of the appct. & the statements of the pltf. & his witnesses given in the trial Ct. It appears from the judgment under review that the admission contained in Bheron Dan's statement dated 5-3-1927, was in the Ct's mind. It also appears that the evidence of Bheron Dan, the pltf. & his witnesses was also before the Ct's mind. I may almost go to the length of saying that the whole case as presented by the learned counsel of the appct. before me had been presented before us on his behalf by his learned counsel at the time the appeal was heard. Moreover, it would appear from the every authority relied upon by the learned counsel for the appct. that it was not only the omission to consider the important facts which were on the record that would entitle the review to be granted but the facts must be such as the Judge himself immediately on passing his order realised that he had overlooked, & which in his opinion would have led him to pass an order materially different. In this case, there are no facts which, any of us the two Judges constituting the Bench which passed the judgment-ever realised, had been omitted & which, in our opinion, would have led us to pass a judgment materially different, again, "facts on record" mean facts on the face of the record having a direct relation to the order the Ct. was about to make facts which were actually within the Ct's own knowledge & which momentarily escaped its memory. These are facts, on the face of the record & not embedded in the record & only to be brought to light by a discussion & appreciation of the evidence, (vide Hiralal v. Mt. Salubai, A.I.R. (22) 1935 Nag. 845 at p. 246 : (31 N. L. R. 372).