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Kulwant Sahay, J.—This is an application for review of a judgment of Jwala Prasad, J. in Second Appeal No. 781 of 1930. There is also an application u/s 5, Lim. Act, for extension of the time for filing the application for review. Both these applications were presented before Jwala Prasad, J., and his Lordship was pleased to issue notice on the opposite party. The matter has now been referred to me for decision by his Lordship, the Chief Justice.
A preliminary objection is taken by Mr. Sushil Madhab Mullick that I have no jurisdiction to hear this application for review. The objection is based upon the provisions of Order 47, Rule 5, Civil P.C. and it is contended that no other Judge of this Court can hear this application inasmuch as Sir Jwala Prasad continued attached to this Court at the time when the application for review was presented and he was not precluded by absence or other cause for a period of six months next after the application from considering the decree or order to which the application referred.
The contention of the learned Advocate for the opposite party is that it is only in cases when the Judge, whose decision is sought to be reviewed, is absent on the date when the application id made, or the date next to that on which the application is presented, and remains absent from Court for a period of six months and is thus precluded from considering the decree or order for a period of six months calculated from the date next after the application is filed, that another Judge can hear the application for review. No authority has been placed before me in support of this contention and I do not think that the objection raised is sound. In my opinion what the rule provides for is that, if on account of the absence of the Judge for a period of six months after the filing of the application the application cannot be heard by that Judge, then it can be heard by another Judge of the Court.
In this case, Sir Jwala Prasad was absent on leave for more than six months since after the filing of the application, and is not likely to come back from leave for six months more, and therefore the case can be heard by another Judge. Under the circumstances the preliminary objection must be overruled.
As regards the merits, Mr. P.R. Das, who appears for the petitioners, raised only one ground for the review, viz., that there is an error apparent on the face of the record inasmuch as the learned Judge has gone into evidence in a second appeal. I am not prepared to say that this is an error apparent on the face of the record within the meaning of Order 47, Rule 1, Civil P.C.
There are circumstances under which this Court can in second appeal go into evidence. u/s 103 of the Code, if this Court be of opinion that there has been an illegality, omission, error or defect such as is referred to in Sub-section (1), Section 100, and by reason thereof there has been a wrong decision by the lower appellate Court, it can instead of making a remand determine the case finally by going into evidence. On reading the decision of Jwala Prasad, J., it is clear that he was of opinion that there was such a defect in the decision of the lower appellate Court which was attacked before him in second appeal: e.g., as regards the decision of the learned District Judge on the point of adverse possession, Jwala Prasad, J., points out that the decision was illegal.
It was therefore open to the learned Judge to go into evidence in this case. It is clear therefore that the ground urged by Mr. Das viz., of an error apparent on the face of the record inasmuch as the learned Judge had gone into evidence in a second appeal, is not a valid ground for admitting this application for review. It appears that in the application for review the points taken were; that the shares of the parties were not as stated in the judgment of Jwala Prasad, J. The learned Judge had stated that the plaintiffs'' share was 10-annas 8-pies and the defendants'' share was 5-annas 4-pies.
It was further stated in the application for review that it was not correct to say that the batwara khasra Nos. 221, 222, 242, 253 and 257 which were in dispute, corresponded to the survey plot No. 1618. These were perhaps the grounds upon which Jwala Prasad, J., was pleased to issue notice upon this application. These grounds have not been pressed before me, and there is nothing to show that there was any mistake in stating the shares of the parties or in stating that the batwara khasra numbers mentioned above did not correspond with the survey plot No. 1618. Under the circumstances I find no reason to admit the application for review and it must be dismissed with costs; hearing fee three gold mohurs. In view of the order made above, no order is necessary on the application u/s 5, Lim. Act.