Hefajuddin Talukdar vs Nabi Nasya and Others

Duval, J.—In this appeal, the main point which was argued on behalf of the appellant was that certain documents which were not tendered in evidence at the first trial, after a review of that trial had been obtained, were admitted in evidence in the second trial. It appears that the reviewing Court by its order did not exclude the trial Court from considering these documents at the re-hearing and by its order granting the review ordered that the case should be re-heard. Admittedly, these documents were relevant and admissible. Whether they ought to have been admitted or not at the discretion of the Court at the re-hearing was a matter for the Court to decide and I am not prepared to hold that these proceedings would be vitiated, because these documents at the discretion of the trial Court were used as evidence at the re-hearing. Moreover, the learned Judge in the lower appellate Court, apart altogether from those documents, relied upon certain dakhilas which were at any rate some evidence in support of the very issue upon which the disputed documents were used as evidence. It cannot be said that the finding of the lower appellate Court was arrived at without evidence being before it upon which it reasonably could arrive at the decision to which it came. That point, therefore, fails. The second point taken on behalf of the appellant is that as the review was granted upon one ground although the application for review was based upon another ground the subsequent proceedings were all vitiated. It is enough to say that in the circumstances of this case we should not be disposed to consider such a point, unless it was taken in the lower appellate Court. No objection, however, to the validity of the review proceedings was taken in the lower appellate Court and, in the circumstances, we do not propose to consider it on second appeal. The result is that this appeal fails and must be dismissed with costs.

Page, J.

I agree.