Kerala High Court
Kumaran Vaidyar And Ors. vs K.S. Venkiteswaran And Ors. on 20 September, 1991
Equivalent citations: AIR1992KER26, AIR 1992 KERALA 26, (1992) ILR(KER) 1 KER 171, (1991) 2 KER LJ 665, (1991) 2 KER LT 621
ORDER
1. The question which arises for consideration in this petition is whether a civil court possesses the power to review, suo motu, its concluded finding on an issue in a suit.
2. The defendants Nos. 7, 8 and 9 in O.S. No. 218/86 on the file of the Munsiff, Ottappalam, impugn the order dated 16-2-1989 made by the learned Munsiff. By the impugned order, the learned Munsiff, without any application by either party, and suo motu, reviewed his order dated 25-11-1988 by which he had held that the question whether the defendant No. 7 is a tenant of 11 acres and 75 cents "did not arise" for consideration, and therefore declined to make reference to the land Tribunal under Section 125(3) of the Kerala Land Reforms Act.
3. The suit is for partition and separate possession of 8/28th share of plaintiffs property. Partition is claimed against the defendants 1 to 6. The 7th defendant urged, in the written statement, that he was a tenant of 11 acres 75 cents out of the suit property. The lease was allegedly created by the father of the plaintiff and the defendants 1 to 6. The issues were raised in the suit. Issue No. 3 which reads as under was tried as a preliminary issue:
"Whether the 7th defendant has tenancy in respect of 11 acres and 75 cents of plaint property?"
The learned trial Judge heard and decided the issue No. 3 as preliminary issue on 25-11-1988. The learned trial Judge held that in view of the fact that the defendants 7, 8 and 9 had obtained purchase certificates under the Kerala Land Reforms Act, the question of tenancy did not "arise", as, in his opinion, the purchase certificates implied that the defendant No. 7 was the tenant.
At the trial of the remaining issues, the P.W.1 was examined on 26-11-1988. Defendant No. 7 produced Exts. B1 to B23. Thereafter the trial concluded and the suit was posted for arguments which were heard on 3-2-1989. The arguments concluded and the suit was posted for judgment on 16-2-1989. When the parties were expecting judgment in the suit, the learned Judge, on his own, decided to review the order dated 25-11-1988 on the preliminary issue No. 3. The reason for the review is this:--
Exts. X1, X2 and B11 which are purchase certificates obtained by defendants 7, 8 and 9 respectively, were obtained pursuant to the orders in S.M. 1035/82, 1036/82 and 1034/82 of the Land Tribunal No. IV, Ottapalam. The learned Judge discovered from the record produced during the trial that neither the plaintiff and his father nor the Jenmi were parties to the proceedings in which the purchase certificates were granted. He therefore concluded that the purchase certificates were not binding on the plaintiff and defendants 1 to 6 between whom a decree for partition is claimed. In a nut-shell, the learned trial Judge found that the inference of tenancy drawn by him from the record and expressed in his order dated 25-11-1988 was erroneous as it was based on documentary evidence which, as he subsequently discovered, did not warrant such a judgment.
4. Learned counsel for the petitioners/ defendants urged two points :
(i)The trial Court has, on the basis of evidence and arguments, held that the issue about the tenancy "did not arise". The judgment in regard to the finding of issue No. 3 is final and cannot be altered except under Section 152 of the Code of Civil Procedure or upon review (Order 20, Rule 3 of the Code of Civil Procedure).
(ii) The law permits a litigant aggrieved by an order to apply for a review of the judgment on grounds set out in Order 47, Rule 1 of the Code of Civil Procedure. The power of review is created by the statute and is not inherent in a Court. In any event Court has no power to review its order suo motu.
5. The learned trial Judge having heard and decided issue No. 3 came to the conclusion that the issue about tenancy of the defendant No. 7 did not arise for consideration. This finding is conclusive and binding between the parties. The learned trial Judge had no power to alter it except by way of correction under Section 152 of the Code of Civil Procedure or upon a review of that order. This is not a case of correction of a mistake. This therefore leads to the inevitable question. Does the Court have power of review suo motu?
6. Before considering the judicial authorities relating to the power of review suo motu, it is necessary to understand the nature of the process of review. To review means to view again. It is essentially a process of revising an earlier conclusion. In judicial proceedings review means to re-examine a case in certain specified and prescribed circumstances (Gopinath Deb v. Budhia Swain, AIR 1983 Orissa 31) is not inherent in a Court, but is a creature of statute (Grindlays Bank v. Central Govt. Industrial Tribunal, (1981) 1 SCWR 236 : AIR 1981 SC 606). Therefore, such power must be sought in a statutory provision. Then again, where a statute creates and confers on the Court, a power of review, such power must be exercised only in the circumstances stated in the statute creating such power. I am here concerned with the power to review suo motu and not the power to review under a statutory authority.
7. I will firstly consider in paragraphs 8-13 below, judicial authorities cited in support of the power of review suo motu.
8. Learned counsel for the respondents relied upon Sankaran v. Raman, 1982 Ker LT 237, which arose out of a suit for injunction instituted in 1968 before the commencement of the Kerala Act 35 of 1969 which amended Section 125 of the Kerala Land Reforms Act. It is necessary to understand the ratio of this judgment. The suit was for injunction simpliciter. The question was about the plaintiffs possession of property items Nos. 3 and 4. The trial Court dismissed the suit on 30-11-1973 after finding that the plaintiff had not proved possession of the disputed property. The appellate Court remanded the suit by its order dated 13-10-1976 with a direction that the trial Court shall refer the question of tenancy of the defendants to the Land Tribunal under Section 125(3) of the Kerala Land Reforms Act. The order of remand impugned in Sankaran's case was based on the judgment in Lissy v. Kuttan, 1976 Ker LT 571 (FB) which, as pointed out in Sankaran, 1982 Ker LT 237 is contrary to the Supreme Court's judgment in Eapen Chacko, 1977 Ker LT 1 : (AIR 1976 SC 2610) and the judgment of five Judge Bench of this Court in Kesava Bhatt, 1979 Ker LT 766 : (AIR 1980 Kerala 40) (FB). In Eapen Chacko (AIR 1976 SC 2610) the Supreme Court laid down that in suits instituted prior to the commencement of the Kerala Act 35 of 1969, the Civil Court itself has jurisdiction to decide the question of tenancy and the question need not be referred to the Land Tribunal. In Kesava Bhatt, 1979 Ker LT 766: (AIR 1980 Kerala 40) (FB) it was held that in a suit for injunction the question of defendants' tenancy does not arise because all that need be proved by the plaintiff is his possession. In view of the law laid down in the two cases, Balakrishna Menon, J. concluded that the appellate Court was in error in remanding the case to the trial Court to enable the latter to make a reference to the Land Tribunal on the question of tenancy, (Sankaran v. Raman, 1982 Ker LT 237) as the Civil Court possessed the jurisdiction to decide the question of tenancy. What is relied upon by counsel for the defendants is the following observation by Balakrishna Menon, (J):
"The Court (Civil Court) itself has a duty to review its order."
The respondents who rely upon the above quoted observation ignore that the decision in Sankaran, (1982 Ker LT 237) was founded on the fact that the error committed by the Appellate Court in remanding the case was "in respect of a matter of procedure for disposal of the case before the Civil Court". This observation qualifies the Court's "duty to review" and limits it to cases where the Civil Court realises its "procedural" error.
9. Now, what is a procedural error?. "Procedure" is what regulates or prescribes the mode of proceeding with or the conduct of affairs. The word "procedure" is often used to denote "procedural" law as distinct from substantive law. Procedural law regulates the conduct of cases. Substantive law defines, confers or creates legal rights or legal status or imposes and defines nature and extent of legal duties. As against this, the function of "procedure" is to provide the machinery or the manner in which legal rights, status or legal duties may be enforced by a Court of law or Tribunal, Halsbury's Laws of England Vol. 37, Paragraph 10, Stroud's Judicial Dictionary Vol. 4, Page 1987-88, 5th Edition.
10. Since "procedure" is the mode or form of conducting judicial proceedings it follows that "procedural error" is an error of form or mode of conducting judicial proceedings. Now, what was the error committed by the Appellate Court in Sankaran's case? The error was that the Appellate Court relying upon the erroneous decision in Lissy v. Kuttan, 1976 Ker LT 571 (FB) remanded the case so that the trial Court could refer the issue of tenancy to the Land Tribunal. The error was in relation to the manner or mode of deciding the question of tenancy. The error did not relate to the finding about the tenancy which is in the realm of substantive law. When the law in regard to the obligation to refer a question to the Land Tribunal is settled, the Court is obliged to hear and dispose of the appeal in accordance with such law. What finding it delivers relates to the merits of the case and may fall in the area of substantive rights. But how it choses to decide is clearly in the realm of procedure. The procedure of appeals involves matters like the form of the memorandum of appeal, grounds that may be urged, remand of the cases, hearing of parties and so on. Ordering remand of a case is a step in the mechanism of hearing and disposal of appeals. Code of Civil Procedure Rule 23, Order 41. This procedural step resorted to by the Appellate Court in Sankaran's case, 1982 Ker LT 237 was found to be erroneous. Similarly making a reference to the Land Tribunal is a mode of obtaining a finding on the question of tenancy. When a Civil Court makes a reference to the Land Tribunal it employs the mechanism of obtaining a finding on the issue referred to the Land Tribunal. This falls in the area of procedure. If, on the other hand, the Civil Court decides the rights to tenancy its action falls within the realm of substantive law. For these reasons, I hold that Sankaran's case dealt with a procedural error. In the present case, the trial Judge decided a substantive question and subsequently found it erroneous. The error is not of a procedural nature.
11. In considering the application of the observations in Sankaran's case (1982 Ker LT 237) emphasizing the duty of a Court to review and the inherent power of a Court to review, the fundamental postulates of that case should be kept in mind. In order to attract the application of those observations, the error must be of procedural nature. I have explained in the foregoing paragraphs the meaning of "procedure" and how the error dealt with in Sankaran's case was of a procedural nature.
12. Now, consider the facts of this case. Was the trial Judge correcting a procedural error? On 25-11-1958 he held that the question of tenancy did not arise because the ownership certificate was based on the status of tenancy. On 16-2-89 he discovered that the ownership certificates could not imply tenancy, and therefore the question of tenancy "arises". Whether question of tenancy "arises" within the meaning of Section 125(3) of the Kerala Land Reforms Act, is not a question relating to the mode, manner or mechanism of the conduct of proceedings. It is a question about substantive right. On the evidence, he concluded that the question did not arise. He committed no error of procedure in coming to such a conclusion.
13. In State of Gujarat v. Sardarbegum, (1976) 2 SCWR 404 : (AIR 1976 SC 1695) an application for review was made by the State of Gujarat before the High Court. The order sought to be reviewed was based on a concession by the State that political pension of Rs. 500/- p.m. granted to the opposite party could not be abolished under the Bombay Personal Inam Abolition Act. In consideration of this concession the opposite party deleted the prayer for payment of pension in perpetuity, thus limiting the claim of pension to the lifetime of the opposite party who died during the pendency of the writ petition in the High Court. The High Court, exceeded the scope of the petition by granting pension to the heirs of the petitioners thereby extending the grant beyond the lifetime of the petitioner. This was the patent error complained of in the application for review. In the context of these facts the Supreme Court observed (at p. 1697, Para 8 of AIR):
"This patent error. ...... .which was perhaps due to inadvertence -- could and should have been suo motu corrected by the High Court in the exercise of its inherent jurisdiction ........"
The Supreme Court refers to the "inadvertence" clearly attracting Section 152, and excluding the power of review under Order 47 of the Code of Civil Procedure.
14. The question in Grindlays Bank v. Central Govt. Industrial Tribunal, (1981) 1 SCWR 236 : (AIR 1981 SC 606) was whether the Industrial Tribunal, acting tinder the Industrial Disputes Act has the power to set aside an ex parte award made by it. Negativing the argument that an application for setting aside the award was an application for review, the Supreme Court, reiterated the principle that power of review is not an inherent power, and it must be conferred either specifically or by necessary implication (The Supreme Court explained Narshi Thakershi v. Pradyumansinghji, AIR 1970 SC 1273). Then it held (at p. 610, Para 13 of AIR):
"Obviously when a review is sought due to a procedural defect, the inadvertent error committed by the Tribunal must be corrected ex debito justitiae to prevent the abuse of its process and such power inheres in every Court or Tribunal."
Significantly the Supreme Court has used the expressions "procedural defect" and "inadvertent error" which limit the power of review suo motu to such errors.
15. The cases of Sardar Begum (AIR 1976 SC 1695) and Grindlays Bank (AIR 1981 SC 606) dealt with procedural errors or inadvertent errors. They do not lay down that where an issue in a suit has been conclusively decided the Court possesses the power to review, the conclusion suo motu. They have no application to the facts of this case.
16. The principles emerging from the judicial decisions from which the respondents seeks support are these:
(1) There is no inherent power in a Civil Court to review its order. Such power has to be created by statute (Grindlays Bank v. Central Govt. Industrial Tribunal, (1981) 1 SCWR 236 : (AIR 1981 SC 606)).
(2) Where a Court realises that it has committed a procedural error, it may suo motu review its order (Sankaran v. Raman, 1982 Ker LT 237).
(3) The inherent powers cannot be used by a Court where a party has remedy provided elsewhere in the Code (Nain Singh v. Koonwarier, AIR 1970 SC 997).
17. In my opinion the principles set out in paragraph 16 do not advance the argument in support of the power of review suo motu.
The judgment in Sankaran, 1982 Ker LT 237, has no application to this case because the error sought to be corrected by the trial Court is not a procedural error. It relates to the correctness of its earlier finding of fact and not to the mechanism or mode by which it was arrived at (Sardar Begum, (1976) 2 SCWR 404 : (AIR 1976 SC 1695), Grindlays Bank, (1981) 1 SCWR 236 : (AIR 1981 SC 606) and Newabganj Sugar Mills Co. v. Union of India, AIR 1976 SC 1152) do not lay down that a Civil Court possesses the power to review its orders suo motu irrespective of whether the orders suffer from inadvertent error, or procedural error.
18. The Code of Civil Procedure no doubt creates and confers on the Court the power of review. But, such power has to be exercised on (a) an application by a litigant and (b) if the circumstances specified in Rule 1 of Order 47 exist. The power of review exercisable on an application by a litigant and in specified circumstances is not a general absolute power of review. The Code of Civil Procedure does not create general power of review (Viswanathan v. Muthuswamy Gounder, AIR 1978 Madras 221; Damomal v. Union of India, AIR 1967 Bombay 355). The power of review is not inherent in a Court. Inherent power of a Court to review its orders suo motu has been recognised in the very limited cases of procedural errors and inadvertent errors (Sankaran v. Raman, 1982 Ker LT 237; Grindlays Bank v. Central Govt. Industrial Tribunal, (1981)1 SCWR 236 : (AIR 1981 SC606); State of Gujarat v. Sardar Begum, (1976) 2 SCWR 404 : (AIR 1976 SC 1695)).
19. The legality of review suo motu came for consideration in some other judicial decisions. In Viswanathan v. Muthuswamy Gounder, AIR 1978 Madras 221, the Munsiffs order reviewing the earlier order was set aside as without authority. In Municipal Corporation of Delhi v. Sunni Majlis Aukaf, AIR 1968 Delhi 215 it was held that an erroneous order cannot be corrected by resorting to inherent powers. Mohammed Abdul Rauf v. Mostt. Khadeja, AIR 1984 Patna 180, a case from Patna was identical with this case. The subordinate Judge who had decided a preliminary issue reviewed suo motu his finding and arrived at a contrary decision. The Patna High Court held that a Court cannot review its finding on an issue.
20. The law in regard to the Court's power to review its orders suo motu may now be summed up.
Courts do not possess inherent power to review their orders (Grindlays Bank v. Central Government Industrial Tribunal, (1981) 1 SCWR 236 : (AIR 1981 SC 606)). The power to review has to be created by a statute. When power to review is so conferred on a Court, such power should be exercised in accordance with the statutory provisions and in the circumstances stated therein. The Code of Civil Procedure does not create a general power of review (Viswanathan v. Muthuswamy Gounder, AIR 1978 Madras 221; Dammomal v. Union of India, AIR 1967 Bombay 355). The power of review created by Order XLVII of the Code of Civil Procedure has to be exercised in the circumstances stated therein.
As a general rule Civil Courts do not possess the power to review their orders, suo motu (Viswanathan v. Muthuswamy Gounder, AIR 1978 Madras 221; Municipal Corporation of Delhi v. Sunni Majlis Aukaf, AIR 1968 Delhi 215; Mohammed Abdul Rauf v. Mostt. Khadeja, AIR 1984 Patna 180). However, upon discovery of an error of procedural nature Courts may suo motu correct such error, (Sankaran v. Raman, 1982 Ker LT 237; Grindlays Bank v. Central Govt. Industrial Tribunal, (1981) 1 SCWR 236: (AIR 1981 SC 606); State of Gujarat v. Sardar Begum, (1976) 2 SCWR 404 : (AIR 1976 SC 1695)).
21. Having regard to the legal position in regard to Court's power to review, suo motu, and in the circumstances of this case, I hold that the learned trial Judge acted without authority in reviewing his order dated 25-11-1988 and in referring the issue No. 3 to the Land Tribunal. In the result, this petition is allowed and the impugned order is set aside. The learned trial Judge shall dispose of the suit in accordance with law.
The petitioners will get costs from the respondents.