Madras High Court
The Tamil Nadu Housing Board Rep. By ... vs A. Viswam And 10 Ors. on 16 March, 1995
Equivalent citations: 1995(1)CTC493
ORDER Arumugham, J.
1. By invoking Section 114 of the Code of Civil Procedure and Order 47 Rule 1 C.P.C, the Tamilnadu Housing Board sought to review the judgment and decree rendered by this Court by Justice Swamidurai, J. as he then was. in Second Appeal No. 1526 of 1988 dated 7-4-1994 on the ground of legal error causing injustice to the appellant herein.
2. The suit property, a land situated in Survey No. 140/4 in Kodambakkam village within the Registration district of Madras bounded on North by 8th Avenue R.S.No. 140/3, on east by property of Appavoo Mudaliar and 48th street on the west by 1st Avenue Main Road, on south by plot -30 with the superstructure thereon and marked in the plaint sketch filed along with the plaint was claimed to have belonged to one Mr. Viswam, the 1st plaintiff, who died during the pendency of the proceedings, and consequently his legal representatives 2 to 11 were brought on record. Claiming title on the basis of a long adverse possession pursuant to the grant made by one Appavoo Mudaliar to the 1st plaintiff Viswam long back apprehending interference, by the Tamilnadu Housing Board under the pretext of the acquisition done to the surrounding area, the relief of permanent injunction was prayed for in the suit filed by the said Viswam. The suit was resisted by the Tamilnadu Housing Board by filling a written statement specifically denying the very title of the plaintiff to the land and contending that the same has been acquired long back and for which compensation amount duly fixed, has been paid already and out of grace and sympathy, the plaintiff was allowed to reside therein by putting a hut and however, filing of a suit without giving notice to the Authorities as provided under Section 138 of the Tamilnadu Housing Board Act, is clearly a total bar and that even so, the Housing Board has got possession from the Government after the acquisition proceedings were over and thus the suit filed by the plaintiff was not maintainable.
3. On recording the oral and documentary evidence, the Trial Court dismissed the suit of the plaintiff in its entirety. However, on appeal in A.S.N0.60 of 1985, the learned lower appellate Court Judge viz., the V Addl. Judge, City Civil Court, Madras by his judgment dated 26-12-1985 allowed the appeal by accepting the case of the plaintiff and thus granted a decree in favour of the plaintiff who is the respondent herein. Aggrieved at this, the unsuccessful defendant preferred Second Appeal No. 1526 of 1988 before this Court. After hearing the respective parties in detail, my learned brother Justice SwamiduraiJ, as he then was. on 7-4-1994, delivered the judgment confirming the judgment and decree passed by the lower appellate court and thus rejected the second appeal. On the basis of certain manifest error since resulted in great injustice to the appellant this review was sought for by and on behalf of the appellant as aforesaid.
4. Mr. T.R.Rajagopalan. learned senior counsel appearing for the petitioner-appellant dwelt his first attack upon the judgment in question for the purpose of review by my notice the very averments made in paragraphs-3, 4 and 5 of the plaint, which were mostly relied upon by all the courts concurrently which are as hereunder:
"para.3: The plaintiff is the absolute owner of Plot A-29, I Avenue. Ashok Nagar, Madras-83 more fully described in the Schedule hereunder. it being his ancestral property and the plaintiff has been in peaceful continuous and uninterrupted possession of the property for the past over 30 years".
"para.4: In the year 1966 there has been proceedings for the development of the nearby lands and there had been land acquisition proceedings for the purpose of rehabilitation of slum dwellers in the nearby Kanniappa Nagar, but the same lands had been later on abandoned since the purpose for which the lands were sought to be acquired no longer existed. The plaintiff submits that the land adjacent in the plaintiffs property was owned by one Appavoo Mudaliar for whom the plaintiff was holding power of attorney".
"para.5: The plaintiff submits that the defendants have no manner of right, title or interest in the property belonging to the plaintiff wherein the plaintiff and his family are living and which is his ancestral house. The defendant is not entitled to interfere in any manner with the possession and enjoyment of the plaintiff of the schedule mentioned property".
5. While drawing my attention to above passage, the learned senior counsel would contend that the learned single Judge, while concurring with the finding of the lower appellate Judge, has virtually failed to note that the plaintiff who has approached the court of law for the relief of bare injunction, never stated anything in detail with regard to his acquisition of title or the source and the manner of title he had and pursuant to which he had been in enjoyment of the suit property, the failure of which exercise clearly is an apparent error committed by the learned single Judge and that therefore, the judgment rendered by the learned single Judge has became vulnerable to review. The next attack projected by the learned senior counsel for the petitioner is that Section 138 of the Tamilnadu Housing Board contemplated the mandatory notice to be given to the defendant prior to tire filing of the suit a sine qua non for any legal exercise and that therefore, giving the finding by totally overlooking the same by the learned single Judge, is also a similar grave error which comes within the purview of Order 47 Rule 1 and Section 114 of the Code of Civil Procedure.
6. Mr.T.R.Mani, learned senior counsel appearing for and on behalf of the respondent while controverting the two grounds projected before me, has contended that though the relief asked for in the plaint is one for bare injunction, the Court cannot overlook the fact while granting the relief. The Court must identify the very possession of the property of the person who seeks remedy which, of course, must be legal and that if it is identified, then he is entitled to be provided with the same remedy and the question of going into the title or the source of title is only an incidental one and it would, in no way, tilt the matter and therefore, even assuming mat the acquisition of title or the source of title, is not elaborately detailed in the plaint, the findings by the lower appellate Court as well as the learned single judge, are perfectly correct and as such there exists no error of law involved.
7. In so far as the second contention is concerned, the learned senior counsel would reiterate his stand taken before the learned single Judge which has been referred to in the judgment itself and that therefore, it requires no further elaborate argument in this regard. By making the above contention, learned senior counsel would also contend that there was no error erupted in any manner in the judgment under this review. If at all the petitioner is aggrieved for any reason upon the concurrent finding, then it is always open to the petitioner to go on appeal to pursue his remedy and not by way of this review application.
8. A careful reading of the judgment delivered by the learned single Judge on 7-4-1994 in Second Appeal No. 1526 of 1988 would make it clear that every aspect of the adduced legal evidence has been considered by both the Courts and accordingly, the learned single Judge, after having a thorough discussion, confirmed the finding given by the lower appellate Judge. It is worthwhile at this stage to note that the alleged error was found within pleadings not specifically spelt out in the plaint pertaining to the source of title acquired or manner of title got through by the plaintiff-respondent. I am totally unable to accept the contention of the learned senior counsel that the above omission identified in the plaint is not an error of law at all for the simple reason that while considering the relief of bare injunction asked for in the plaint, the main element to be decided by a Court for ascertaining a prima facie case in order to grant equitable remedy of injunction, is mere possession and not with regard to title and even so, take it for granted for a moment, the question of title can be looked into, but however very incidentally and not in detail. If a person claiming possession or to be in possession, is alleged to be a trespasser supposed to be in lawful possession thereof, it is for that person then to prove such a defence by placing acceptable, cogent and legal evidence. If I have a look in the judgment rendered by the lower appellate judge as well as the learned single Judge of this Court, I am constrained to hold that what legal requirement became absolutely necessary, has been fulfilled and that therefore, there is no concept of error.
9. As far as the second contention is concerned, the learned a single Judge had himself elaborately discussed in the second appeal and has clearly spelt out as to how Section 138 of the Tamilnadu Housing Board Act will take its operative portion to the facts of the instant case. Therefore, I feel, no more exercise is required in the context of absence of any legal error in the judgment.
10. In Meera Bhanja (Smt) v. Nirmala Kumari Choudhury (Smt) (1955- 1 SCC 170 at 177). The Supreme Court while dealing with the scope of the review under Order 47 Rule 1 C.P.C. has observed as follows:
"In our view the aforesaid approach of the Division Bench dealing with the review proceedings clearly shows that it has overstepped its jurisdiction under Order 47 Rule 1 C.P.C. by merely styling the reasoning adopted by the earlier Division Bench as suffering from a patent error, It would not become a patent error or error apparent in view of the settled legal position indicated by us earlier. In substance, the Review Bench has re appreciated the entire evidence, sat almost as court of appeal and has reversed the findings reached by the earlier Division Bench. Even if the earlier Division Bench's findings regarding C.S. Plot No. 74 were found to be erroneous, it would be no ground for reviewing the same, as that would be the function of an appellate court. Learned counsel for the respondent was not in a position to point out how the reasoning adopted and conclusion reached by the Review Bench can be supported with in the narrow and limited scope of Order 47, Rule 1 CpC. Right or wrong, the earlier Division Bench Judgment had become final so far as the High Court was concerned. It could not have been reviewed by reconsidering the entire evidence with a view to finding out the alleged apparent error for justifying the invocation of review powers. Only on the short ground,therefore, this appeal is required to be allowed."
11. The Supreme Court in the above case law, has listed out legal ratio to be followed in the review proceedings in the following words.
" The review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47, Rule 1 C.P.C. The review petition has to be entertained only on the ground of error apparent on the face of the record and not on any other ground. An error on the face of record must be such an error which must strike one on mere looking at the record and would not require any long drawn process of reasoning on points where there may conceivably be two opinions. The limitation of powers of court under Order 47 Rule 1 C.P.C. is similar to the jurisdiction available to the High Court while seeking review of the orders under Article 226."
12. In Devaraju pillai v. Sellayya pillai the Supreme Court has pronounced the scope and object of Sections 114, 100 and Order 47 Rule 1 C.P.C. in the following words:
" On an application being filed for review of the judgment of the learned single Judge, another learned single Judge of the High Court-the Judge who heard the Second Appeal not being available- sitting in Judgment over the decision of the learned Judge who decided the Second Appeal construed the document differently and held that it was a will and not a deed of settlement. This the learned single Judge was not entitled to do. If the party was aggrieved by the judgment of the learned single Judge sitting in Second Appeal the appropriate remedy for the party was to file an appeal against the judgment of the Learned single Judge. A remedy by way of an application for review was entirely misconceived and we are sorry to say that the learned single Judge who entertained the application totally exceeded his jurisdiction in allowing the review and upsetting the judgment of the learned single Judge, merely because he took a different view on a construction of the document."
13. Order 47 Rule 1 the Code of Civil Procedure runs like this--
" Order 47 Rule 1:(l) Any person considering himself aggrieved-
(a) by a decree or order from which an appeal is allowed. but from which no appeal has been preferred.
(b) by a decree or order from which no appeal is allowed, or
(c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not with in his know ledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order.
(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent he can present to the Appellate Court the case on which he applies for the review.
Explanation:- The fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a Superior Court in any other case, shall not be a ground for the review of such judgment".
14. In the light of the above position of law, enunciated clearly by the Apex Court, in the context of Order 47 Rule 1 C.P.C., it is made clear that unless some mistake or error apparent on the face of the record, is identified before a Court of law by an aggrieved party on the judgments or orders rendered by any Court or for any other sufficient reason which causes substantial injustice to the party by the very reasoning of the error or mistake committed in approaching the dispute, no Court is entitled to allow the review and if such course is allowed to be followed, it would, in my construed view, create not only a bad precedent but also conflict of decisions provide by a parts to the litigation to take an undue advantage. Therefore, for the very reasoning of non-availability of any error based on the above two grounds, I am not inclined to accept the very contentions raised by the learned counsel for the petitioner. On the other hand, I am fully satisfied to endorse my view to the conventions raised by the learned counsel for the respondents. In short to say, there is no merit identified in this Review.
15. Accordingly, I am constrained to hold that there exists no need to review the judgment rendered by the learned single Judge of this Court above referred to.
16. In the result, the Review Application fails and stands dismissed. However there is no order as to costs in view of the facts and circumstances of the case.