T.K.Balakrishnan Nair vs Thalanur Thodukayil Aboobacker on 5 December, 2016

[Cites 12, Cited by 0]

Kerala High Court

T.K.Balakrishnan Nair vs Thalanur Thodukayil Aboobacker on 5 December, 2016

All these review petitions are filed by T.K.Balakrishnan Nair, who was the appellant in A.S.No.344/2001, A.S.No.197/2002 and A.S.No.198/2002. All these appeals were originally dismissed by this Court by a common judgment dated 03/09/2015. To consider the review petitions, a brief reference to the facts led to the filing of the said review petitions are also necessary.

2. Late Chandunny Nair, who was the Karanavar of the Thekkekalathil tharawad acquired properties during his life time and executed a will on 28.03.1911, which was originally deposited in the sub registrar office and after his death registered as document No.20/31 of SRO, Kozhikode. He also executed a codicil by which some modifications are made. After the death of the said Chandunny Nair, R.P.No.1006/2015 & connected cases 2 the properties were devolved upon the beneficiaries. There was a stipulation inhibiting alienation of the properties and permitting utilization only for collecting rent by way of Pattam. If necessity arises, it can be sold or transferred jointly by the male and female members of the beneficiaries together and if any transactions are effected in violation of the same, it will be invalid and persons who do not join can seek for setting aside the same. Thereafter the beneficiaries executed a "Kshemakarar" for proper management of the properties by document No.14606/1948 dated 25.06.1948. While executing the same, B schedule properties which are the subject matter of the litigation on hand was kept in common. Thereafter excluding the above said B schedule properties, all other properties pertaining to the earlier said "Kshemakarar" were partitioned as per a registered partition deed dated 19.11.1949. As per the said partition deed, all the executants were given full enjoyment of the power of alienation. The review petitioner herein is also a party to the above referred partition deed. His case is that he was in America till August 1995.

R.P.No.1006/2015 & connected cases 3

3. O.S.No.70/1997 was a suit filed by the review petitioner herein, wherein the main relief sought for was recovery of property on the strength of title and the said suit was dismissed by a common judgment by the lower court.

4. O.S.No.38/1996 was a suit for partition. In the said suit, the sole plaintiff had claimed 9/86 shares in the properties and later supplemental plaintiff was impleaded as an assignee and his claim was for 84 = shares out of 86 shares in the suit properties. The appellant herein was the defendant therein. The said suit was decreed by a common judgment referred above and a preliminary decree was passed for partition by allotting 84 = shares to the supplemental plaintiff and 1 = shares to the appellant herein.

5. O.S.No.69/1997 was filed by the review petitioner herein, where the main relief sought for was for a decree of permanent injunction against tresspass. The said suit was dismissed by the common judgment referred above.

6. O.S.No.44/1997 was filed by one Mohammed Basheer as R.P.No.1006/2015 & connected cases 4 plaintiff where the relief sought for was prohibitory injunction, which was dismissed by the common judgment referred above.

7. All these cases were tried together and disposed of by a common judgment. Aggrieved by the said judgment, A.S.No.344/2001 was filed by the review petitioner herein against the judgment and decree in O.S.No.38/1996. A.S.No.197/2002 was filed by the review petitioner against the judgment and decree in O.S.No.70/1997 and A.S.No.198/2002 was filed against the judgment and decree in O.S.No.69/1997. No appeal was filed by the plaintiff in O.S.No.44/1997. All these appeals were heard and dismissed by this Court by a common judgment dated 03/09/2015. All these review petitions are filed by the appellant in the above appeals stating that there are errors of fact and law apparent on the face of the record.

8. This being a review petition, the question firstly to be considered is that whether the points raised by the review petitioner will bring his case under the purview of review jurisdiction or not. Section 114 as well as Rule 1 of Order XLVII of the Code of Civil R.P.No.1006/2015 & connected cases 5 Procedure, 1908 deals with the review. Section 114 and Rule 1 of Order XLVII of C.P.C. read as follows:

"114. Review Subject as aforesaid, any person considering himself aggrieved,-

(a) by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred,

(b) by a decree or order from which no appeal is allowed by this Code, or

(c) by a decision on a reference from a court of small causes, may apply for a review of judgment to the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit."

ORDER XLVII - Review

1. Application for review of judgment (1) 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 ( exercising R.P.No.1006/2015 & connected cases 6 small cause jurisdiction ), and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge 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, or for any other sufficient reason, 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.

R.P.No.1006/2015 & connected cases 7

9. Rule 1 of Order XLVII circumscribes the scope of review i.e. Section 114 of C.P.C. is not actually giving the ambit of interference that can be made in a review. That is, it is only an enabling section, whereas Rule 1 of Order XLVII actually subscribes or prescribes the parametres to be followed in a case of review . In other words, it prescribes the grounds upon which an application for review can be made Thus, a further hearing will be permitted to the aggrieved parties by the judgment only when there is some mistakes or error apparent on the face of the records or for any other sufficient reason.

10. Surely, "any other sufficient reason" cannot be expanded in such a way as to embrace all grounds that can be taken in an appeal. The words " or for any other sufficient reason' means a reason sufficient on grounds; at least analogous to those specified in the rule ( see M.M.B. Catholicos v. M.P.Athanasius ( AIR 1954 SC 526). In Board of Revenue and another v. P.K.Syed Akbar Sahib (AIR 1973 KERALA 285), this Court held the words ' or for any other sufficient reason' should be understood ejusdem generis with the two reasons R.P.No.1006/2015 & connected cases 8 immediately preceding them. Earlier, as back as in 1922, privy council analysed the sentence "any other sufficient reason" found in Section 114 r/w Order XLVII Rule 1 of C.P.C. and found that it means a reason sufficient on grounds atleast analogous to those specified immediately previously (AIR 1922 Privy Council 112).

11. When dealing with the limitation of review, in a short but well quated decision, in Aribam Tuleshwar Sharma v. Aribam Pishak Sharma ([(1979) 4 SCC 389], the Apex Court in paragraph 8 observed as follows :

" It is true there is nothing in Article 226 of the Constitution to preclude the High Court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, R.P.No.1006/2015 & connected cases 9 after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a court of appeal. A power of review is not to be confused with appellate power which may enable an appellate court to correct all manner of errors committed by the subordinate court."

12. This judgment was followed by the Apex Court in Meera Bhanja v. Nirmala Kumari Choudhury [(1995) 1 SCC 170] and held that " an error apparent on the face of the record for acquiring jurisdiction to review must be such an error which may strike one on a mere looking at the record and would not require any long drawn process of reasoning. The relevant portion of the said judgment is as R.P.No.1006/2015 & connected cases 10 follows :

"8. It is well settled that 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."

13. The learned counsel appearing for the review petitioner brought to our notice the decision of the Apex Court in Inderchand Jain (D) through L.Rs. v. Motilal (D) through L.Rs. ( 2009 KHC 4496). Paragraph 9 of the said judgment deals with the power of a review court. The relevant portion of paragraph 9 reads as follows :

" An application for review would lie inter alia when the order suffers from an error apparent on the face of the record and permitting the same to continue would lead to failure of justice. In Rajendra Kumar v. Rambai ( AIR 2003 SC 2095), this Court held :

" The limitations on exercise of the power of review are well settled. The first and foremost requirement of entertaining a review petition is that the order, review of which is sought, suffers R.P.No.1006/2015 & connected cases 11 from any error apparent on the face of the order and permitting the order to stand will lead to failure of justice. In the absence of any such error, finality attached to the judgment/order cannot be disturbed."

The power of review can also be exercised by the court in the event discovery of new and important matter or evidence takes place which despite exercise of due diligence was not within the knowledge of the applicant or could not be produced by him at the time when the order was made. An application for review would also lie if the order has been passed on account of some mistake. Furthermore, an application for review shall also lie for any other sufficient reason."

14. Thus, summarising the essence of all these decisions, it can be said in a nut shell that to invoke review jurisdiction a mere glance on the records should reveal the error or mistake and perpetuating the same will lead to failure of justice. Any analogous ground also will R.P.No.1006/2015 & connected cases 12 empower the court to invoke this jurisdiction, but a denovo approach on merit is barred, which is the sphere of appellate jurisdiction over the impugned order.

15. On a perusal of the review petitions, it can be seen that 47 grounds are raised in R.P.No.1006/2015. Thus, prima facie it can be seen that it is not the case of the review petitioners that the error is apparent and will strike on a mere looking at the record. First few grounds are quoted hereunder :

"1. The decision of this Hon'ble Court, it is submitted with respect, suffers from errors apparent on the face of the records.

2. It is submitted with respect, that the finding in para 39 of the judgment that the parties decided to partition the property after coming into force of the Marumakkathayam Act without any restriction on alienation is based on no material whatsoever.

3. The observation of this Hon'ble Court, it is R.P.No.1006/2015 & connected cases 13 submitted with respect, that the stipulations in Ext.A1 have been drastically modified by Exts.A2 and A3 is illegal, erroneous and unsustainable.

4. This Hon'ble Court, it is submitted with respect, has failed to see that the suit properties have not been partitioned by Ext.A2 or Ext.A3.

5. This Hon'ble Court, it is submitted with respect, ought to have noticed that Ext.A2 and A3 confer certain additional rights and benefits on the members of the family in respect of the Tharawad house. In particular, a right of entry and residence as the owner is provided for in Ext.A3.

6. The finding of this Hon'ble Court, it is submitted with respect, in para 41 and 42 of the judgment that there is no temple in plaint B schedule item No.2 is illegal, erroneous and unsustainable.

7. Ext.A7 and A8 coupled with the recitals in R.P.No.1006/2015 & connected cases 14 Ext.A1 to A3 would establish the existence of a temple in plaint B schedule item No.2.

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16. The above quoted grounds and 40 other grounds taken in the review petitions would bring the same only under the purview of the power of the appellate court which can correct all manner of errors, if any, committed by this court.

17. In this case, the submission of the learned counsel for the review petitioner is that the court went wrong in not allowing the appeal on a misconceived notion that there is no pleading under Section 4 of the Partition Act and it is also the submission that a finding on merits on the elements that mix up such a plea should not have been entered especially when the said plea can be raised even in execution stage i.e. without a plea, the issue should not have been settled.

18. In this case, paragraphs 13 to 20 of the judgment of this R.P.No.1006/2015 & connected cases 15 court categorically describe the argument advanced by the learned counsel for the appellant before this court. A portion of paragraph 15 of the judgment in this regard is relevant to be quoted. It reads as follows :

" It is submitted that the court below did not consider the true effect of Section 4 of the Partition Act, 1883, Section 22 of the Hindu Succession Act and Section 44 of the Transfer of Property Act."

19. It is also relevant to quote ground No.5 of the appeal memorandum in A.S.344.2001 which states as follows :

" The learned Judge erred in not applying correctly the provisions in the Partition Act, the Hindu Succession Act, the Transfer of Property Act, the Madras Marumakkathayam (Amendment)Act, 1958, the Madras Marummakkathayam Act 1932 and the Joint Hindu Family System ( Abolition) Act, 1976 to the facts and circumstances of the case and due to faulty reasoning, R.P.No.1006/2015 & connected cases 16 has misapplied the provisions in these Acts and held against the appellant."

20. Thus, a combined appreciation of the grounds as well as the arguments advanced across the Bench, it cannot be held that this court went wrong in arriving at a finding on the above grounds and arguments. Among the 47 grounds raised in the review petition, yet another ground is relevant to be quoted for the disposal of this review petition. Ground No.28 is as follows :

" 28. The right to invoke Section 4 of the Partition Act, 1883 is available till delivery of the properties pursuant to the final decree. Hence, if this Hon'ble Court was of the view that there is no sufficient pleading on record under Section 4 of the Partition Act, 1883, then, all questions regarding that aspect should have been left open for a decision at a later stage. Instead, after observing that there is no pleading or evidence, the finding entered that the petitioner is not entitled to the benefit of Section 4 of the Partition Act, 1883, is illegal, erroneous and unsustainable."

21. There also, the specific stand of the review petitioner is that R.P.No.1006/2015 & connected cases 17 there should not have been a finding in respect of Section 4 of the Partition Act, 1983. When a counsel advanced an argument on the basis of a ground raised in appeal, it cannot be said that the court has committed any error in considering the same and arriving at a finding while disposing of the case.

After going through all the grounds raised in the review petitions, we are of the considered view that the grounds raised do not reveal any glaring error or patent mistake crept in the judgment and apparent on its face or any analogous one. The grounds raised are only grounds that can be raised in an appeal and we are not hesitant to say that it is only an appeal memorandum in disguise of a review petition. It is held that the review petitions are not maintainable and hence all the review petitions are dismissed accordingly. No order as to costs.

C.T.RAVIKUMAR, JUDGE K.P.JYOTHINDRANATH, JUDGE sv.

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