Madras High Court
John D.Britto vs Rita on 26 August, 2014
Author: T.Mathivanan
Bench: T.Mathivanan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 26-08-2014 CORAM THE HONOURABLE MR. JUSTICE T.MATHIVANAN Review Application Nos.73 and 74 of 2014 in S.A.Nos.84 and 777 of 2000 1.John D.Britto 2.J.B.Isabella .. Applicants in Rev.A.73/2014 1.J.Rex @ Rex Mariadoss 2.J.Martin .. Applicants in Rev.A.74/2014 vs. Rita .. Respondent in Rev.A.73/2014 1.Mystle Florance Vanderveen 2.Renold Vanderveen 3.Micheal Vanderveen 4.Patrica Vanderveen 5.Marianne Vanderveen 6.Garden Vanderveen 7.Arthur Vanderveen 8.Peter Vanderveen 9.Darry Vanderveen 10.A.Savarinathan .. Respondents in Rev.A.74/2014 Review Application No.73 of 2014 is preferred under Section 114 of CPC read with Order XLVIII, Rule 1 of CPC against the order of remand dated 18.2.2013 and made in S.A.No.84 of 2000 on the file of this Court. Review Application No.74 of 2014 is preferred under Section 114 of CPC read with Order XLVIII, Rule 1 of CPC against the order of remand dated 18.2.2013 and made in S.A.No.777 of 2000 on the file of this Court. For Applicants in both Reviews: Mr.Srinath Sridevan For Respondent in Rev.A.73/14 and For Respondents 1 to 9 in Rev.A.74/14 : Mr.B.Ramamoorthy For Respondent-10 in Rev.74/14: No Appearance C O M M O N O R D E R
The common order of remand dated 18.2.2013 and made in S.A.Nos.84 of 2000 and 777 of 2000 is sought to be reviewed in these review applications. The Review Application No.73 of 2014 has been filed in respect of S.A.No.84 of 2000 whereas the Review Application No.74 of 2014 has been filed in respect of S.A.No.777 of 2000.
2. With the common ground to review the order of remand dated 18.2.2013 is involved in both the review applications and the parties are also one and the same, both the review applications have been consolidated together, heard jointly and disposed of in this common order.
3. The applicants 1 and 2 in Review Application No.73 of 2014 are the respondents in the S.A.No.84 of 2000 and the plaintiffs in the suit in O.S.No.50 of 1996, whereas the respondent herein is the appellant in S.A.No.84 of 2000 and the defendant in the suit. In so far as the Review Application No.74 of 2014 is concerned, the review applicants are the respondents 1 and 2 in S.A.No.777 of 2000 and the plaintiffs in the suit in O.S. No.108 of 1996, whereas the respondents 1 to 9 are the appellants in the Second Appeal and the defendants in the suit. The 10th respondent is the third respondent in the Second Appeal.
4. As afore stated, the common ground raised by the applicants to review the order of remand dated 18.2.2013 has been extracted as under:-
During the hearing of the Second Appeal, the Hon'ble Judge had negatived the argument of the learned counsel for the appellant or the issue of the need for Letters of Administration for executing a decree against late Vanderveen. The Hon'ble Judge had specifically stated that the remand would be confined to the issue of whether the appellant had prescribed title by adverse possession and would be entitled to adduce rebuttal evidence in this regard on the documents additionally marked in the Appellate Court.
5. Heard Mr.Srinath Sridevan, learned counsel appearing for the review applicants and Mr.B.Ramamoorthy, learned counsel appearing for the respondents.
6. In paragraph No.25 of the common judgment dated 18.2.2013, G.Rajasuira, J., as he then was, has observed as under:
25. Here, that it is a singularly singular case in which the rebuttal evidence to be adduced is in support of prescriptive title, and the additional evidence adduced before the First Appellate Court was relating to possession. So it is out and out a factual issue and the evidence also has to be analysed in that regard. If by directing the First Appellate Court or even the Trial Court to record evidence and submit it to this Court for being decided, then it would amount to deciding the main issue relating to prescription, which is predominantly a factual issue for the first time in Second Appeal, which cannot be legally permissible as per Section 100 of C.P.C., and the aggrieved party would lose one right of appeal. But on the other hand, if the matter is remitted back to the First Appellate Court with a direction to record the rebuttal evidence relating to prescription only and give its finding on that, along with the entire appeal, then all the aggrieved party would have the right to file Second Appeal, which would be in the interest of justice as well as audi alteram partem more appropriate and befitting.
7. In paragraph 26 of the said judgment, the learned Judge has observed as under:-
26. As such, in view of the fact that the case requires rebuttal evidence as put forth by the defendants, such non giving of opportunity to the defendants, in my considered opinion, proves fatal to the ultimate decision rendered by the First Appellate Court, without in any way dealing with other issues decided by the First Appellate Court, I would like to remand the matter back to the First Appellate Court.
8. With this backdrop, let us see the ex-cerpt of the facts:-
The suit property originally belonged to one Vanderveen (first defendant in the suit in O.S.No.108 of 1996 since deceased) who happens to be a Dutch Indian and governed by the Indian Succession Act. He was indebted to - one Dhandapani Chettiar during his lifetime. However, he had committed default in discharging his debts. The said Dhandapani Chettiar, in order to realise the amount, had filed a suit before the Small Causes Court and obtained a money decree.
9. On the strength of the decree, he being the decree holder, Dhandapani Chettiar had taken out execution proceedings and brought the suit properties for sale as Lot Nos.2 and 3 respectively therein. When the properties were brought for sale by the Court, Dhandapani Chettiar, being the decree holder, got permission from the Court and purchased the property, being the successful bidder.
10. In this connection, the review applicants in both the review applications, being the plaintiffs in the suit O.S.Nos.50 of 1996 and 108 of 1996 respectively, have contended that the said Dhandapani Chettiar had taken delivery of possession of the property as per Ex.A-39 delivery warrant dated 14.8.1940. The review applicants, being the plaintiffs in the suit as afore stated, have claimed that eversince from the date of taking of delivery from the tenant of the legal heirs of the Vanderveen, the auction purchaser, viz., Dhandapani Chettiar and thereafter, the plaintiffs have been in possession and enjoyment of the suit properties. The review applicants also claimed that during the year 1988, the respondents, who are the appellants in the Second Appeal, had trespassed into the suit properties pending lis and subsequently started construction.
11. According to the respondents herein, who are the appellants in the Second Appeal and defendants in the suits, there was no actual delivery of the suit property and it was only a paper delivery and they have also contended that they have prescribed title over the suit property by way of adverse possession and in support of their claim, they have also taken out an application in CMP No.513 of 2010 along with the Second Appeals, whereby they have sought the relief of reception of documents enlisted therein as additional documentary evidences. In fact, the entire judgment dated 18.2.2013 which is sought to be reviewed centered around the application in CMP No.513 of 2010.
12. It may be relevant to extract the first substantial question of law formulated in S.A.No.84 of 2000. It reads as under:-
(1). Whether the judgment of the lower Appellate Court is vitiated in admitting additional documents in evidence in I.A.No.105 of 1998 without giving an opportunity to the defendant to let in rebuttal evidence or receiving the same in evidence without following the procedure prescribed under Order 41, Rule 28 CPC ?
13. The substantial questions of law 2 and 4 in S.A. No.84 of 2000 are also assuming importance and they read as under:
(2) When the plaintiffs seek to establish title to suit property of the deceased Vanderveen by filing execution proceedings against his legal representatives is not the suit barred under Section 212 of the Indian Succession Act in as much as no Letters of Administration was granted ?
(4) Whether the suit is barred by limitation, as the defendants have acquired title by adverse possession ?
14. The substantial question of law No.3 in S.A.No.777 of 2000 may also be extracted as under:-
(3) Whether the learned Subordinate Judge erred in law in holding that the suit is not barred under Section 31 of the Limitation Act 1963 when the plaintiffs have not proved that they have subsisting title by proving possession for 12 years prior to 1.1.1964 ?
15. Now it may be relevant to extract the ground raised by the review applicants to review the order of remand:
During the hearing of the Second Appeal, the Hon'ble Judge had negatived the argument of the learned counsel for the appellant or the issue of the need for Letters of Administration for executing a decree against late Vanderveen. The Hon'ble Judge had specifically stated that the remand would be confined to the issue of whether the appellant had prescribed title by adverse possession and would be entitled to adduce rebuttal evidence in this regard on the documents additionally marked in the Appellate Court.
16. As argued by Mr.Srinath Sridevan, learned counsel appearing for the review applicants, all other issues are kept open in the judgment.
17. It is significant to note here that the appellants in S.A.No.777 of 2000, being the defendants in the suit in O.S.No.108 of 1996, had filed an application in CMP No.513 of 2010 under Order 41, Rule 27 of the Code of Civil Procedure to permit them to produce the additional documents enlisted in the petition to support their claim of adverse possession which is said to have been prescribed by them over the suit property. As it is seen from the judgment dated 18.12.2013 which is sought to be reviewed here, the said application was allowed along with the appeal, and the documents were received as additional documentary evidences. In this connection, the learned Judge in paragraph 10 of his judgment has extracted paragraph No.49 of the decision of the Supreme Court in Union of India vs. Ibrahim Uddin and another {2012 (8) SCC 148} which reads as under:-
49. An application under Order 41, Rule 27 CPC is to be considered at the time of hearing of appeal on merits so as to find out whether the documents and/or the evidence sought to be adduced have any relevance/bearing on the issues involved. The admissibility of additional evidence does not depend upon the relevancy to the issue on hand, or on the fact, whether the applicant had an opportunity for adducing such evidence at an earlier stage or not, but it depends upon whether or not the Appellate Court requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substantial cause. The true test, therefore is, whether the Appellate Court is able to pronounce the judgment on the materials before it without taking into consideration the additional evidence sought to be adduced. Such occasion would arise only if on examining the evidence as it stands the Court comes to the conclusion that some inherent lacuna or defect becomes apparent to the Court.
18. The learned Judge has also observed in paragraph 12 of his judgment, after citing catena of cases, that those decisions would reveal that additional evidence if to be taken, then the appeal itself has to be taken and heard and for reasons to be recorded only, additional evidence could be entertained. However, it does not mean that whenever the additional evidence is entertained, the Court should refrain from giving opportunity to the respondent in the appeal to adduce rebuttal evidence. It all depends upon the facts and circumstance involved in a case.
19. Therefore, the learned Judge has thought it fit that the application in CMP No.513 of 2010 which was filed under Order 41, Rule 27, should be heard along with the appeal. It may also be very much relevant to refer paragraph 15 of the judgment and it reads as under:-
15. If the additional documents to be entertained are formal in nature, then the question of rebuttal evidence might not arise and the Court would be justified in simply giving markings and decide the main appeal itself. But in cases where if the consequences of entertaining additional documents, would necessarily entail in adducing rebuttal evidence on the part of the opponent then the First Appellate Court has to stop at that stage and give opportunity to the respondent to adduce rebuttal evidence also.
20. Paragraph 17 also assuming more importance wherein the learned Judge has observed that in the written statement filed by the defendants, they have specifically pleaded that there was only paper delivery by Court Amin and actual delivery was not effected and that as per the defendants, they continue to be in possession and enjoyment of the suit property, de hors Ex.A-39, delivery warrant dated 14.8.1940.
21. In paragraph 18, the learned Judge has observed that when such is the factual plea raised by the defendants, necessarily on entertaining additional evidence by the First Appellate Court, it ought to have given due opportunity to the respondents to adduce rebuttal evidence both documentary as well as oral.
22. It is pertinent to note here that during the pendency of the appeal in A.S.No.18 of 1998 before the First Appellate Court, the appellants therein, who are the plaintiffs in the suit, had taken out an application in I.A.No.105 of 1998 under Order 41, Rule 27 of CPC, to receive the additional documents which were sought to be received therein (that application was also allowed along with the appeal).
23. In paragraph 19 also, the learned Judge has observed as under:
19. When this Court raised a query to the learned counsel for the defendants as to what prevented the defendants from adducing such evidence even in the Trial Court in support of the written statement, the learned counsel for the defendants would, to some extent, convincingly reply that since the burden of proof is ambulatory and the plaintiffs did not prove their case with evidence, the defendants thought fit not to adduce evidence on that line.
24. Similarly, paragraphs 27 and 28 are also more relevant for the better disposal of these review applications and they read as under:-
27. With this in mind, I would like to set aside the common judgment and decrees of the First Appellate Court with the specific direction that oral evidence shall be allowed to be adduced by the plaintiffs and formally get those additional documents marked; whereupon the defendants shall be allowed to get marked their additional documents subject to proof, admissibility and relevancy and accordingly, it is ordered.
28. In order to disambiguate, the ambiguity, if any, the additional documents filed in I.A.No.105 of 1998 (in that appeal in A.S.No.18 of 1998) shall be on record and they shall be formally marked through their witness or witnesses of the plaintiff and similarly the additional documents filed by the defendants in CMP No.513 of 2010 along with S.A.No.777 of 2000 shall also be entertained by the First Appellate Court, subject to proving their admissibility and relevancy relating to the issue of prescription. Thereafter, after hearing both sides, a reasoned judgment shall be delivered on the entire appeals within two months from the date of receipt of a copy of this order.
25. In this connection, Mr.Srinath Sridevan, learned counsel appearing for the review applicants/plaintiffs in the suit, has adverted to that while allowing the application in CMP No.513 of 2010, which was filed by the respondents/appellants, to receive the additional documentary evidence, an opportunity should have been given to the other side i.e., to the review applicants. While advancing his argument, Mr.Srinath Sridevan has also invited the attention of this Court to clauses (i) to (vii) of paragraph-6 of the judgment. The clauses (i) to (vii) of paragraph-6 of the judgment is relating to the argument advanced by the learned counsel appearing for the appellant in the Second Appeal, wherein the learned counsel for the appellant had contended that the First Appellate Court having chosen to entertain the additional evidence (I.A.No.105 of 1998 in A.S.No.18 of 1998) failed to give opportunity to adduce rebuttal evidence and that caused serious prejudice to the case of the defendants. It was also contended that the Trial Court had dismissed the suit only on the non-production of the said additional documents which were filed in the First Appellate Court. While-so, the First Appellate Court, after entertaining such additional evidence, was not justified in simply and unilaterally reversing the common judgment and decrees of the Trial Court. It was also contended that had opportunity been given to the defendants to adduce rebuttal evidence, certainly the defendants would have adduced evidence to establish and pointed out that the alleged delivery effected by Amin was nothing but a paper delivery, which had been taken allegedly from the tenant and that it was not justified also.
26. Specifically in clause (vii), the learned Judge has observed that as per Order 41, Rules 27 and 28 of CPC, the First Appellate Court should have given due opportunity to rebut the said additional evidence and necessarily the matter has to be remitted back to the First Appellate Court for giving due opportunity of adducing rebuttal evidence so as to highlight the continuous possession of the defendants over the suit property, de hors the alleged delivery.
27. Mr.Srinath Sridevan has also drawn the attention of this Court to clauses (i) to (vi) of paragraph No.7 of the judgment of the learned Judge. Clauses (i) to (vi) are relating to the argument advanced by the learned counsel appearing for the respondents in the appeal, who are the review applicants herein. It appears that it was contended on behalf of the review applicants that the defendants having accepted the Court proceedings during execution and the factum of the Court delivery, cannot try to ignore it by contending that it was only a paper delivery or that the delivery could not have been taken from the tenant in violation of Order 21, Rule 96 of CPC etc. It was also argued on behalf of the review applicants that Order 21, Rule 96 of CPC is only an enabling provision and there is no embargo that the tenant in possession, who is not a party to the lis, should not hand over possession to the Court auction purchaser of the property.
28. It was also specifically argued on behalf of the review applicants/respondents in the Second Appeal, that no one could be heard to challenge the Court and public documents. If for any reason, this Court might feel that opportunity of adducing rebuttal evidence has to be given to the defendants, then Order 41, Rule 25 of CPC could be invoked or in the alternative, the First Appellate Court could be directed as per Order 41, Rules 27 and 28 of CPC to record the rebuttal evidence and submit the same to this Court and this Court could decide once and for all the Second Appeals finally.
29. The total grievance expressed by Mr.Srinath Sridevan, learned counsel appearing for the review applicants is that the review applicants were not given an opportunity to argue on Succession Act, because on the only ground these review applications have been filed to review the order of remand. In the first portion of the grounds of review applications as has been stated in the opening paragraphs, the review applicants have stated that the Hon'ble Judge, during the hearing of the Second Appeal, had negatived the argument of the learned counsel for the appellant or the issue of the need for Letters of Administration for executing a decree against late Vanderveen. Mr.Srinath Sridevan has also added that failing to argue is one thing and not given an opportunity is the other one and therefore, he has urged this Court to review the order dated 18.2.2013 and made in S.A.Nos.84 and 777 of 2000.
30. On the other hand, Mr.B.Ramamoorthy, learned counsel appearing for the respondents/appellants in the Second Appeal, has submitted that on cursory perusal of paragraphs 9 to 24 of the judgment, nothing is available on the issue of Succession Act. He has also maintained that the review applications are not at all maintainable when the remedy of appeal is available to the review applicants/plaintiffs, and that if the party is aggrieved by the judgment of the learned single Judge sitting in Second Appeal, the appropriate remedy for the party is to file an appeal against the judgment of the learned single Judge. The remedy by way of an application for review is entirely misconceived and therefore, the learned counsel has urged this Court to dismiss the review applications.
31. In support of his contention, Mr.B.Ramamoorthy has placed reliance upon the decision of the Apex Court in Devaraju Pillai vs. Sellayya Pillai {AIR 1987 SC 1160}. In this decision, the Division Bench of the Apex Court has held that the learned single Judge, who entertained the application, 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. The Division Bench has also supported the view of Mr.B.Ramamoorthy, learned counsel appearing for the respondents herein. Mr.B.Ramamoorthy, while advancing his argument, has also made reference to the provisions of Rules 23 and 23-A of Order 41 of the Code of Civil Procedure and they read as under:-
23. Remand of case by Appellate Court.--Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, with directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand. 23-A. Remand in other cases.--Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a re-trial is considered necessary, the Appellate Court shall have the same powers as it has under Rule 23.
32. Mr.B.Ramamoorthy, learned counsel for the respondents herein, has also indicated that these review applications have not been filed inconsonance with the provisions of Order 47, Rule 1 of the Code of Civil Procedure. The learned counsel has also added in this connection that on perusal of the judgment which is sought to be reviewed, no error apparent is found on the face of the record and further the learned Judge had never taken misconception of either fact or law and therefore in the absence of any adequate ground to the satisfaction of this Court, these review applications ought not to have been entertained. He has therefore urged for the dismissal of these review applications in limini. In this connection, he has placed reliance upon the decision in Moran Mar Basselios Chatholicos and another vs. Most Rev. Mar Poulose Athanasius and others {AIR 1954 SC 526(1)}.
33. In this decision, based on the decision reported in Chhajju Ram vs. Neki {AIR 1922 PC 112}, Bisheshwar Pratap Sahi vs. Parath Nath {AIR 1934 PC 213} and Heri Shankar vs. Anath Nath {AIR 1949 PC 106}, a Three Judges Bench of the Hon'ble Supreme Court of India with reference to Order 47, Rule 1 of the Code of Civil Procedure, particularly with reference to the phraseology, any other sufficient reason, has observed that the words any other sufficient reason must mean a reason sufficient on grounds, at least analogous to those specified in the rule and with regard to misconception of Court, it has been observed that the proper procedure is to move the Court in whose judgment the remedy alleged to have been crept in. An application by way of review is to be made to the Court whose judgment is sought to be founded on a misconception as to the concession made by the Advocate appearing before it.
34. A misconception by the Court of a concession made by the Advocates or of the attitude taken by the party appears to be a ground analogous to the grounds set forth in the first part of the review section and affords a good and cogent ground for review. There is no reason to construe the word record in a very restricted sense and include within that term only the document which initiates the proceedings, the pleadings and the adjudication and exclude the evidence and other parts of the record. Further when the error complained of is that the Court assumed that a concession had been made or that the Court misconceived the terms of the concession or the scope and extent of it, it will not generally appear on the record but will have to be brought before the Court by way of an affidavit and this can only be done by way of review. The misconception of the Court must be regarded as sufficient reason analogous to an error on the face of the record.
35. Since Mr.B.Ramamoorthy, learned counsel appearing for the respondents has made strenuous attempt to question the maintainability of the review applications, it is imperative on the part of this Court to make reference to the provisions of Order 47, Rule 1, Sub Rules (1) and (2) and they read as under:-
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 of Small Causes, 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 of 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.
36. Sub Rule (1) to Rule 1 of Order 47 explains as to - the competency of a person who can prefer a review application and also the circumstance under which the review application can be made after passing of an order or judgment if he is really aggrieved from the (a) discovery of new and important matter or (b) evidence which after the exercise of due diligence, was not within his knowledge or (c)could not be produced by him at the time when the decree was passed or made or (d) on account of some mistake or (e) error apparent on the face of the record or (f) for any other sufficient reason. If these ingredients are absent, then the review application so filed by him cannot be construed as maintainable.
37. In so far as the power of the Court to review is concerned, no doubt it is a creation of Statute. It must be conferred by law either specifically or by necessary implication. Review is not an appeal in disguise. It cannot be denied that justice is a virtue which transcends all barriers and the rules or procedures or technicalities of law cannot stand in the way of administration of justice. Law has to bend before justice. If the Court finds that the error pointed out in the review petition was under mistake and the earlier judgment would not have been passed but for erroneous assumption which in fact did not exist and its perpetration had resulted in miscarriage of justice, nothing would preclude the Court from rectifying the error. The mere fact that different views on the same subject are possible, is no ground to review the earlier judgment passed by a Bench of the same strength.
38. The Apex Court in P.N.Thakershi vs. Pradumansinghji {AIR 1970 SC 1273}, has held that the power to review is not an inherent power. It must be conferred by law either specifically or by necessary implication.
39. Mr.B.Ramamoorthy, learned counsel appearing for the respondents, while advancing his argument, has brought to the notice of this Court that when the judgment, which is sought to be reviewed, was passed in the open Court, Mr.Srinath Sridevan, learned counsel appearing for the review applicants, was also present and even after passing of that judgment, Hon'ble Mr. Justice G.Rajasuria was on sitting in the Principal Seat of Madras High Court for about six months and only thereafter he was retired. Having kept quite for all those days i.e., for about six months, now the review applicants had chosen to prefer these review applications before this Court and that too it has been posted as a specially ordered matter before this Bench after the retirement of G.Rajasuria, J.
40. The learned counsel has further submitted that if these review applications were filed earlier during the tenure of Hon'ble Mr. Justice G.Rajasuria, then it would have been very comfortable for him to review his own judgment. Instead of adopting this known procedure, now these review applications have been wantonly delayed and filed belatedly after the retirement of the learned Judge.
41. In this connection, Mr.Srinath Sridevan, learned counsel appearing for the review applicants, has replied that no procedural irregularity is taken place in filing the review applications after the retirement of Hon'ble Mr. Justice G.Rajasuria. It is for the review applicants to decide either to file or not to file the review applications, but it is not upto the discretion of the counsel, who is appearing on their behalf. However, he would submit that these review applications have been posted before this Court as per the roster followed by this Court and therefore, there may not be any impediment or obstacle for this Court to dispose of these review applications.
42. In support of his contention, he has taken the assistance of the decision in Malthesh Gudda Pooja vs. State of Karnataka and Others {2011 (6) AWC (Supp.) 6152 (SC)}. In this case, the writ petitioners filed an appeal (W.A.No.169 of 2007) at the Dharwad Circuit Bench at Karnataka, challenging the part of the order reserving liberty to respondents 1 and 2 to pass fresh orders. By judgment dated 31.1.2009, a Division Bench of the Karnataka High Court (V.Gopala Gowda and L.Narayana Swamy, JJ) had dismissed the writ appeal. The appellant had filed a review petition (R.P.No.1513 of 2009) for review of the said order at the Dharwad Circuit Bench. The said review petition was placed before a Division Bench consisting of K.Sreedhar Rao and Ravi Malimath, JJ., at the Dharwad Circuit Bench. The third respondent had objected to the hearing of the review petition by the said Bench on the ground that the writ appeal was heard and disposed of by the Division Bench consisting of V.Gopala Gowda and L.Narayana Swamy, JJ., and the review petition should therefore be heard and decided by the same Bench. It was also his contention that the Notification dated 29.12.2008 of the Karnataka High Court, notifying that the review petitions relating to judgments passed by a Division Bench or Single Bench in respect of Circuit Bench, Dharwad will be posted as per the roster existing in the Circuit Bench, Dharwad, was contrary to Rule 5 of the Karnataka High Court Rules, 1959. Thereafter, a Division Bench consisting of K.Sreedhar Rao and Ravi Malimath, JJ., heard the said review petition and allowed it by judgment dated 17.12.2009 and directed that the appeal should be heard afresh for disposal in accordance with law. With reference to the objection of the third respondent therein that the learned Judges, who disposed of the appeal alone should hear the review petition, it is held as under:-
3. Rule 5 is not a rigid mandate. The exception to the rule is provided in the rule itself. In the case of death or non-availability of the judge, the review petition is permitted to be heard by the Bench other than the one, which passed the order. The experience has shown that for correcting trivial mistakes in the judgment, the review jurisdiction is invoked by the parties. In the scheme of sitting arrangement for the Circuit Benches, it is difficult to obtain the same combination to hear the review within a reasonable time. Therefore, in order to obviate the hardship to the litigants, the above notification is issued. Even on merits when a judgment or an order is to be reviewed, the similar difficulty of non-availability of the Bench, which passed the order within a reasonable time, is very much felt.
4. The exercise of power of allotment of subjects and cases is the prerogative of the Honble Chief Justice.
5. Keeping in view the practical considerations the above notification is issued. Therefore the notification cannot be termed as arbitrary and illegal.
43. In this connection, while speaking on behalf of a Division Bench of the Apex Court, Hon'ble Mr. Justice R.V.Raveendran, has observed in paragraph 13, as under:
13. Order 47 Rule 5 of the Code and Rule 5 of the Chapter 3 of the High Court Rules require, and in fact mandates that if the Judges who made the order in regard to which review is sought continue to be the Judges of the court, they should hear the application for review and not any other Judges unless precluded by death, retirement or absence from the Court for a period of six months from the date of the application. An application for review is not an appeal or a revision to a superior court but a request to the same court to recall or reconsider its decision on the limited grounds prescribed for review. The reason for requiring the same Judges to hear the application for review is simple. Judges who decided the matter would have heard it at length, applied their mind and would know best, the facts and legal position in the context of which the decision was rendered. They will be able to appreciate the point in issue, when the grounds for review are raised. If the matter should go before another Bench, the Judges constituting that bench will be looking at the matter for the first time and will have to familiarize themselves about the entire case to know whether the grounds for review exist. Further when it goes before some other Bench, there is always a chance that the members of the new bench may be influenced by their own perspectives, which need not necessarily be that of the Bench which decided the case. Benjamin Cardozos celebrated statement in the Nature of Judicial Process (page 12) is relevant in this context:
There is in each of us a stream of tendency, whether you choose to call it philosophy or not, which gives coherence to thought and action. Judges cannot escape that current any more than other mortals. All their lives, forces which they do not recognize and cannot name, have been tugging at them inherited instincts, traditional beliefs, acquired convictions; ......In this mental background every problem finds its setting. We may try to see things as objectively as we please. Nonetheless, we can never see them with any eye except our own. Necessarily therefore, when a Bench other than the Bench which rendered the judgment, is required to consider an application for review, there is every likelihood of some tendency on the part of a different bench to look at the matter slightly differently from the manner in which the authors of the judgment looked at it. Therefore the rule of consistency and finality of decisions, make it necessary that subject to circumstances which may make it impossible or impractical for the original bench to hear it, the review applications should be considered by the Judge or Judges who heard and decided the matter or if one of them is not available, at least by a bench consisting of the other Judge. It is only where both Judges are not available (due to the reasons mentioned above) the applications for review will have to be placed before some other bench as there is no alternative. But when the Judges or at least one of them, who rendered the judgment, continues to be members or member of the court and available to perform normal duties, all efforts should be made to place it before them. The said requirement should not be routinely dispensed with.
44. With regard to the above context, this Court would like to highlight the order passed by the Hon'ble Chief Justice of Madras High Court, as he then was, dated 1.11.2010. In the Office Note, an order was solicited from the Hon'ble Chief Justice in respect of the following subject relating to M.P.No.1 of 2009 in Rev.Appl.SR No.57116 of 2009 in A.S. No.555 of 2003. The order of the Hon'ble the Chief Justice of Madras High Court, as he then was, was solicited on the following two subjects:-
(i) The Hon'ble Judge before whom the above M.P.No.1 of 2009 in Rev.Appl.SR.No.57116 of 2009 in A.S.No.555 of 2003 may be posted for hearing;
and
(ii) The posting of miscellaneous petitions such as petitions praying for restoration, to set aside order, to modify order, to clarify order etc., and review applications in writ petitions and civil matters wherein main cases were already disposed by the Hon'ble Judges who were elevated, transferred and retired, until further orders.
45. With regard to the above said Office Note, the Hon'ble the Chief Justice has stated that As per Rosters. This order was passed on 1.11.2010. Therefore, this Court finds that the Registry has followed the correct procedure and listed the review applications before this Court and hence this Court does not find any illegality and nothing preclude this Court to review the impugned judgment.
46. Mr.B.Ramamoorthy, learned counsel appearing for the respondents, while advancing his argument, has elicited one more point saying that the judgment was dictated in the open Court and at the time of dictating the judgment in the open Court, no objection was raised by the learned counsel for the review applicants and that it is not open for him to raise objection to the said judgment under the guise of the review applications.
47. Mr.B.Ramamoorthy would further submit that as argued by Mr.Srinath Sridevan, learned counsel appearing for the review applicants, no discussion was made in the order which is sought to be reviewed about Section 212 of the Indian Succession Act and that in view of the observation made in paragraph 29 of the order, the review applicants can argue this point with reference to Section 212 of the Indian Succession Act, 1872, before the lower Appellate Court.
48. Mr.B.Ramamoorthy has also quoted the decision in M.Kamala Kannan and Others vs. M.Manikandan {2014 (3) CTC 28}, wherein the learned single Judge of this Court has held that it is settled position of law that a review petition cannot be construed to be an appeal in disguise. Even in case of an erroneous decision also, review is not permissible to rehear the appeal. The judgment can be reviewed only if there is an error apparent on the face of the record as contemplated under Order 47, Rule 1 of the Code of Civil Procedure. The review petitioner cannot re-argue the matter on merits and in such case, the remedy available to the review petitioner is to file an appeal and not review, when the findings in the appeal are adverse to them. The review power may be exercised when some mistake or error apparent on the face of the record is found and the review power cannot be exercised on the ground that decision was erroneous on merits. The review proceedings are not by way of appeal and have to be strictly confined to the scope and ambit of Order 47, Rule 1 of the Code of Civil Procedure. An error on the face of the record must be such an error which must strike one on more looking at the record and would require any long drawn process of reasoning on the points where there may be conceivably be two opinions. A rehearing of the matter is impermissible in law. It constitutes an exception to the general rule that once a judgment is signed or pronounced, it should not be altered. It is also trite that exercise of inherent jurisdiction is not invoked for reviewing any order.
49. Countering the argument of Mr.B.Ramamoorthy, Mr.Srinath Sridevan, learned counsel appearing for the review applicants, has adverted to that an opportunity must have been given to the review applicants, being the plaintiffs, to adduce at least to file their objection to receive the documents enumerated under the application in CMP No.513 of 2010 instead that application was taken unilaterally by this Court, admitting the documents enlisted therein and remitted back the first appeals to the file of the First Appellate Court for re-hearing the appeals, after giving an opportunity to both sides to adduce their additional evidences in the oral or documentary.
50. According to Mr.Srinath Sridevan, the disposal of the application in CMP No.513 of 2010 which seems to have been filed under Order 41, Rule 27 of the Code of Civil Procedure, is totally in negation of the principles of natural justice and has also urged this Court that the impugned judgment might be reviewed and the Second Appeals might be posted for re-hearing. In this connection, he has also placed reliance upon two decisions in support of his contention. The first one in Purushottam Reddy and Another vs. Pratap Steels Ltd {AIR 2002 SC 771}. In this case, a question with regard to illegality and propriety of the order of remand made by the High Court was examined in detail by a Division Bench of the Apex Court. In paragraph No.9 of the above said decision, it has been observed as under:-
9. .. .. .. .. .. ..
.. .. .. .. .. ..
In cases where additional evidence is required to be taken in the event of any one of the clause of sub-rule (1) of Rule 27 being attracted such additional evidence oral or documentary, is allowed to be produced either before the Appellate Court itself or by directing any Court subordinate to the Appellate Court to receive such evidence and send it to the Appellate Court. In 1976, Rule 23-A has been inserted in Order 41 which provides for a remand by an Appellate Court hearing an appeal against a decree if (i) the Trial Court disposed of the case otherwise than on a preliminary point, and (ii) the decree is reversed in appeal and a retrial is considered necessary. On twin conditions being satisfied, the Appellate Court can exercise the same power of remand under Rule 23-A as it is under Rule 23. After the amendment all the cases of wholesale remand are covered by Rules 23 and 23-A. In view of the express provisions of these rules, the High Court cannot have recourse to its inherent powers to make a remand because as held in Mahendra vs. Sushila, AIR 1965 SC 365, it is well settled that inherent powers can be availed of ex debito justitiae only in the absence of express provisions in the Code. It is only in exceptional cases where the Court may now exercise the power of remand de hors the Rules 23 and 23-A.
51. In an another decision in M/s.Sekaran Real Estates, a partnership firm, by Managing Partner K.Chandrasekaran vs. Punjab National Bank, Mylapore Branch, Mylapore, Madras-600 004 by its Manager {2000 (1) CTC 613}, Hon'ble Mr.Justice P.Sathasivam, as he then was, as the Judge of this Court, in paragraph 3, has made reference to the decision in Balasubramania vs. Subbiah, MANU/TN/0276/1965 : AIR 1965 Mad 417 and the said paragraph 3 reads as under:-
(3) In the case of Balasubramamia v. Subbiah, Ramamurti, J. , has held as follows-
"9. The powers of an appellate Court to pass an order of remand and to send the case back for trial is well settled. Under Order 41, Rule 23, C.P.C. the appellate Court has got power to remand a suit for fresh disposal-(a) if the suit has been disposed of on a preliminary point, or (b) if the appellate Court considers that it is necessary in the interests of justice that the matter should be disposed of afresh by the trial Court. It has been repeatedly pointed out by this Court that this power of remand ought not to be lightly exercised by the appellate Court, where it has failed to discharge its own duty of disposing of the appeal on merits. Frequent instances are coming to the notice of this Court in which orders of remand are passed under Order 41, Rule 23, C.P.C. indiscriminately even though the requirements of law were not satisfied at all. If the trial Court has not disposed of the suit on a preliminary point but has delivered judgment on merits it is the duty of the appellate Court to deal with the appeal on its merits. It is only in exceptional cases where the judgment of the trial Court is wholly unintelligible or incomprehensible that the appellate Court can remand the suit for a fresh trial. The fact that there are some defeats and infirmities in the reasoning of the trial court is surely not a ground for the appellate Court not to do its duty of disposing of the appeal on merits. The appellate Court will be acting clearly without jurisdiction if it simply and mechanically remands a suit to the trial court without applying its mind as to whether the judgment and the findings of the trial Court are correct and if not whether it should be reversed or set aside. In other words, the appellate court should come to the clear conclusion that the findings of the trial Court cannot be supported and must be set aside. Ends of justice require that a party litigant who had incurred expenses and undergone all the ordeal and trouble of a protracted trial in the trial Court should not be deprived of the benefit of the adjudication and be obliged to fight the case, over again for some defect or mistake in the form of expenses of the trial court. The tendency on the part of the appellate Court to remand a suit on slender grounds cannot but be strongly deprecated."
52. Coming to the instant case on hand, in the judgment which is sought to be reviewed, G.Rajasuria, J., - has, in his language, exemplified the reasons for the remand of the first appeals before the lower Appellate Court. In Clause (vi) of paragraph-8 of his judgment, the learned Judge has observed as under:-
Whereas, it is precisely the case of the defendants that there was no actual delivery of the suit property and it was only a paper delivery. The defendants are armed with adequate evidence which they have also produced before this Court by filing CMP No.513 of 2010 and the same are as follows:-
.. .. ... ... .. .. ..
.. .. ... ... .. .. ..
53. In Clause (vii) of paragraph-8 of his judgment, the learned Judge has observed that if the above documents are allowed to be produced and oral evidence also is allowed to be adduced, then that would adequately enlighten the issue and buttress and fortify the case of the defendants that actually delivery was not taken through Court by the auction purchaser and the defendants have been in possession and enjoyment of the suit property continuously.
54. In paragraph-26 of his judgment, the learned Judge has also stated, as such, in view of the fact that the case requires rebuttal evidence as put forth by the defendants, such non giving of opportunity to the defendants, in the considered opinion of the learned Judge, proves fatal to the ultimate decision rendered by the First Appellate Court, without in any way dealing with other issues decided by the First Appellate Court and therefore the learned Judge has thought it fit to remand the matter back to the First Appellate Court.
55. From the above context, it is explicit that the learned single Judge of this Court has fully justified his stand in remanding the first appeals to the lower Appellate Court so as to enable the parties to adduce rebuttal evidence as well as oral evidences if they desire to do so. Under this circumstance, this Court does not find any mistake or error apparent on the face of the record to review the judgment. Further, as decided by the Hon'ble Apex Court as well as by the various High Courts, this Court cannot sit on appeal under the guise of reviewing the judgment.
56. In view of the above facts, it is the considered view of this Court that the review applications are fully deserved to be dismissed and accordingly, the review applications are dismissed. There shall be no order as to costs.
26-08-2014 Index : Yes.
Internet: Yes.
Svn T.MATHIVANAN, J.
Svn Rev.A.Nos.73 and 74/2014 26-08-2014