Kerala High Court
C.L Jacob (Transposed) vs Vijayamma K.G on 27 November, 2024
2024:KER:89523
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
WEDNESDAY, THE 27TH DAY OF NOVEMBER 2024 / 6TH
AGRAHAYANA, 1946
RP NO. 1155 OF 2024
AGAINST THE JUDGMENT DATED 23.09.2024 IN RSA NO.429 OF
2023 OF HIGH COURT OF KERALA
REVIEW PETITIONER(S)/TRANSPOSED APPELLANT AND 2ND
APPELLANT:
1 C.L JACOB (TRANSPOSED),
AGED 57 YEARS
S/O LATE LUKOSE, MARYVILASAM (CHIRAYIL) HOUSE,
ETTUMANOOR P.O, KIZHAKKUMBHAGOM KARA,
ETTUMANOOR VILLAGE, KOTTAYAM-683631,
REPRESENTED BY HIS POWER OF ATTORNEY HOLDER,
VINI JACOB, AGED 49 YEARS, W/O C.L JACOB,
MARYVILASAM (CHIRAYIL) HOUSE, ETTUMANOOR P.O,
KIZHAKKUMBHAGOM KARA,
ETTUMANOOR VILLAGE, KOTTAYAM,
PIN - 683631
2 VINI JACOB,
AGED 49 YEARS
W/O C.L JACOB, MARYVILASAM (CHIRAYIL) HOUSE,
ETTUMANOOR P.O, KIZHAKKUMBHAGOM KARA,
ETTUMANOOR VILLAGE. KOTTAYAM
PIN - 683631
BY ADV N.K.SUBRAMANIAN
2024:KER:89523
RP NO. 1155 OF 2024
2
RESPONDENT(S)/RESPONDENTS 1 TO 4 & 5TH RESPONDENT
(TRANSPOSED 1ST APPELLANT:
1 VIJAYAMMA K.G,
AGED 70 YEARS, W/O LATE KRISHNANKUTTY NAIR,
KRISHNA SADANAM HOUSE, ETTUMANOOR P.O,
KIZHAKKABALAM, ETTUMANOOR VILLAGE,
KOTTAYAM -, PIN - 683631
2 LEELAMMA,
AGED 66 YEARS, W/O LATE C.C JOSEPH, ULLAPALLIL
HOUSE, ETTUMANOOR P.O, ETTUMANOOR VILLAGE,
KOTTAYAM, PIN - 683631
3 LINCY
AGED 39, W/O ROBERT, ERTHUMALAYIL, PANTHATHALA
VILLAGE, MUTHOLI GRAMA PANCHAYATH, MEENACHIL
TALUK, KOTTAYAM,
PIN - 686573
4 JELMI,
AGED ABOUT 37 YEARS, W/O SABU, THANNIYIL,
VETTIMUKAL, ETTUMANOOR, VILLAGE,
KOTTAYAM, PIN - 686631
5 C.L JACOB
AGED 57, S/O LATE LUKOSE, MARYVILASAM
(CHIRAYIL) HOUSE, ETTUMANOOR P.O,
KIZHAKKUMBHAGOM KARA, ETTUMANOOR VILLAGE,
KOTTAYAM, PIN - 683631
THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON
27.11.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
2024:KER:89523
RP NO. 1155 OF 2024
3
JUDGMENT
1. This Review Petition is filed by the appellants 1 and 2.
2. The 1st appellant was transposed as 5th respondent in the appeal after the filing of the appeal. The appeal was argued by the 2nd appellant as the party in person. Two points were argued before this Court.
3. The Point No.1 was that on account of existence of the properties belonging to the defendants in between the Plaint Schedule Item No.4 way and the Plaint schedule item No.1 and 2, the Plaint Schedule item No.1 and 2 do not have any access to the Plaint Schedule item No.4 way which is situated on the northern side of plaint schedule item No. 1 and 2. This Court considered the said point and relying on the Commission Report found that the Plaint schedule item No.1 and 2 is having 2024:KER:89523 RP NO. 1155 OF 2024 4 access to Plaint schedule item No.4 way.
4. The second point argued was that Ext.A6 property purchased by the 1st plaintiff is situated on the southern side of his property and not on the northern side. That was also considered and rejected by this Court by referring to the boundaries referred in Ext.A6 documents. The second point was not raised either before the Trial Court or before the First Appellate Court by the defendants. Even then this Court considered the matter.
5. Both the aforesaid points were touching the factual aspects of the matter. With respect to the first point, the Trial court as well as the First Appellate Court entered a finding. The party who appeared in person could not point out any substantial question of law.
2024:KER:89523 RP NO. 1155 OF 2024 5
6. Now this Review Petition is filed by the 2nd appellant and by the 5th respondent who was transposed from the position of appellant No.1 together through a counsel. It is well settled by the decisions starting from the decision of the Hon'ble Supreme Court in Tamil Nadu Electricity Board and Another v. N. Raju Reddiar and Another [ AIR 1997 SC 1005] that filing of Review Petition through another counsel should be deprecated with heavy hand for purity of administration of law and salutary and healthy practice. Even though the Second Appeal was filed not through an advocate, the principle laid down in the said decision is applicable in this case, as the Review Petition is filed by a new person who did not argue the appeal and who had no knowledge about what transpired when the appeal was argued.
2024:KER:89523 RP NO. 1155 OF 2024 6
7. Several grounds are seen raised in support of the Review Petition. These grounds were not argued when the appeal was considered for admission. The Second Review Petitioner opted to appear in person before this Court and then she advanced arguments before this Court and this Court elaborately heard her and after considering all the points raised by her, a judgment was rendered dismissing the Regular Second Appeal. Now the Review Petition is filed raising some new contentions which were not raised by the Second Review Petitioner while she argued the matter as a party in person. There is nothing on record to show that the findings entered into by this Court in the impugned judgment is incorrect. No argument was advanced that the findings in the impugned judgment is wrong.
2024:KER:89523 RP NO. 1155 OF 2024 7
8. Though the learned counsel for the Review Petitioner attempted to argue on the strength of Annexure A1 Photograph to show that the property which is seen in the said photograph which is a part of plaint schedule item No.4 belonging to the defendant, it is seen from the said photograph that the said portion also has been lying as a pathway in which the gate of the plaintiff No.2 is also seen. Mere presence of a coconut tree and granite construction therein could not be relied on to hold that the said property is the private property belonging to the defendants and it is not a part of plaint schedule item No.4 pathway. The portion which is seen in Annexure A1 photograph is also lying in continuation of plaint schedule item No.4 pathway . The defendants could not prove before the Trial Court that the said 2024:KER:89523 RP NO. 1155 OF 2024 8 portion was absolutely belonging to them. When the western portion of the Plaint schedule item No.4 pathway is lying without any demarcation from the other side, it could not be said that a part of the pathway belongs to the defendants. At any rate, this Court is not expected to interfere with the factual findings entered into by the Trial Court and the First appellate Court.
9. In the recent decision of the Hon'ble Supreme Court in Sanjay Kumar Agarwal v. State Tax Officer [(1) SCC Online SC 1406], the Hon'ble Supreme Court has categorically held that a party is not entitled to seek a review of a judgment merely for the purpose of a rehearing and a fresh decision of the case and that the normal principle is that a judgment pronounced by the Court is final, and departure from that principle is 2024:KER:89523 RP NO. 1155 OF 2024 9 justified only when circumstances of a substantial and compelling character make it necessary to do so. It also held that an error which is not self-evident and which has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of record justifying the Court to exercise its power of review. It is further held that in exercise of the jurisdiction under O.47 R.1 CPC, it is not permissible for an erroneous decision to be "reheard and corrected"; that review petition has a limited purpose and cannot be allowed to be an appeal in disguise and that under the guise of review, petitioner cannot be permitted to re- agitate and re-argue the questions which have already been addressed and decided. In the light of these principles laid down by the Hon'ble Supreme Court, the 2024:KER:89523 RP NO. 1155 OF 2024 10 present Review Petition is liable to be dismissed.
10. Hence, I do not find any ground or reason to entertain this Review Petition. Accordingly the same is dismissed.
Sd/-
M.A.ABDUL HAKHIM JUDGE sms 2024:KER:89523 RP NO. 1155 OF 2024 11 APPENDIX OF RP 1155/2024 PETITIONER ANNEXURES Annexure -A1 A PHOTOGRAPH PRODUCED BY ADVOCATE COMMISSIONER ALONG WITH THE REPORT SHOWS THE KALKETTU' ALL ALONG THE SOUTHERN SIDE OF PLAINT SCHEDULE ITEM NO.4,