Madras High Court
Unknown vs G.Vasantha
Author: V.Bharathidasan
Bench: V.Bharathidasan
Rev.Appl.No.6 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 23.03.2021
DELIVERED ON : 20.04.2021
CORAM:
THE HONOURABLE MR.JUSTICE V.BHARATHIDASAN
Review Application No.6 of 2021
and C.M.P.Nos.3354 & 3361 of 2021
in
S.A.No.197 of 2019
1. M/s.Gudiyattam Lungi Company,
Rep. by its Managing Partner,
No.21, Narimurugappa Street,
Pichanoor, Gudiyattam, Vellore District.
2. M/s.P.G.Ekambaram Mudaliar,
P.G.Murugesan Mudaliar and Co.,
Rep. by its Managing Partner
3. P.G.Sivagnanam
4. P.N.Venugopal
5. P.N.Annamalai
P.N.Sundaramurthy (Deceased)
6. P.S.Kribakaran
7. P.S.Anandan
8. P.S.Selvaraj
https://www.mhc.tn.gov.in/judis/
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Rev.Appl.No.6 of 2021
9. G.Sulochana
10. P.G.Saravanan
11. P.G.Balaji
12. S.Prema
13. S.Laguvaran
14. Vanitha Rajasekar .. Petitioners
Vs.
1. G.Vasantha
2. G.Meenakshi
3. G.Usha Rani .. Respondents
Prayer: Review Application filed under Order XLVII, Rule 1 r/w Section
114 of Code of Civil Procedure, praying to review the Judgment and Decree
of this Court dated 19.07.2019 made in S.A.No.197 of 2019.
For Petitioners : Mrs.Chitra Sampath
SC for Mr.T.S.Baskaran
For Respondents : Mr.S.Thiruvengadasamy
-----
https://www.mhc.tn.gov.in/judis/
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Rev.Appl.No.6 of 2021
ORDER
This review application has been filed seeking to review the judgment and decree passed by this Court in S.A.No.197 of 2019, dated 19.07.2019.
2. The review petitioners are the appellants in the second appeal. This Court by judgment and decree dated 19.07.2019, has partly allowed the second appeal, setting aside the judgment and decree passed by the first appellant Court in respect of the dissolution of the first defendant's firm, and dismissed the second appeal in respect of other reliefs sought by the petitioners/appellants and thereby confirmed the judgment and decree of the Courts below to that extent. Now to review the said judgment, the present application has been filed.
3. The brief facts leading to filing of this review application is as follows:
(i) The respondents herein are the plaintiffs in the suit in O.S.No.48 of 2006, on the file of the learned Subordinate Judge, Gudiyatham. The suit has been filed for the following reliefs:
"(a) For declaration of title in respect of suit https://www.mhc.tn.gov.in/judis/ 3/48 Rev.Appl.No.6 of 2021 A-schedule property and for the consequential relief of recovery of possession of A schedule property;
(b) for division of B Schedule properties into 4 equal shares and allotment of one such share jointly to the plaintiffs; and
(c) for dissolution of partnership and accounting by appointing a receiver."
(ii) According to the plaintiffs, the father of the plaintiffs, one P.G.Ekambara Mudaliar, was the founder of the first and second defendants partnership firms and he was also a partner along with his four other brothers viz., (i) P.G.Subramania Mudaliar, (ii) P.G.Ekambara Mudaliar, (iii) P.G.Murugesa Mudaliar, (iv) P.G.Narayana Mudaliar and (v) P.G.Murugesa Mudaliar. Both firms were established in the year 1942.
(iii) In the year 1963, one of the partners namely, P.G.Narayanasamy Mudaliar died and the defendants 4, 5 and 6 being legal heirs of P.G.Narayanasamy Mudaliar had taken 1/3rd share of the partnership firm. One P.G.Sivagnanam Mudaliar, the eldest son of P.G.Narayanasamy Mudaliar, was adopted by one P.K.Gangadhara Mudaliar, brother of P.K.Govindappa Mudaliar, subsequently, the said P.G.Sivagnana Mudaliar was also inducted as one of the partners in both the firms. https://www.mhc.tn.gov.in/judis/ 4/48 Rev.Appl.No.6 of 2021
(iv) In the year 1967, the plaintiff's father P.G.Ekambara Mudaliar died intestate leaving behind his wife, P.E.Padmavathy, and the plaintiffs as his legal heirs to succeed his estate. After the death of Ekambara Mudaliar, the plaintiff's mother was inducted as the senior most partner in both the firms.
(v) Subsequent to the death of Ekambara Mudaliar, another partner namely, P.G.Nataraja Mudaliar retired from the firms, thereafter, yet another partner namely, Murugesa Mudaliar also got retired. Subsequently, in the year 1986, another partner namely, P.G.Subramania Mudaliar, also died, leaving behind the defendants 7 to 10 as his legal heirs.
(vi) After the death of Ekambara Mudaliar, the defendants were giving their share to their mother continuously, and after her death the other partners did not pay the share due to the plaintiffs.
(vii) According to the plaintiffs, the properties mentioned in Item Nos.1 and 2 of suit A-Schedule are separate properties of the plaintiffs' father Ekambara Mudaliar, and the other items in A Schedule properties https://www.mhc.tn.gov.in/judis/ 5/48 Rev.Appl.No.6 of 2021 were the joint properties of P.G.Ekambara Mudaliar and Murugesa Mudaliar. For the sake of convenience, those properties were also used for the activities of the partnership firms with the permission of P.G.Ekambara Mudaliar and Murugesa Mudaliar and they never parted with the ownership of the above properties. Insofar as Item 1 to 7 in B-Schedule properties, they are absolute properties of the 1st and 2nd defendant firms and they were purchased from and out of the income derived from the partnership firms and the plaintiffs are entitled to 1/4th share jointly in the above said properties.
(viii) It is the further case of the plaintiffs that, since the partnership is at will, after the death of Padmavathy Ammal, the plaintiffs have not opted to join the firms as partners. Hence the defendants are not entitled to continue in the firm. In such circumstances, the suit was filed seeking for the dissolution of the firms.
(ix) The defendants contested the suit stating that, A-Schedule properties are not the absolute properties of P.G.Ekambara Mudaliar, Item Nos.1 and 2 of the suit A Schedule property were purchased in the name of Ekambara Mudaliar, from out of the income derived from the 2nd defendant firm, and the same were also brought into the account of the 2nd defendant https://www.mhc.tn.gov.in/judis/ 6/48 Rev.Appl.No.6 of 2021 firm. The other item of A Schedule properties are also belonging to the 2nd defendant firm and all the properties and the assets were being maintained only by the partnership firms.
(x) It is further contended that, the properties mentioned in 'B' Schedule are the absolute properties of the second defendant firm, the 1st defendant firm have got nothing to do with the B Schedule property and the plaintiffs cannot claim 1/4th share in the suit A and B Schedule properties. It is further contended that under Section 46 of the Partnership Act, on the death of one or more of the partners, the firm would get dissolved automatically and after the death of P.E.Padmavathy, both the partnership firms were reconstituted and defendants 3 to 10 were inducted as partners and the firm continued to run the business, a new partnership deed was executed on 19.01.1990, in respect of 1st defendant firm and a supplementary agreement was executed on 05.01.1990 in respect of the 2nd defendant firm.
(xi) Thereafter the plaintiffs have failed to ask for settlement of their claim being the legal heirs of the deceased partner. However, a sum of Rs.5,25,000/- was paid to each of the plaintiffs and it was also https://www.mhc.tn.gov.in/judis/ 7/48 Rev.Appl.No.6 of 2021 acknowledged by them. Hence, the suit for account and dissolution of partnership firm does not arise.
(xii) Based on these pleadings, the trial Court framed the following issued for trial:
"(1) Whether a single suit for dissolution of two partnership firm is maintainable?
(2) Whether Padmavathy was admitted to the partnership firms for enjoying the partnership properties absolutely?
(3) Whether A and B plaint schedule properties are the absolute properties of deceased Ekambara Mudaliar?
(4) Whether the partnership firm got automatically dissolved due to death of one of the partners Padmavathy?
(5) Whether the partnership firms were reconstituted after the death of Padmavathy?
(6) Whether the plaintiffs were admitted as partners after the death of their mother?
(7) Whether the plaintiffs got settled the partnership accounts by receiving the amount due from the partners?
(8) Whether the plaintiffs are entitled to ask https://www.mhc.tn.gov.in/judis/ 8/48 Rev.Appl.No.6 of 2021 accounting of the partnership firm?
(9) Whether the plaintiffs have received the money from the partnership firm?
(10)Whether the suit is barred by limitation? (11) Whether the market value of the plait schedule properties as valued is correct?
(12) Whether the court has pecuniary jurisdiction to entertain the suit?
(13) Whether the plaintiffs are entitled to the reliefs as claimed?
(14) To what relief?
Additional Issues:-
(1) Whether the plaintiffs are entitled to declaration as recovery of possession with respect to 'A' Schedule property?
(2) Whether the plaintiffs are entitled to 1/4th share in the 'B' Schedule property?"
(xiii) The trial Court after a full fledged trial, considering the pleadings and evidence has held that, Item 1 and 2 of suit A Schedule properties are the self acquired properties of the plaintiffs' father P.G.Ekambara Mudaliar and decreed the suit in respect of these two items and dismissed the suit in respect of other items of properties in suit A- https://www.mhc.tn.gov.in/judis/ 9/48 Rev.Appl.No.6 of 2021 Schedule, and decreed the suit in respect of other reliefs as prayed for by the plaintiffs.
(xiv) Feeling aggrieved over the decree and judgment passed by the trial Court, the petitioners herein filed an appeal in A.S.No.34 of 2016, on the file of the learned Principal District Judge, Vellore. The first appellate Court by judgment and decree dated 19.06.2018, dismissed the appeal thereby confirmed the decree and judgment passed by the trial Court.
(xv) Challenging the judgment and decree passed by the first appellate Court, the petitioners filed second appeal in S.A.No.197 of 2019, before this Court. In the above second appeal, this Court has framed the following substantial questions of law for consideration:
"(1) Whether Item 1 and 2 of A-Schedule properties were the self acquired properties of P.G.Ekambara Mudaliar or belonged to the partnership firms?
(2) Whether Item 1 and 2 of A-Schedule property were deemed to be the assets of the partnership firms as per Section 14 of the Partnership Act?
https://www.mhc.tn.gov.in/judis/ 10/48 Rev.Appl.No.6 of 2021 (3) Whether the plaintiffs are entitled to ask for dissolution of partnership firms?
(4) Whether the suit claim is barred by limitation?
(5) Whether the plaintiffs are entitled to 1/4th share in the suit B-schedule property?"
4. Elaborate arguments were advanced by the learned counsel appearing for the appellants as well as the respondents. Considering the rival submissions, in respect of the substantial question of law 1 and 2, this Court held that, item Nos.1 and 2 of the A-Scheduled property are the absolute properties of P.G.Ekambara Mudaliar, and there is no material available on record to show that there is any express agreement between the partners to treat these properties as partnership properties.
5. So far as question of law No.3, relating to dissolution of partnership firms is concerned, considering the material available on record, this Court has held that there was an agreement between the parties and some amount has also been paid to the plaintiffs towards their share, in respect of first https://www.mhc.tn.gov.in/judis/ 11/48 Rev.Appl.No.6 of 2021 defendant firm, but in respect of second defendant firm, there is no evidence available for settlement of shares and the plaintiffs are entitled for dissolution in respect of second defendant firm alone. In respect of the first defendant firm, the finding of Courts below was set aside and the second appeal was partly allowed in favour of the appellants.
6. The next question relates to limitation, it was contended by the appellants by relying upon clause 11, of the partnership deed of the year 1964, stating that the plaintiffs only entitled to get their share within a period of twelve months after the death of the deceased partner, whereas the instant suit was filed after 17 years of the death of the plaintiffs' mother, therefore, as per Article 5 of the Limitation Act, the suit is not maintainable. That apart, this Court relying upon Clause 12, of the reconstituted partnership deed, which was marked as Ex.B12, it was held that on the death of any of the partners, the partnership will not get dissolved and the remaining partners are entitled to continue to run the partnership. Hence, on the death of the plaintiffs' mother the partnership firm does not get dissolved automatically. Article 5 of the Limitation Act is not applicable to the instant case and the plaintiffs are entitled to seek for dissolution of the second defendant firm. In respect of 5th substantial question of law, this Court, https://www.mhc.tn.gov.in/judis/ 12/48 Rev.Appl.No.6 of 2021 after considering the materials, has held that the plaintiffs are entitled to 1/4th share in the suit B-Schedule properties. Now, to review the above judgment and decree, the present review application has been filed.
7. Mrs.Chitra Sampath, learned senior counsel appearing for the review petitioner would contend that, so far as item Nos.1 and 2 of 'A' scheduled properties, the mother of the plaintiffs who was one of the partners in the firm, and categorically admitted that these two items are assets of the partnership firms in Ex.B7, a release deed executed by one of the partners Mr.P.G.Nataraja Mudaliar and in Ex.B8, another release deed executed by another partner Mr.Murugesa Mudaliar, in which the retiring partners have released their rights in respect of the said properties to the remaining partners including the mother of the plaintiffs, and the mother of the plaintiffs also accepted the release deed and thereby conceded that those two properties were treated as the properties of the partnership firms.
8. Learned senior counsel further contended that in Ex.B12, the reconstituted partnership deed dated 11.01.1974, the plaintiffs mother has admitted that these two properties were properties of the partnership firm. That apart ledger book entries of the firms for the year 1959-60, produced https://www.mhc.tn.gov.in/judis/ 13/48 Rev.Appl.No.6 of 2021 before the income tax authorities also clearly shows that these properties were treated as properties of the partnership firm. It is further stated that the above ledger book was not produced before the Courts below and now the petitioners wants to place these documents as additional evidence in the review petition and also filed a separate application to exhibit these documents as additional evidence.
9. The learned senior counsel would further contend that, in all those documents, the mother of the plaintiffs has categorically admitted that these properties are the properties of the partnership firm, which was not considered by this Court, which is an error apparent on the face of the record, hence the judgment has to be reviewed.
10. The learned senior counsel would further submitted that, Clause 12 of Ex.B12, clearly states that upon the death of any partner, the firm will not get automatically dissolved and the remaining partners shall continue the business. The legal representatives of the deceased partners shall be entitled for their share with interest at 12% p.a. In view of the specific clause in the partnership deed, Sections 37 and 42(c) of the Partnership Act will have no application in the case. Therefore, the plaintiffs cannot ask for dissolution of https://www.mhc.tn.gov.in/judis/ 14/48 Rev.Appl.No.6 of 2021 the second defendant partnership firm and partition of 'B' scheduled property. That apart, the plaintiffs were not inducted as the partners of the firm and therefore they have no locus standi to seek for dissolution of the partnership firm, which right only available to the partners and not to the legal representatives of the deceased partners. The plaintiffs are bound by Clause 12, of the partnership deed, and they are only entitled for settlement of accounts and to receive their share with interest.
11. The learned senior counsel further contended that, the suit is bared under Article 106 of the Limitation Act. As the plaintiffs mother died on 29.12.1989, the suit was filed only in the year 2006 i.e., after 17 years of her death and the suit is barred by limitation. This Court without considering the same held that the limitation starts only on the dissolution of the partnership firm, since the firm was not dissolved, the suit is not barred by limitation.
12. The learned senior counsel lastly submitted that despite due diligence, some of the documents could not be produced by the petitioners at the time the decree was passed, and that these documents are necessary to decide the issue. Hence the documents sought to be marked as additional evidence are necessarily be admitted in evidence. https://www.mhc.tn.gov.in/judis/ 15/48 Rev.Appl.No.6 of 2021
13. In support of her contentions the learned senior counsel relied upon the following judgements viz.,
(i) Kodendera K.Uthaiah Vs. P.M.Medappa reported in 2017 16 SCC 331
(ii) Ahamed Meera Sahib Vs Mohammed Mohideen Maracayar reported in 1976 89 LW 356
(iii) D.R.Somayajulu Vs. Attili Appala Swamy reported in 2015 2 SCC 390
14. Per contra, Mr.S.Thiruvenkaswamy, learned counsel appearing for the respondents would contend that, the review petition is not maintainable in the eye of law. Three Courts elaborately considered all these issued raised in the review petition, and now it is not open to the petitioners to re-argue all these issues in the review application. The petitioners cannot be allowed to re-agitate the concluded adjudication, based on appreciation of the evidence available on record. In the second appeal this Court has framed five substantial question of law for consideration, which covers all the issues raised in the review petition, after considering all the materials has given a clear findings and partly allowed the appeal, and there is no error apparent https://www.mhc.tn.gov.in/judis/ 16/48 Rev.Appl.No.6 of 2021 on the face of the record and all the contentions raised in the review petitions are frivolous, vexatious and unsustainable in law.
15. The learned counsel further submitted that, the review application has also not satisfied the requirements of Section 114 of CPC and Order 47 Rule 1 of CPC. The learned counsel also submitted that a review of judgement cannot be an appeal in disguise and this Court cannot re- appreciate the evidence in the review application.
16. The learned counsel further submitted that, so far as item Nos.1 and 2 of 'A' schedule property are concerned, this Courts after considering all the materials has held that it is the self acquired property of Mr.Ekambara Mudaliar, and he has never parted with the property in favour of the firm, and there is no error in the findings. This Court also after considering the factual as well as legal propositions has clearly held that the suit is not barred by limitation and there is no necessary to review the same.
17. The learned counsel further submitted that so far as the dissolution of firm and other issues are concerned the same were elaborately considered by all the three Courts and now it is not open to the petitioners to re-agitate the same in the review application.
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18. So far as filing of additional evidence, the learned counsel submitted that, already the first appellate Court rejected the production of the same evidence in I.A.No.44 of 2017 in A.S.No.34 of 2016, now the petitioners cannot file those materials as additional evidences in the review application and the Court cannot entertain the same while exercising the power under Section 114 of CPC. That apart the petitioners also not satisfied the requirements of Order 41 Rule 27 of CPC. In fine, the learned counsel submitted that the review application has been filed in total abuse of process of law and hence it is liable to be rejected with exemplary cost.
19. In support of his contentions the learned counsel relied upon the following judgements viz.,
(i) Shri Ram Sahu (D) others Vs. Vinod Kumar Rawad reported in 2020 SCC Online Sc 896
(ii) Meera Bhanja Vs. Nirmala Kumari Chaudhury reported in AIR 1995 SC 455
20. I have considered the rival submissions, and perused the records carefully.
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21. The power of review a judgement/order by a Civil Court is traceable under Section 114 of CPC, and Order 47 Rule 1 of CPC, prescribes limitations on the power of the Court while reviewing the judgment, those provisions are extracted hereunder:
"Section 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 47 - Review; Rule 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, https://www.mhc.tn.gov.in/judis/ 19/48 Rev.Appl.No.6 of 2021
(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 of 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 https://www.mhc.tn.gov.in/judis/ 20/48 Rev.Appl.No.6 of 2021 other case, shall not be a ground for the review of such judgment.] ."
22. Section 114 of CPC, empowers the Court to review the judgment but it does not prescribe any limitation on the power of the Court to review the judgment or order. However, Order 47 Rule 1 CPC prescribes such limitation. The primordial requirement for entertaining the review petition is that, the judgment sought to be reviewed suffers from any error apparent on the face of the judgment and permitting the judgment to stand will lead to failure of justice. The power of review may also be exercised on the discovery of new and important matter of evidence which despite exercise of due diligence was not within the knowledge of the petitioners seeking for review or could not be produced by them at the time the judgment was delivered.
23. However, the review power may not be exercised on the ground that, the decision was erroneous on merit. While reviewing the judgment the Court cannot substitute another view and review cannot be treated as an appeal in disguise. It is also settled that the review Court cannot sit in appeal over its own judgment and rehearing of the matter is impermissible in https://www.mhc.tn.gov.in/judis/ 21/48 Rev.Appl.No.6 of 2021 law. As the review is a creation of a Statute, it must be conferred by law either specifically or by necessary implication and Court does not have any inherent power to review its own judgment. The Hon'ble Supreme Court and this Court have consistently held that, the error in the judgment which is sought to be reviewed is more than a mere error and it must be one that manifest on the face of the record and it does not require detailed examination, scrutiny and elucidation either on the facts or the legal position. The judgment cannot be reviewed merely because it is erroneous in law or on the ground that another view could have been taken by the Court on the point of fact or law.
24. The Hon'ble Supreme Court in Meera Bhanja Vs. Nirmala Kumari Choudhury, reported in 1995 1 SCC 170, has held that review application have to strictly confine to the scope and ambit of Order 47 Rule 1 CPC and it cannot be treated as an appeal. The above judgment has been considered by the Hon'ble Supreme Court in another judgement reported in Haridas Das Vs. Usha Rani Banik, reported in (2006) 4 SCC 78. The relevant portions are extracted hereunder:
"15. A perusal of the Order XLVII, Rule 1 show that review of a judgment or an order could be https://www.mhc.tn.gov.in/judis/ 22/48 Rev.Appl.No.6 of 2021 sought : (a) from the discovery of new and important matters or evidence which after the exercise of due diligence was not within the knowledge of the applicant; (b) such important matter or evidence could not be produced by the applicant at the time when the decree was passed or order made; and (c) on account of some mistake or error apparent on the face of record or any other sufficient reason.
16. In Aribam Tuleshwar Sharma v. Aribam Pishak Sharma (AIR 1979 SC 1047) this Court held that there are definite limits to the exercise of power of review. In that case, an application under Order XLVII, Rule 1 read with Section 151 of the Code was filed which was allowed and the order passed by the judicial Commissioner was set aside and the writ petition was dismissed. On an appeal to this Court it was held as under:
"It is true as observed by this Court in Shivdeo Singh v. State of Punjab (AIR 1963 SC1908) there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to https://www.mhc.tn.gov.in/judis/ 23/48 Rev.Appl.No.6 of 2021 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 of evidence which, 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."
17. The judgment in Aribam's case (supra) has been followed in the case of Smt. Meera Bhanja (supra). In that case, it has been reiterated that an https://www.mhc.tn.gov.in/judis/ 24/48 Rev.Appl.No.6 of 2021 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 following observations in connection with an error apparent on the face of the record in the case of Satyanarayan Laxminarayan Hegde v. Mallikarjun Bhavanappa Tiruymale [AIR 1960 SC 137] were also noted:
"An error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Where an alleged error is far from self-evident and if it can be established, it has to be established, by lengthy and complicated arguments, such an error cannot be cured by a writ of certiorari according to the rule governing the powers of the superior Court to issue such a writ."
18. It is also pertinent to mention the observations of this Court in the case of Parsion Devi v. Sumiri Devi (1997(8) SCC 715). Relying upon the judgments in the cases of Aribam's (supra) https://www.mhc.tn.gov.in/judis/ 25/48 Rev.Appl.No.6 of 2021 and Smt. Meera Bhanja (supra) it was observed as under :
"9. Under Order XLVII, Rule 1, CPC a judgment may be open to review inter alia, if there is a mistake or an error apparent on the face of the record. An error which is not self evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the Court to exercise its power of review under Order XLVII, Rule 1, CPC. In exercise of the jurisdiction under Order XLVII, Rule 1, CPC it is not permissible for an erroneous decision to be reheard and corrected. A review petition, it must be remembered has a limited purpose and cannot be allowed to be an appeal in disguise."
25. In Inderchand Jain Vs. Motilal, reported in (2009) 14 SCC 663, the Hon'ble Supreme Court, considering the scope of Section 114 CPC, and Order 47 Rule 1 CPC, has held that, an application for review would lie only when the order/judgment suffers from an error apparent on the face of the https://www.mhc.tn.gov.in/judis/ 26/48 Rev.Appl.No.6 of 2021 record and rehearing of the matter is impermissible in law and review cannot be treated as an appeal in disguise. The relevant portion of the judgment reads as follows:
"7. Section 114 of the Code of Civil Procedure (for short "the Code") provides for a substantive power of review by a Civil Court and consequently by the appellate courts. The words "subject as aforesaid" occurring in Section 114 of the Code means subject to such conditions and limitations as may be prescribed as appearing in Section 113 thereof and for the said purpose, the procedural conditions contained in Order 47 of the Code must be taken into consideration. Section 114 of the Code although does not prescribe any limitation on the power of the court but such limitations have been provided for in Order 47 of the Code; Rule 1 whereof reads as under:........
8. 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 :
https://www.mhc.tn.gov.in/judis/ 27/48 Rev.Appl.No.6 of 2021 "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 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."
9. 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.
10. It is beyond any doubt or dispute that the review court does not sit in appeal over its own order. A re-hearing of the matter is impermissible https://www.mhc.tn.gov.in/judis/ 28/48 Rev.Appl.No.6 of 2021 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.
11. Review is not appeal in disguise. In Lily Thomas v. Union of India [AIR 2000 SC 1650], this Court held :
"56. It follows, therefore, that the power of review can be exercised for correction of a mistake and not to substitute a view. Such powers can be exercised within the limits of the statute dealing with the exercise of power. The review cannot be treated an appeal in disguise."
26. Recently, the Hon'ble Supreme Court in Shri Ram Sahu (Dead) Vs. Vinod Kumar Rawat, reported in 2020 SCC Online SC 896, considering all the above judgments has held as follows:
"9. To appreciate the scope of review, it would be proper for this Court to discuss the object and ambit of Section 114 CPC as the same is a https://www.mhc.tn.gov.in/judis/ 29/48 Rev.Appl.No.6 of 2021 substantive provision for review when a person considering himself aggrieved either by a decree or by an order of Court from which appeal is allowed but no appeal is preferred or where there is no provision for appeal against an order and decree, may apply for review of the decree or order as the case may be in the Court, which may order or pass the decree. From the bare reading of Section 114 CPC, it appears that the said substantive power of review under Section 114 CPC has not laid down any condition as the condition precedent in exercise of power of review nor the said Section imposed any prohibition on the Court for exercising its power to review its decision. However, an order can be reviewed by a Court only on the prescribed grounds mentioned in Order 47 Rule 1 CPC, which has been elaborately discussed hereinabove. An application for review is more restricted than that of an appeal and the Court of review has limited jurisdiction as to the definite limit mentioned in Order 47 Rule 1 CPC itself. The powers of review cannot be exercised as an inherent power nor can an appellate power can be exercised in the guise of power of review."
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27. In the light of the above settled legal principles, let me consider whether the review filed by the petitioners is maintainable.
28. The primordial contention of the learned senior counsel appearing for the petitioners is that, the first and second item of suit 'A' schedule property, all along treated as the partnership asset, which is very much evident from the two release deeds executed by the erstwhile partners of the partnership firm in Ex.B7 and Ex.B8, which was also accepted by the mother of the plaintiffs and also other partners while executing the partnership deed dated 11.01.1974, marked as Ex.B12, which was not considered by the Court, and only relayed upon Ex.B4 and Ex.B5, the entries made in account books, and held no other evidence available, which is an error apparent on the face of record.
29. To appreciate that contention, it would be necessary to look into the pleadings and other materials. The written statement filed by the petitioners/defendants, in paragraph 9, it is stated that these properties were purchased in the name of P.G.Ekambara Mudaliar, from and out of the funds of the partnership firms and thereafter the properties were maintained only from the partnership funds. The said two items were also brought into the https://www.mhc.tn.gov.in/judis/ 31/48 Rev.Appl.No.6 of 2021 account of first and second defendants firms and it had became the estate of the firm.
30. In order to substantiate the same, the petitioners/defendants relied upon Ex.B4 and Ex.B5, which are entries in the book of accounts maintained by the partnership firm to show that the properties were treated as the assets of the firm. The trial Court considering these documents has held that the first and second defendant firms were started in the year 1959, and the properties were purchased much prior to the constitution of the partnership firms and merely because some entries were made in Ex.B4 and Ex.B5, which is related to the year 1960-61, it cannot be held that the properties were treated as partnership assets. That finding was confirmed by the first appellate and this Court also after considering all the documents has held in paragraphs 24, 25 and 29 of the judgment as follows:
"24. Now, it is to be considered whether Item Nos.1 and 2 of the suit A-Schedule properties are the absolute properties of the plaintiffs' father or the assets of the partnership firm. Item Nos.1 and 2 of the suit A-Schedule property admittedly stood in the name of the father of the plaintiffs Ekambara https://www.mhc.tn.gov.in/judis/ 32/48 Rev.Appl.No.6 of 2021 Mudaliar. The 1st item was purchased in the year 1951, under Ex.A.1, while the 2nd item was purchased in the year 1954, under Ex.A.2. Admittedly, the partnership firms came into existence only in the year 1959. Whereas the properties in question have been purchased much prior to the constitution of the partnership firms. The defendants placing reliance heavily upon the entries in the Books of Accounts maintained by the partnership firms under Ex.B.4 and Ex.B.5 contended that, the above said properties were treated as assets of the partnership firm. But, from a perusal of Ex.B.4 and Ex.B.5, it is seen that they are related to the year 1960-61. The only witness examined to prove the entries made under Ex.B.4 and Ex.B.5 is D.W.1. But, D.W.1 in his evidence had categorically admitted that he joined the firm only in the year 1986 and he was not aware of the transaction held prior to that and he had also admitted that he was not aware as to who had made those entries in Ex.B.4 and Ex.B.5. Except, the oral testimony of D.W.1, no other evidence is available on record to prove those entries. In the above circumstances, it is crystal clear that, the properties in question were purchased much prior to the constitution of the partnership firms and in the https://www.mhc.tn.gov.in/judis/ 33/48 Rev.Appl.No.6 of 2021 absence of any evidence to prove that the properties were purchased from out of the income derived from the partnership firms it cannot be held that those properties are the assets of the 1st and 2nd defendant firms.
25. Item 1 and 2 of the suit A-Schedule property have been admittedly enjoyed by the 2nd defendant firm. Under such circumstances, now, the question is whether Item 1 and 2 of the suit A- Schedule properties have been impliedly treated as the properties of the partnership firm as per Section 14 of the Partnership Act. It is the settled law that in the absence of any agreement, the property exclusively belongs to a partner does not become the property of the partnership merely because it is used for the business of the partnership firm and it cannot be presumed to have become the assets of the partnership. Any property owned by a partner other than the partnership property would remain as his individual asset. Merely because one of the partners allowed the property to be used for the partnership purpose, it will not become the assets of the partnership.
***
29. Keeping the above principles in mind, if https://www.mhc.tn.gov.in/judis/ 34/48 Rev.Appl.No.6 of 2021 we consider the instant case, absolutely, there is no material evidence available to show that there is an implied or express contract among the partners for treating the properties in question as partnership properties. Merely because the plaintiffs have allowed the properties to be used for the partnership business, the properties would not become the properties of the partnership firm and the properties can be considered as the absolute properties of the plaintiffs' father. Thus, the questions of law 1 and 2 are answered accordingly against the appellants/defendants and in favour of the respondents/plaintiffs." (emphasis added)
31. Now relying upon two release deeds executed by the erstwhile partners of the firm releasing their right in favour of other continuing partners, wherein, the properties were stated to have been shown as assets of the partnership firm and contended that those documents were not considered by this Court. The documents relied upon by the petitioners came into existence after the death of Ekambara Mudaliar. Admittedly, these properties were purchased by Ekambara Mudaliar much prior to the constitution of the partnership firms and there is no evidence to show that while he entering into partnership, Ekambara Mudaliar surrendered his https://www.mhc.tn.gov.in/judis/ 35/48 Rev.Appl.No.6 of 2021 individual interest in the assets brought by him into the business. Considering those circumstances, this Court has held that there is no evidence available on record to show any implied or express contract amongst partners for treating the properties in question as partnership properties, which is an essential requirement under Section 14 of the Partnership Act.
32. In the above circumstances, it is not open to the review petitioners relying upon those documents and contend that those properties are treated as partnership asset. This Court after considering all these materials came to the conclusion that the said properties are the individual properties of Ekambara Mudaliar, and there is no error apparent on the face of the record, and the contentions of the learned counsel cannot be countenanced.
33. The next contention of the learned senior counsel for the petitioners regarding the decree for dissolution of partnership firm. It is the contention of the learned senior counsel that, since the plaintiffs were not partners of the firm and they cannot seek for dissolution of the partnership firms. In view of Clause12, of the new partnership deed (Ex.B12), they are only entitled for their share with interest. This argument was advanced in all https://www.mhc.tn.gov.in/judis/ 36/48 Rev.Appl.No.6 of 2021 the three Courts, which has been extensively considered by the trial Court in issue Nos.1, 8 and 9, and held that the plaintiffs are entitled for dissolution of the partnership firm and also entitled for 1/4 share in the first and second defendants partnership firm. The first appellate Court also confirmed the same and this Court has specifically framed a substantial question of law in Question No.3, and answered the same in favour of the plaintiffs. In paragraph No.30 of the judgment, this Court has held as follows:
"30. So far as the next issue relating to dissolution of partnership firms is concerned, admittedly, after the death of the plaintiffs' father P.G.Ekambara Mudaliar, the mother of the plaintiffs', one Mrs.Padmavathy was inducted as a partner of the firms and after her death in the year 1989, the partnership firms were reconstituted in the year 1990 with the defendants 3 to 10 as partners. The contention of the defendants is that after the death of the mother of the plaintiffs, there was a settlement between the plaintiffs and the defendants, wherein the plaintiffs agreed to receive a sum of Rs.5,25,000/- each and the same was paid by the defendants. In order to prove the same, the defendants have marked Ex.B.1 to B.3 - Sworn-in affidavits of the plaintiffs and also Ex.B.9 to Ex.B.11 receipts for https://www.mhc.tn.gov.in/judis/ 37/48 Rev.Appl.No.6 of 2021 payment of share. But, it was disputed by the plaintiffs. A perusal of Ex.B.1 to B.3 would go to show that all the plaintiffs have filed a separate affidavit of declaration stating that they had received a sum of Rs.1,00,000/- in full and final settlement in respect of Gudiyatham Lungi Company viz., the 1st defendant firm. They were duly signed by the plaintiffs and notarized. The notary was also examined as D.W.3 to prove the same. D.W.3, the Notary had categorically admitted that sworn-in affidavits were signed by the plaintiffs and they were duly notarized by him. I find no reason to disbelieve his evidence. But, the above affidavit of declaration was for the receipt of share only in respect the 1st defendant firm. Though it was contended by the defendants that the share amounts were settled in respect of both 1st and 2nd defendant firms, there is no evidence available to show that the defendants had settled the shares of plaintiffs in respect of 2nd defendant partnership firm. From the available evidence, it could be seen that the defendants had settled the share only in respect of the 1st defendant partnership firm. Therefore, the plaintiffs are entitled for dissolution of partnership firm in respect of 2nd defendant firm https://www.mhc.tn.gov.in/judis/ 38/48 Rev.Appl.No.6 of 2021 alone and not for 1st defendant firm. This substantial question of law is answered accordingly."
34. So far as the plaintiffs' entitlement regarding the 1/4th share in the suit 'B' Schedule property, a specific substantial question of law has been framed in the second appeal in Question No.5 and the same was answered in paragraph 36, of the judgment, which reads as follows:
"36. Insofar as partition of suit B-schedule property is concerned, according to the plaintiff, the same was the property of the 1st and 2nd defendant firm and the same were purchased from out of the income derived form the partnership business and the plaintiffs have got 1/4th share. But, the defendants contended that the suit B-schedule properties are the exclusive properties of the 2nd defendant firm which is a manufacturing unit, and duly accounted by the 2nd defendant firm and the 1st defendant firm has got nothing to do with the suit B-Schedule property. Even assuming that the properties are belong to the 2nd defendant manufacturing company, as already held the plaintiffs were settled with their share of profits only in respect of the 1st defendant marketing firm, the https://www.mhc.tn.gov.in/judis/ 39/48 Rev.Appl.No.6 of 2021 plaintiffs are entitled to 1/4th share in the suit B- Schedule properties. This substantial question of law is answered accordingly against the defendants and in favour of the plaintiffs to the extent indicated above."
35. The third and final submission of the learned senior counsel is regarding limitation. The learned senior counsel relied upon Clause 12 of Ex.B12, and contended that the suit is barred under Article 106 of the Limitation Act and Article 5 of the Limitation Act is applicable to this case. In this aspect, a specific issue was framed by the trial Court regarding limitation in Issue No.10 and in paragraph 23 of the judgment the trial Court rejected the contention and the same was confirmed by the first appellate Court. This Court specifically framed a substantial question of law in second appeal in Q.No.4, and considering all the relevant provisions and also relying upon Clause 12 of Ex.B12, has held that the suit is not barred by limitation. The relevant portion of the judgment reads as follows:
"34. Under Article 5 of the Limitation Act, the suit for accounts and share of profit of the dissolved partnership firm should be filed within a period of 3 years from the date of dissolution. But, in the instant case, after the death of the plaintiffs father, https://www.mhc.tn.gov.in/judis/ 40/48 Rev.Appl.No.6 of 2021 the partnership firm was reconstituted in the year 1974 inducting the mother of the plaintiffs as one of the partners. As per clause 12 of the new partnership deed (Ex.B.12), on death of any of the partner, the partnership will not get dissolved and the remaining partners are entitled to continue to run the partnership. The relevant clause of the reconstituted partnership deed reads as follows:-
"12. The death, retirement or insolvency of any partner shall not dissolve the firm and the remaining partners shall be entitled to continue the business. The legal representative of the deceased, retiring or insolvent partner as the case may be shall be entitled to be paid out of the amount due to him as on the date of death, retirement or insolvency as the case may be with interest at 12 per cent per annum"
35. In the above circumstances, on death of the mother of the plaintiffs, the partnership firm did not get dissolved automatically and it was also admitted by D.W.1 in his evidence that without even https://www.mhc.tn.gov.in/judis/ 41/48 Rev.Appl.No.6 of 2021 issuing any notice to the plaintiffs, they had reconstituted the firm on 19.01.1990. From the above, it could be seen that after the death of the mother of the plaintiffs the partnership firm was not dissolved and it was reconstituted with the defendants 3 to 10 as if partners without any notice to the plaintiffs and the partnership firm continued to be in existence. Under such circumstances, Article 5 of the Limitation Act is not applicable to the instant case and the plaintiffs are entitled to seek for dissolution of the 2nd defendant firm. This substantial question of law is answered accordingly in favour of the respondents/plaintiffs."
36. This Court has elaborately considered the issue in the appeal and rejected the contention, and the petitioners cannot be permitted to raise the same issue once again in the review application. The judgment relied upon by the learned senior counsel for the petitioner in Ahamed Meera Sahib Vs. Mohammed Mohideen Maracayar reported in 1976 (89) LW 356 is also not factually applicable to the present case.
37. As all the issues raised by the review petitioners have been considered elaborately and decided by this Court, now it is not open to the https://www.mhc.tn.gov.in/judis/ 42/48 Rev.Appl.No.6 of 2021 petitioners to re-agitate the same. It is a repetition of the issues already argued and negatived, which is impermissible in law. A concluded adjudication cannot be reopened and this review petition apparently an appeal in disguise. It is useful to refer the judgement of the Hon'ble Supreme Court in Kamlesh Verma Vs. Mayawathi reported in (2013) 8 SCC 320, in paras 18 and 19 it is held as follows:
"18. Review is not rehearing of an original matter. The power of review cannot be confused with appellate power which enables a superior court to correct all errors committed by a subordinate court. A repetition of old and overruled argument is not enough to reopen concluded adjudications. This Court in Jain Studios Ltd. v. Shin Satellite Public Co. Ltd. [(2006) 5 SCC 501] , held as under: (SCC pp. 504-505, paras 11-12) "11. So far as the grievance of the applicant on merits is concerned, the learned counsel for the opponent is right in submitting that virtually the applicant seeks the same relief which had been sought at the time of arguing the main matter and had been negatived. Once such a prayer had been refused, no review petition would https://www.mhc.tn.gov.in/judis/ 43/48 Rev.Appl.No.6 of 2021 lie which would convert rehearing of the original matter. It is settled law that the power of review cannot be confused with appellate power which enables a superior court to correct all errors committed by a subordinate court. It is not rehearing of an original matter. A repetition of old and overruled argument is not enough to reopen concluded adjudications.
The power of review can be exercised with extreme care, caution and circumspection and only in exceptional cases.
12. When a prayer to appoint an arbitrator by the applicant herein had been made at the time when the arbitration petition was heard and was rejected, the same relief cannot be sought by an indirect method by filing a review petition. Such petition, in my opinion, is in the nature of ‘second innings’ which is impermissible and unwarranted and cannot be granted".
19. Review proceedings are not by way of an appeal and have to be strictly confined to the scope https://www.mhc.tn.gov.in/judis/ 44/48 Rev.Appl.No.6 of 2021 and ambit of Order 47 Rule 1 CPC. In review jurisdiction, mere disagreement with the view of the judgment cannot be the ground for invoking the same. As long as the point is already dealt with and answered, the parties are not entitled to challenge the impugned judgment in the guise that an alternative view is possible under the review jurisdiction."
38. In view of the above, this Court finds no reason to review its judgment as there is absolutely no error apparent on the face of the record, and this Court finds no merit in the review petition. C.M.P.No.3361 of 2021
39. This miscellaneous petition has been filed to receive some documents namely, affidavits executed by the plaintiffs regarding receiving of their shares in the partnership firm and ledger books entries of the year 1960, which has been certified by the Income Tax Office as additional evidence in the review application.
40. The learned senior counsel for the petitioners contended that these documents further confirms the entries made in Ex.B3 and Ex.B4. Even though these documents were submitted during the arguments in the second https://www.mhc.tn.gov.in/judis/ 45/48 Rev.Appl.No.6 of 2021 appeal, since no application was filed to receive the same as additional documents, the same was not considered and hence the petitioners may be permitted to file those documents. The learned senior counsel further submitted that there is no bar in accepting the additional documents in the review application. In support of her contention she relied upon a decision of the Hon'ble Supreme Court in D.R.Somayajulu Vs. Attili Appala Swamy reported in 2015 2 SCC 390.
41. The learned counsel appearing for the respondents strongly opposed this miscellaneous petition. He submitted that these documents were very much available with the petitioners, even during the trial, they have deliberately kept it and not produced as evidence for the reason best known to them, and they should be permitted to mark it in the review application and it does not satisfy the requirements of Order 41 Rule 27 CPC. The affidavit filed in support of the same was also bereft of any reason for not producing the documents earlier. I find much force in the argument of the learned counsel appearing for the respondent and this Court is of the considered view that the additional documents cannot be marked as evidence at this stage, and this appears to be an attempt to protract the litigation and the application is liable to be rejected.
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42. Considering the above circumstances, this Court finds no merit in the review application and it is only liable to be dismissed and accordingly dismissed. Consequently, C.M.P.Nos.3354 and 3361 of 2021 are dismissed. No costs.
20.04.2021 Index : Yes / No Internet: Yes / No kk To
1. The Principal District Judge, Vellore.
2. The Subordinate Judge, Gudiyatham, Vellore District.
https://www.mhc.tn.gov.in/judis/ 47/48 Rev.Appl.No.6 of 2021 V.BHARATHIDASAN, J.
kk PRE DELIVERY ORDER IN Review Appln. No.6 of 2021 and C.M.P.Nos.3354 & 3361 of 2021 in S.A.No.197 of 2019 RESERVED ON : 23.03.2021 DELIVERED ON : 20.04.2021 https://www.mhc.tn.gov.in/judis/ 48/48