Karnataka High Court
Smt. Chinnamma And Ors. vs R. Venkataswamy And Ors. on 18 June, 2003
Equivalent citations: 2003(6)KARLJ105, AIR 2003 KARNATAKA 444, 2003 AIR - KANT. H. C. R. 2186, (2004) 1 CIVILCOURTC 376, (2003) 6 KANT LJ 105, (2003) 3 KCCR 2222
Author: V.G. Sabhahit
Bench: V.G. Sabhahit
ORDER V.G. Sabhahit, J.
1. This petition under Order 47, Rule 1 of the CPC, is filed for review of the judgment and decree passed by this Court in R.F.A. No. 11 of 1998, dated 17-4-1998 and for reconsideration of the appeal, R.F.A. No. 11 of 1998.
2. The essential facts of the case leading upto this petition are as follows:--
Parties would be referred to with reference to their rank before the Trial Court.
3. Petitioners herein filed O.S. No. 9 of 1990 on the file of the Civil Judge (Senior Division), KGF, for partition and separate possession, declaration, mesne profits and other reliefs against defendants. After trial, the Trial Court dismissed the suit by answering issues against plaintiffs by its judgment and decree, dated 19-12-1997. Being aggrieved by the said judgment and decree dismissing the suit, plaintiffs filed R.F.A. No. 11 of 1998 on the file of this Court and this Court by its order dated 17-4-1998 dismissed the appeal.
4. It is the case of plaintiffs that one Kaki Muniyappa had a son by name Chikka Appoji, who in turn had a son by name Kaki Ramaiah; Kaki Ramaiah married one Menasamma and had two sons and 4 daughters through her and two sons are defendants 1 and 2; the daughters Mu-nivenkatamma, Iragamma, Narayanamma and Nagarathnamma are married and are living in their husband's house; after the death of Menasamma, Kaki Ramaiah married the 1st plaintiff-Chinnamma and he had 3 sons and a daughter through the said wedlock with the 1st plaintiff and plaintiffs 2 to 4 are the said sons and daughter of plaintiffs; plaintiffs, defendants 1 and 2 and Kaki Ramaiah are members of an undivided Hindu joint family; during his lifetime, Kaki Ramaiah was managing the affairs of the said joint family and he died on 6-6-1985 leaving behind the suit schedule properties, which are the joint family properties and wherefore, plaintiffs are entitled to partition and separate possession of the share to which they are entitled in the suit schedule properties.
5. The suit was resisted by defendants 1 and 2 by contending that there was an oral partition between Kaki Ramaiah and his 2 sons in the year 1971 and thereafter, the partition deed was registered on 1-5-1978 and wherefore, suit schedule properties have ceased to be the joint family properties after the said oral partition pursuant to which parties have been in separate possession of shares allotted to them. Defendant 3 filed a separate written statement contending that defendants 1 and 2 got their properties from their father and brothers by way of partition and plaintiff have no right over the property as ever since the date of oral partition, all are residing separately.
6. The Trial Court by its judgment dated 19-12-1997 held that plaintiffs had failed to prove that the suit schedule properties are the joint family properties and defendants had proved that there was an oral partition in the year 1971 and since then, Kaki Ramaiah, and his sons were in possession of separate shares allotted to them in status of the joint family and the partition deed has been registered as per Ex. D. 1 on 1-5-1978 and plaintiffs are bound by the said partition deed and in view of the said oral partition by defendants, plaintiffs are not entitled to any relief. The Trial Court has also held that since plaintiffs 2 to 4 have not filed the suit within 3 years after attaining majority as they were aged 29, 31 and 27 years respectively when the suit came to be filed, the suit was not maintainable. Being aggrieved by the said judgment, appellants preferred the appeal, R.F.A. No. 11 of 1998 before this Court.
7. This Court by its judgment dated 17-4-1998, after hearing the learned Counsel, who was appearing for appellants, held that: the suit filed by plaintiffs for partition has been dismissed by the Trial Court on the ground that defendants have established a prior partition in the family which is under a registered document and the Trial Court has also held that certain other properties which are not covered are the self-acquired properties of defendants having acquired by them under a registered document and that there is no ground to admit the appeal and accordingly, dismissed the appeal.
8. This petition has been filed under Order 47, Rule 1 of the CPC, for review of the judgment dated 17-4-1998 passed in R.F.A. No. 11 of 1998 and to rehear the appeal and to reconsider the appeal.
9. I have heard the learned Counsel appearing for petitioners and the learned Counsels appearing for respondents.
10. Learned Counsel appearing for petitioners submitted that the order passed by this Court in R.F.A. No. 11 of 1998 on 17-4-1998 dismissing the appeal required review as there is an error apparent on the face of the order. Learned Counsel submitted that plaintiffs 2 to 4, who were minors were not parties nor represented by any person in the partition effected between the father and his two sons and wherefore, in view of the decision of this Court in the case of Umakant Rao v. Lalitabai and Ors., (DB) it was not necessary to ask for reopening of the partition. He submitted that since plaintiffs were not parties to Ex. D. 1, the registered partition deed, the same would not be binding upon plaintiffs and the Trial Court was not justified in throwing out the suit on the ground that there was no relief for reopening of partition. Learned Counsel submitted that the said ground would fall within the ambit of the error apparent on the face of the record as the material on record would justify the said contention. He has relied upon the decision of the Hon'ble Supreme Court in Moran Mar Basselios Catholicos and Anr. v. Most Reverend Mar Poulose Athanasius and Ors., AIR 1954 SC 526 : 1954 SCJ 736 wherein, the Hon'ble Supreme Court has observed as follows.--
"(g) Civil P.C. (1908), Order 47, Rule 1 -- Misconception of Court -- Record.
The proper procedure is to move the Court in whose judgment the error is alleged to have crept in. The application by way of review is to be made to the Court whose judgment is said to be founded on a misconception as to the concession made by the Advocate appearing before it. A misconception by the Court of a concession made by the Advocate or of the attitude taken up 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 when none had in fact 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. It is permissible to rely on the affidavit as an additional ground for review of the judgment. Case-law discussed".
Learned Counsel appearing for petitioners has also relied upon the decision of the Supreme Court in the case of Common Cause, A Registered Society v. Union of India and Ors., wherein the Hon'ble Supreme Court has observed as under.--
"170. We may also point out that the powers of this Court under Article 32 and that of the High Court under Article 226 are plenary powers and are not fettered by any legal constraints. If the Court, in exercise of these powers has itself committed a mistake, it has the plenary power to correct its own mistake as pointed out by this Court in S. Nagaraj v. State of Karnataka, 1993 Supp.(4) SCC 595 : 1994 SCC (L and S) 320 : (1994)26 ATC 448 in which it was observed as under:
"18. Justice is a virtue which transcends all barriers. Neither the rules of procedure nor technicalities of law can stand in its way. The order of the Court should not be prejudicial to anyone. Rule of stare decisis is adhered for consistency but it is not as inflexible in Administrative Law as in Public Law. Even the law bends before justice. Entire concept of writ jurisdiction exercised by the higher Courts is founded on equity and fairness. If the Court finds that the order was passed under a mistake and it would not have exercised the jurisdiction but for the erroneous assumption which in fact did not exist and its perpetration shall result in miscarriage of justice then it cannot on any principle be precluded from rectifying the error. Mistake is accepted as valid reason to recall an order".
The Court also observed:
"19. Review literally and even judicially means re-examination or reconsideration. Basic philosophy inherent in it is the universal acceptance of human fallibility. Yet in the realm of law the Courts and even the statutes lean strongly in favour of finality of decision legally and properly made. Exceptions both statutorily and judicially have been carved out to correct accidental mistakes or miscarriage of justice. Even when there was no statutory provision and no rules were framed by the highest Court indicating the circumstances in which it could rectify its order the Courts culled out such power to avoid abuse of process or miscarriage of justice".
The Court further observed:
"Rectification of an order thus stems from the fundamental principle that justice is above all. It is exercised to remove the error and not for disturbing finality" ".
He has also relied upon the decision of the Hon'ble Supreme Court in the case of K.L. Nandakumaran Nair v. K.I. Philip and Ors., wherein, the Hon'ble Supreme Court has observed as follows.--
"3. At any rate, the Tribunal should have allowed the review when it was pointed out that mark-sheets and tabulation sheets were available and a statement to that effect had already been made in the counter-affidavit. Genesis of the problem appears to be the order made by the Tribunal while disposing of O.A. No. 1308 of 1993. In the affidavit of S.K. Shangari which we have adverted to earlier, it was stated that notes prepared at the time of practical test were destroyed soon after the entries in the minutes of the tabulation sheets were made, but the Tribunal, however, felt that the entire records have been destroyed, while it is not so. What was destroyed was only the notes and not the entries made in the minutes and tabulation sheet, which would indicate the necessary marks obtained by each of the candidates. When these facts were brought to the notice of the Tribunal and which facts have been averred in the counter-affidavit, there was no fresh attempt on their part to produce any new evidence which was not referred earlier and it is a case where the Tribunal totally ignored the pleadings and shut its eyes to the material available. In the circumstances, review should have been allowed".
11. Learned Counsel appearing for respondents submitted that the appeal has been dismissed by this Court by order dated 17-4-1998 after hearing the learned Counsel for appellants and the said order does not suffer from any error apparent on the face of the order and no ground is made out for review of the said order. He submitted that the scope of review under Order 47, Rule 1 of the CPC, is limited and this review has been filed in the guise of an appeal and the ground which could be alleged in the appeal cannot be a ground for reviewing the order as only an error apparent on the face of the order can be reviewed. He has relied upon the decision of the Hon'ble Supreme Court in the case of Parsion Devi and Ors. v. Sumitri Devi and Ors., wherein, it is observed as follows.--
"7. It is well-settled that review proceedings have to be strictly confined to the ambit and scope of Order 47, Rule 1 of the CPC. In Thungabhadra Industries Limited v. The Government of Andhra Pradesh, (1985)5 SCR 174 this Court opined:
"What, however, we are not concerned with is whether the statement in the order of September 1959, that the case did not involve any substantial question of law is an "error apparent on the face of the record". The fact that on the earlier occasion the Court held on an identical state of facts that a substantial question of law arose would not per se be conclusive, for the earlier order itself might be erroneous. Similarly, even if the statement was wrong, it would not follow that it was an "error apparent on the face of the record", for there is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterised as vitiated by "error apparent". A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error".
8. Again, in Smt. Meera Bhanja v. Smt. Nirmala Kumari Choudhury, while quoting with approval a passage from Aribam Tuleshwar Sharma v. Aribam Pishak Sharma and Ors., this Court once again held that review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47, Rule 1 of the CPC.
9. Under Order 47, Rule 1 of the 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 47, Rule 1 of the CPC. In exercise of the jurisdiction under Order 47, Rule 1 of the 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" ".
He has also relied upon the decision of the Supreme Court in the case of Lily Thomas v. Union of India and Ors., wherein, it is observed in para 57 as follows.--
"It is not the case of the petitioners that they have discovered any new and important matter which after the exercise of due diligence was not within their knowledge or could not be brought to the notice of the Court at the time of passing of the judgment. All pleas raised before us were in fact addressed for and on behalf of the petitioners before the Bench which, after considering those pleas, passed the judgment in Smt. Sarla Mudgal v. Union of India, . We have also not found any mistake or error appare(sic) the face of the record requiring a review. Error contemplateu under the rule must be such which is apparent on the face of the record and not an error which is to be fished out and searched. It must be an error of inadvertence".
Learned Counsel has also relied upon the decision of the Hon'ble Supreme Court in the case of Smt. Meera Bhanja, supra, wherein, the Hon'ble Supreme Court has observed as follows.--
"It is well-settled that the review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47, Rule 1 of the CPC. In connection with the limitation of the powers of the Court under Order 47, Rule 1, while dealing with similar jurisdiction available to the High Court while seeking to review the orders under Article 226 of the Constitution of India, this Court, in the case of Aribam Tuleshwar Sharma, supra, speaking through Chinnappa Reddy, J., has made the following pertinent observations (para 3).--
"It is true, there is nothing in Article 226 of the Constitution to preclude the High Court from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, 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" ".
Now it is also to be kept in view that in the impugned judgment, the Division Bench of the High Court has clearly observed that they were entertaining the review petition only on the ground of error apparent on the face of the record and not on any other ground. So far as that aspect is concerned, it has to be kept in view that an error apparent on the face of record must be such an error apparent on the face of record must be such an error which must strike one on mere looking at the record and would not require any long drawn process of reasoning on points where they may conceivably be two opinions. We may usefully refer to the observations of this Court in the case of Satyanarayan Laxminarayan Hegde and Ors. v. Mallikarjun Bhavanappa Tirumala, wherein, K.C. Das Gupta, J., speaking for the Court has made the following observations in connection with an error apparent on the face of the record:
"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".
Further, learned Counsel has relied upon the decision of the Supreme Court in the case of Devaraju Pillai v. Sellayya Pillai, wherein, the Supreme Court has held that mere fact that a different view could be taken on the construction of document can never be a ground for review.
12. I have considered contentions of parties and perused decisions relied upon by the learned Counsels appearing for parties. The application for review has to be considered in the light of principles laid down by the Hon'ble Supreme Court in the decisions relied upon by the learned Counsels appearing for parties referred to above.
13. In the present case, R.F.A. No. 11 of 1998 was dismissed on 17-4-1998, after hearing the learned Counsel appearing for appellants in the appeal. It is not the case of petitioners in the present case that they have discovered any new or important evidence which after exercise of due diligence was not within their knowledge or could not be produced at the time of passing of the order as the judgment and decree passed by the Trial Court and other material were available when the appeal was argued before this Court on 17-4-1998. The contention of learned Counsel appearing for petitioners is that there is an error apparent on the face of the record. It is his submission that plaintiffs were not parties to registered partition deed and wherefore, there was no necessity of asking for reopening of partition under the said registered partition deed and the finding of the Trial Court that plaintiffs were required to ask for reopening of the said partition is erroneous and the same has not been considered by this Court. Learned Counsel who appeared for appellants in R.F.A. No. 11 of 1998 is not the Counsel who has filed this review petition. Further, it is not the case of petitioners that though the said contentions were urged, the same were not considered by this Court while passing the order dated 17-4-1998 as there is no ground urged in the petition in that behalf nor the affidavit of the Advocate who had represented appellants in R.F.A. No. 11 of 1998 is filed in that behalf. This Court after hearing the Counsel appearing for appellants has passed an order dismissing the appeal. It is well-settled in view of decisions relied upon by the learned Counsels appearing for respondents that the scope of review under Order 47, Rule 1 is limited and mere fact that another view could be taken, having regard to the material on record, would not be a ground for review. Similarly, the contention of the learned Counsel appearing for petitioners that the order passed by this Court dismissing the appeal holding that the judgment and decree passed by the Trial Court is justified in view of the registered document, is erroneous, cannot also be a ground for review as the said ground would be a ground within the province of appeal and not review. Only an error apparent on the face of the order can be corrected in review and the reasoning of the Court cannot be substituted and even according to the present petition, the prayer is to reconsider the appeal. It is well-settled that within the limited scope of review, the appeal cannot be reargued on merits and another order cannot be substituted in place of the order passed after hearing the learned Counsel appearing for petitioners-appellants in the appeal and accordingly, I hold that there is no error apparent on the face of the order nor any cause is made out for review of the order passed by this Court in R.F.A. No. 11 of 1998, dated 17-4-1998 and pass the following order.--
The petition is dismissed with costs.