Madras High Court
S.Ramakrishnan vs Nallathai on 1 November, 2018
Author: S.Baskaran
Bench: S.Baskaran
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Judgment Reserved on : 08.11.2017
Judgment Pronounced on : 01.11.2018
CORAM:
THE HONOURABLE MR. JUSTICE S.BASKARAN
REV.APPLN.(md)No.125 of 2015
in
SECOND APPEAL NO.138 OF 2006
1.S.Ramakrishnan
2.S.Arumugam ... Review Petitioners/Respondents
Vs.
1.Nallathai
2.Chella Gomathy
3.Bambika
4.Usharani
5.C.Venkateshwari
6.C.Mahalakshmi
7.C.Vijayalaksh
8.C.Kannan ... Respondents/Appellants
This Review Petition has been filed Under Order 47 Rule 1 r/w
Section 114 CPC against the judgment and decree dated 04.04.2014
passed by this Court in S.A.(md)No.138 of 2006.
For Petitioner : Mr.H.Arumugam
For Respondent : Mr.Meenakshi Sundaram
Senior Counsel for
Mr.R.T.Arivukumar
http://www.judis.nic.in
2
ORDER
This Review Petition has been filed Under 47 Rule 1 r/w Section 114 CPC against the judgment and decree dated 04.04.2014 passed by this Court in S.A.(md)No.138 of 2006.
2.The plaintiffs filed a suit for declaration to declare the 'D' schedule property as common wall and also sought for a consequential injunction and mandatory injunction against the defendants and also restore the construction of the wall in Item No.II and for costs. After contest, the trial Court decreed the suit as prayed for. Aggrieved upon that the defendants preferred the appeal before the lower appellate Court. After contest, the lower appellate Court by allowing the appeal set aside the decree and judgment of the trial Court and dismissed the suit. Aggrieved upon that the plaintiffs preferred the appeal before this Court by way of second appeal. This Court, after hearing both sides, allowed the second appeal and set aside the decree and judgment of the lower appellate Court and restore the decree and judgment of the trial Court. Now, the defendants have preferred this review petition.
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3.I have heard the rival contentions and perused the materials available on record.
4.The learned counsel appearing for the review petitioners would submit that when P.W.1 himself admitted that there is a lane in existence in between the properties of the plaintiffs and defendants, the plaintiffs cannot claim right over the wall, since the wall is the western boundary of the lane belonging to one Madathiammal and the existence of the lane also proved through Ex.B1, Ex.B2, Ex.B7, Ex.B8 and Ex.B9, but, the plaintiffs suppressed the lane in the plaint. Further, in Para No.14 of the judgment of this Court also the existence of the lane and which belongs to Madathiammal is also mentioned. In such situation, the appeal cannot be allowed, but this Court committed error in holding that the wall in dispute is a common wall. The above mistake is an error apparent on the face of the records. In such circumstances, the second appeal is liable to be reviewed. Further, he would submit that East – West was measurement of the plaintiffs house is given only 15-3/4 feet in their parent deed marked as Ex.A12, but in the subsequent document Ex.A4, the East-West measurement is mentioned as 18-3/4 feet, for which no reason was assigned. As such, the plaintiffs cannot claim beyond 15-3/4 feet. http://www.judis.nic.in 4 Hence, the commissioner's report cannot be accepted. The above said mistake was not considered by this Court. These are the apparent error on the face of the record. Hence, the judgment of this Court has to be reviewed. In support of his argument, the learned counsel for the review petitioners relied on the ruling reported in 2016 (10) SCC 315 in SYEDA RAHIMUNIISA Vs. MALAN BI (DEAD) BY LEGAL REPRESENTATIVES AND ANOTHER. Likewise, in the ruling reported in 2004 (13) SCC 535 in KUNWARLAL Vs. DEVA BAI AND OTHERS, wherein it has held as follows:-
“3.The present review petitions were filed whereon a notice has been issued to the respondents since along with the review petitions, the orders dated 1-3-1990 and 28-3-1990 were filed, one passed in Civil Second Appeal No.29 and the other in 40 of 1990. These two orders set out the substantial questions of law framed by the High Court. In that view, it was contended that the basis of the order dated 23-07-2003 the substantial question of law was not framed is not correct. That seems to be so but in ultimate analysis is of no advantage to the review petitioners for the reason that a perusal of the impugned judgment of the High Court does not show that the said substantial questions of http://www.judis.nic.in 5 law, which were formulated by the High Court in the aforesaid two orders, were considered and answered by the High Court in the impugned judgment. In this view, we dismiss the review petitions and maintain the order dated 23-7-2003.”
5.Per contra, the learned counsel for the respondents would submit that after elaborate discussions of both side arguments and the facts of the case is narrated in Para Nos.14 and 17 of the Judgment of this Court. Para No.14 of this Court Judgment is only narration of the facts and it is not all a finding. Further more, consideration of Ex.A4 and Ex.A12 and Commissioner's Report, this Court arrived at a correct conclusion and it is the final verdict. If really, the review petitioners have got any grievance, they ought to have approached the superior Court and they cannot approach this Court once again, as if some apparent error exist on the face of the record. No such error has occurred and there is no merit in the review petition. Hence, the learned counsel for the respondent contended that it has to be dismissed. In support of his argument, the learned counsel for the respondents relied on the ruling reported in 2013 AIAR (Civil) 614 in UNION OF INDIA Vs. SANDUR MANGANESE & IRON ORES LTD. & ORS, wherein it has held as follows:-
http://www.judis.nic.in 6 “24.In the present case, the error contemplated in the impugned judgment is not one which is apparent on the face of the record rather the dispute is wholly founded on the point of interpretation and applicability of Section 11(2) and 11(4) of the MMDR Act. 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. Hence, in review jurisdiction, the court shall interfere only when there is a glaring omission or patent mistake or when a grave error has crept in the impugned judgment, which we fail to notice in the present case.” Likewise, the learned counsel for the respondent relied upon the ruling reported in 2013 SAR (Civil) 216 in VKHILESH YADAV Vs. VISHWANATH CHATURVEDI & ORS, wherein it is held as follows:-
“In fact, in Parsion Devi Vs. Sumitri Devi [(1997) 8 SCC 715] it was observed that if an error is not self-evident and detection thereof requires long debate and process of reasoning, it cannot be treated as an error apparent on the face of the record for the purpose of Order 47 Rule 1 CPC. In other http://www.judis.nic.in 7 words, an order or decision or judgment cannot be corrected merely because it is erroneous in law or on the ground that a different view could have been taken on a point of fact or law, as the Court could not sit in appeal over its own judgment. Similar views were expressed by a Five-Judge Bench of the Federal Court in Sir Hari Shankar Pal and Anr. Vs. Anath Nath Mitter & Ors. [(1949) FCR 36], wherein it was, inter alia, observed that a decision being erroneous in law is certainly no ground for ordering review.” Likewise, the learned counsel for the respondent relied upon the ruling reported in 2013 (6) SCALE 257 in UNION OF INDIA Vs. SANDUR MANGANESE & IRON ORES LTD. & ORS, wherein it is held as follows:-
“22.It has been time and again held that the power of review jurisdiction can be exercised for the correction of a mistake and not to substitute a view. In Parsion Devi & Ors. vs. Sumitri Devi & Ors., (1997) 8 SCC 715, this Court held as under:-
“9. Under Order 47 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 http://www.judis.nic.in 8 record justifying the court to exercise its power of review under Order 47 Rule I CPC. In exercise of the jurisdiction under Order 47 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".
23.This Court, on numerous occasions, had deliberated upon the very same issue, arriving at the conclusion that review 11 Page 12 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 CPC.” Similarly, the learned counsel for the respondent relied on the ruling of this Court reported in 2014 (3) CTC 28 in M.KAMALA KANNAN AND OTHERS Vs. M.MANIKANDAN, wherein it is held as follows:-
“11.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 fact of the record as contemplated under Order 47, Rule 1 of the Code of Civil Procedure. The Review Petitioner cannot reargue the matter on merits and in such case, the remedy available to the Review Petitioner is to file an Appeal and not http://www.judis.nic.in 9 review, when the findings in the Appeal are adverse to them. The review power may be exercised when the same mistake or error apparent on the fact of the records 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 mere looking at the record and would require any long drawn process of reasoning on the points where there may be conceivable be two opinions. A rehearing of the matter is impermissible in law. It constitutues 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.” It is clear from the above said rulings that unless and until there is an error apparent on the face of it, the review petition cannot be entertained.
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6.As per the review petitioners version, two apparent error is stated in the grounds of review petition. The first one is with regard to the contents of Para No.14 of the impugned judgment of this case. The next one relates to Ex.A4 and Ex.A12. First of all, let us see the Paragraph 14 of the judgment. Apparently, in Paragraph 4 and 5 of the Judgment dealt with narration of defence stated in the written statement. Para No.6 dealt with substantial question of law. Para Nos.7 to 9 consist narration of arguments of both side. Para No.10 dealt with the rough sketch and surveyors sketch, i.e., Ex.A9 and Ex.A10. Where as para No.11 dealt with Commissioner's report and other exhibits.
Para Nos.12 and 13 dealt with narration of Commissioner's Report. The Para No.14 dealt with what are the admitted portion of both sides. Para Nos.15 and 16 consist narration of findings of the Courts below. Para No.17 is the discussion of the merits of the case in the second appeal. Para No.18 is the conclusion. Para No.17, commences on the basis of admitted case of both parties that there is a wall in ABCDE portion and DE and AB are the old portion of the common wall and through the points far and against on merits were discussed and the Court arrived at the conclusion. As such the contents of Para No.14 is not at all finding of the Court. So, the conclusion of the petition for review with regard to Para No.14 is not at all sustainable. http://www.judis.nic.in 11
7.As far as the other contention relating to Ex.A4 and Ex.A12 is concerned, it was decided on the face of the Commissioner's report. According to the review petitioners, the Commissioner's report is not correct and the same is to be ignored. However, this Court accepted the Commissioner report marked as Ex.C1. In such situation, if at all any error or mistake found in the merits of the case, it has to be rectified only by approaching the superior Court. It cannot be re- agitated by way of filing review petition. In the case on hand, contending that there is error apparent, the learned counsel for the review petitioners relied upon five rulings and pleaded to entertain the review petition. All the above said citations dealt with the same points. The learned counsel for the review petitioners relied on a ruling reported in 2005 (4) SCC 741 in BOARD OF CONTROL FOR CRICEKT IN INDIA AND ANOTHER Vs. NATAJI CRICKET CLUB AND OTHERS, wherein it is held as follows:-
“90.Thus, a mistake on the part of the Court which would include a mistake in the nature of the undertaking may also call for a review of the order. An application for review would also be maintainable if there exists sufficient reason therefor. What would constitute sufficient reason would depend on the facts and circumstances of the case. The words “sufficient http://www.judis.nic.in 12 reason” in Order 47 Rule 1 of the Code are wide enough to include a misconception of fact or law by a Court or even an advocate. An application for review may be necessitated by way of invoking the doctrine “actus curiae neminem gravabit”
8.Per contra, on the side of the respondents, the learned counsel cited a ruling reported in 2013 (3) SCC 320 in KAMLESH VERMA Vs. MAYAWATI AND OTHERS, wherein it is held as follows:-
“15.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. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error.”
9.Likewise, in the ruling reported in 1997 (8) SCC 715 in PARSION DEVI AND OTHERS Vs. SUMITRI DEVI AND OTHERS, wherein it is held as follows:-
“Under Order 47 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 http://www.judis.nic.in 13 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 review under Order 47 Rule 1 CPC. In exercise of the jurisdiction under Order 47 Rule 1 CPC it is not permissible for an erroneous decision to be "reheard and corrected". A review petition, it must be remembered has limited purpose and cannot be allowed to be "an appeal in disguise."
10.As per the ruling referred on the side of the review petitioners, it has been specifically mentioned in the said judgment itself that “An application for review would also be maintainable if there exists sufficient reason therefor. What would constitute sufficient reason would depend on the facts and circumstances of the case.” So, in the facts and circumstances of the present case, this Court has dealt with admission of parties and on the basis of the measurement taken by the Commissioner with the help of surveyor gave a finding, whereby the second appeal was allowed. As such, this Court is of the view that there is no mis-conception of facts or law. So, there is no error apparent on the face of the records. In such circumstances, the grounds put forth by the review petitioners are all only for the purpose of appeal and not for the review petition. Even http://www.judis.nic.in 14 as per the ruling referred to on the side of the review petitioner, unless and until there is some apparent error in the judgment, the review will not lie. In the latest judgment of the Hon'ble Supreme Court reported in 2013 (8) SCC 320(cited supra), it has specifically defined the scope for review. The Apex Court held that the review is by no means an appeal in disguise whereby an erroneous decisions is reheard and corrected, but lies only for patent error. Thus, as stated above, there is no apparent error on the face of the judgment of this Court and in such circumstances no review can be entertained. Thus, this Court find no merit in the grounds put forth by the review petitioners. Therefore, this Court comes to the conclusion that the review petition canno0t be entertained and the same is bound to be dismissed.
11. In the result, this Review Petition is dismissed. No costs.
01.11.2018 rrg To
1.The Additional Sub Judge, Thirunelveli.
2.The Additional District Munsif Court, Thirunelveli.
http://www.judis.nic.in 15 S.BASKARAN,J., rrg/vs Review Appln.(md)No.125 of 2015 01.11.2018 http://www.judis.nic.in