Madras High Court
A.Elizabeth vs Savari Ammal (Died) on 4 February, 2022
Author: C.V.Karthikeyan
Bench: C.V.Karthikeyan
REV.APLC(MD)No.24 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 03.02.2022
PRONOUNCED ON : 04.02.2022
CORAM
THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN
REV.APLC(MD)No.24 of 2022
in
S.A.No.2003 of 2000
and
C.M.P.(MD)No.628 of 2022
1.A.Elizabeth
2.Therasammal Shanthi
3.Sagaya Elilarasi
4.Arockia Earnest
5.A.Arockiasamy ... Petitioners
vs.
Savari Ammal (Died)
2.Sahaya Mary ... Respondents
PRAYER: Review Application filed under Order 47 Rule 1 and 2 of
C.P.C. to review the order, dated 25.09.2018 in S.A.No.2003 of 2000
passed by this Court.
For Petitioners :Mr.T.S.Mohamed Mohideen
R1 :Died
For R2 :Mr.T.Balaji
*****
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REV.APLC(MD)No.24 of 2022
ORDER
This application has been filed by the respondents in S.A.No.2003 of 2000 seeking review of the judgment, dated 25.09.2018.
2.Heard Mr.T.S.Mohamed Mohideen, learned Counsel for the petitioners and Mr.T.Balaji, learned Counsel for the second respondent.
3.The defendant in O.S.No.223 of 1995 on the file of the District Munsif Court, Thirupathur is the appellant in S.A.No.2003 of 2000.
O.S.No.223 of 1995 had been filed by Kulanthai Therasu and Alphones for declaration of title or in the alternate, declaration of possessory title and consequential injunction to protect possession with respect to punja land measuring 1.22.0 hectares in Nemam Village, Thriuppathur Taluk, Sivagangai District.
4.The learned District Munsif held that the plaintiffs had claimed title on the basis of an unregistered sale deed and observed that the unregistered document is not admissible in evidence and no relief can be 2/10 https://www.mhc.tn.gov.in/judis REV.APLC(MD)No.24 of 2022 granted on the basis of the said document. It was held that the plaintiffs cannot be granted the relief of declaration or the relief of possessory title.
The suit was dismissed.
5.The plaintiffs filed A.S.No.132 of 1998 on the file of the Sub Court, Sivagangai. The learned Subordinate Judge, held that the execution of unregistered sale deed, Ex-A3, had been proved by the evidence of PW-2 and PW-3. It was further held that the terms in the deed can be examined for collateral purpose determining the possession.
Therefore, a decree of permanent injunction restraining the defendants from the disturbing the possession was granted. The defendants then filed the above second appeal.
6.In the second appeal, the following substantial questions of law had been framed:
“1.Whether the Appellate Judge is right in reversing the well considered findings of the Trial Court?
2.On the available facts and circumstances of the case, whether the learned Judge is right in granting the relief of possessory title, without applying the law laid down by this Honourable Court reported in 1999 (3) L. W. 727?” 3/10 https://www.mhc.tn.gov.in/judis REV.APLC(MD)No.24 of 2022
7.The second substantial question of law revolves around the judgment reported in 1999 (3) L.W. 727 in the case of R.Krishnasamy vs Mani Janagarajan. It was held in that case that a relief of injunction cannot be granted against the true owner or against the person having better title. In the above second appeal, Section 54 of the Transfer of Properties Act, 1882 and Section 17 of the Registration Act, 1908 Act were examined and thereafter, it had been held as follows:
“18. Ex.A.3 has been perused by me. It is written in Tamil. It contains three sheets. The first sheet is written in a Rs. 5/-stamp paper. The second and third sheets are plain green sheets. The left thumb impression of the defendant Savariammal has been affixed in each page. The document has been attested by R.M.Veerappan, Government Pleader and Notary, Devakottai. He had attested and stated that the thumb impression was affixed before him. He was not examined as witness in the Court. This is a very significant, because even in the evidence it had come out that the document was prepared and executed in the office of the said Advocate R.M.Veerappan. P.W.2 & P.W.3 are witnesses of the document. The witnesses also affixed their thumb impressions. The document is also attested on the last page by the President of Nemam Village, Panchayat Union. Even that person was not examined as witness to the document. This also assumes significance, because the defendant had clearly stated that she did not know anything about the contents in the said document and that her thumb impression was obtained without reading and explaining the written matter. She claimed to be an illterate person.” 4/10 https://www.mhc.tn.gov.in/judis REV.APLC(MD)No.24 of 2022
8.Thereafter, in paragraph 23, it had been held as follows:
“23. In the present case, Clause 5 applies and it is clear that if the document is inadmissible in evidence for want of registration, it cannot even be relied upon for collateral purpose.”
9.Finally, the judgment and decree of the first appellate Court was set aside and the judgment and decree, dated 20.03.1998 in O.S.No.223 of 1995 was confirmed. The second appeal was allowed with costs.
10.Mr.T.S.Mohamed Mohindeen, learned Counsel for the petitioners called upon this Court to re-examine the observation made in Paragraph 18 referred supra. However, the scope of review application is extremely narrow.
11.Section 114 of the Code of Civil Procedure provides for Review against a decree or order from which an Appeal can be preferred but had not been preferred. Order XLVII of the Code of Civil Procedure provides for review of a Judgment.
12.In (1997) 8 SCC 715 [ Parsion Devi and Others Vs. Sumitri 5/10 https://www.mhc.tn.gov.in/judis REV.APLC(MD)No.24 of 2022 Devi and Others], the Hon-ble Supreme Court has held as follows:~ ?”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 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. Considered in the light of this settled position we fine that Sharma, J. clearly over~stepped the jurisdiction vested in the court under Order 47 Rule 1 CPC. The observation of Sharma, J. that “accordingly“, the order in question is reviewed and it is held that the decree in question is reviewed and it is held that the decree in question was of composite nature wherein both mandatory and prohibitory injunction were provided“ and as such the case was covered by Article the scope of Order 47 Rule 1 CPC. There is a clear distinction between an erroneous decision and an error apparent on the face of the record. While the first can be corrected by the higher forum, the later only can be corrected by exercise of the review jurisdiction. While passing the impugned order, Sharma, J. found the order in Civil Revision dated 25.4.1989 as an erroneous decision, though without saying so in so many words. Indeed, while passing the impugned order Sharma, J. did record that there was a mistake or an error apparent on the face of the record which not of such a nature, “Which had to be detected by a long drawn process of reasons“ and proceeded to set at naught the order of Gupta, J. However, mechanical use of statutorily sanctified phrases cannot detract from the real import of the order passed in exercise of the review jurisdiction. Recourse to review petition in the facts and circumstances of the case was not permissible. The aggrieved judgment debtors could have approached the higher forum through appropriate proceedings, to assail the order of Gupta, J. and get it set aside but it was not open to them to seek a “review of the order of petition. In this view of the matter, we are of the 6/10 https://www.mhc.tn.gov.in/judis REV.APLC(MD)No.24 of 2022 opinion that the impugned order of Sharma, J. cannot be sustained and accordingly accept this appeal and set aside the impugned order dated 6.3.1997.?
13.In (2008) 11 SCC 107 [ T.Thimmaiah (dead) by Lrs. Vs. Venkatachala Raju (dead) Lrs.], the Hon-ble Supreme Court has held as follows:~ ?“2.During the course of hearing, the learned counsel for the appellant has pointed out that a bare perusal of the order in review would reveal that it is based on a complete reappreciation of the matter on facts and the provisions of Order 47 Rule 1 of the Code of Civil Procedure w hich would govern an application for review, have been completely ignored. It has been submitted by the counsel that the Single Judge had, in the first Judgment, examined the facts and dismissed the appeal and on a reconsideration of the same facts, had allowed the same, which was not justified. We find merit in this plea. From a bare perusal of the Judgment in review, it is clear that the principles laid down under Order 47 Rule 1 CPC have been completely ignored. We accordingly allow the appeal, set aside the order in review dated 26.2.2001 and dismiss the appeal in the suit. We, however, give liberty to the respondent herein to challenge the Judgment dated 16.2.1999, if so advised.”?
14.In (2018) 4 SCC 587 [ Sivakami and Others Vs. State of Tamil Nadu and Others], the Hon-ble Supreme Court has held as follows:~ ?“18.The scope of the appellate powers and the review powers are well defined. The power of review under Order 47 Rule 1 of the Code of Civil Procedure, 1908 is very limited and it may be exercised only if there is a 7/10 https://www.mhc.tn.gov.in/judis REV.APLC(MD)No.24 of 2022 mistake or an error apparent on the face of the record. The power of review is not to be confused with the appellate power. The review petition/application cannot be decided like a regular intra court appeal. On the other hand, the scope of appeal is much wider wherein all the issues raised by the parties are open for examination by the Appellate Court.
19. A fortiori, what was not decided in appeal by the Division Bench could not be decided by the Division Bench while deciding the review application. It is for this reason, we are also constrained to set aside the review order.?”
15.No apparent error in the observations had been pointed out by the learned Counsel for the petitioners. As a matter of fact, the second appeal had been allowed on the basis of the judgment of the Honourable Supreme Court. The judgment under view holds and the review applicants have failed to establish a case for review and that the same is dismissed.
16.Mr.T.S.Mohamed Mohideen however stated that reconsideration may be done with respect to the imposition of costs. In view of the fact that the parties have been at lis now for nearly 25 years and more, that portion alone of the judgment is interfered with the grant of costs is removed and the second appeal is allowed without costs.
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17.To that extent, the Review Application is partly allowed.
However, there shall be no order as to costs. Consequently, connected miscellaneous petition is closed.
Index :Yes / No 04.02.2022
Internet :Yes
cmr
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REV.APLC(MD)No.24 of 2022
C.V.KARTHIKEYAN, J.
cmr
Order made in
REV.APLC(MD)No.24 of 2022
04.02.2022
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