Madras High Court
R.Sarala vs Chandrasekar on 3 January, 2012
Author: T.Mathivanan
Bench: T.Mathivanan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 03.01.2012 CORAM: THE HON'BLE MR.JUSTICE T.MATHIVANAN Review Application No.11 of 2010 in A.S.No.1040 of 2004 R.Sarala .... Petitioner Vs. 1.Chandrasekar 2.Mohanraj 3.Thenmozhi ..... Respondents Prayer : Petition filed under Order XLVII Rule 1 & 2 r/w Section 114 of the Code of Civil Procedure to review the Judgment in A.S.No.1040 of 2004, dated 23.09.2008. For Petitioner : Mr.G.Karthikeyan For Respondent : Mr.P.N.George Graham for M/s.Devadason & Sagar for RR1 & 2 No appearance for R3 ***** O R D E R
This review application is directed against the Judgment dated 23.09.2008 and made in A.S.No.1040 of 2004 on the file of this Court.
2. The review applicant is the first respondent in the appeal in A.S.No.1040 of 2004 and the plaintiff in the suit in O.S.No.2550 of 1999, on the file of the learned III Additional City Civil Court, Chennai. The respondents 1 and 2 herein are the appellants in the appeal and the defendants 1 and 2 in the suit. The third respondent herein is the second respondent in the appeal and the third defendant in the suit.
3. The facts, which are absolutely necessary for the disposal of the review application are as under:
3.1. The review applicant has filed the suit in O.S.No.2550 of 1999 against the respondents herein for the following reliefs:
a. for dividing the schedule mentioned property into four equal shares by metes and bounds and allotting 1/4th share to the plaintiff;
b. for permanent injunction restraining the defendants, their men etc.,from alienating or encumbering the suit property of her 1/4th share; and c. for costs.
3.2. One Mrs.Sundaravalli, who is none other than the mother of the review applicant and the respondents had inherited the plaint schedule property under Ex.A2 settlement deed dated 28.04.1964 through her mother Mrs.Radhammal, under which she was given the right of enjoyment in respect of the plaint schedule property till her lifetime and after her death the review applicant and the respondents shall enjoy the property equally.
3.3. The review applicant's mother Mrs.Sundaravalli had expired on 15.02.1994 and after her death the suit property was enjoyed and possessed by the respondents. When the review applicant demanded her 1/4th share in the suit property, the first and second respondents herein had refused to give her share. Hence, she has preferred the suit for partition of 1/4th share and also for permanent injunction as aforestated.
3.4. The third respondent/third defendant remained exparte. The respondents 1 and 2 have contended in their written statement saying that their mother Mrs.Sundaravalli died on 15.02.1994 leaving behind them, review applicant and 3rd respondent as her legal representatives. That on 06.08.1981 the review applicant (plaintiff) had executed a release deed (Ex.B1) and thereby she had relinquished her right, title and interest. After the execution of the said release deed dated 06.08.1981, the review applicant had no right, title and interest or any share in the plaint schedule property. The respondents 1 and 2 in their written statement have also contended that the third respondent / third defendant, who is one of the co-sharer, had also released her right, title and interest in the suit property in favour of them and as such they became absolute owners of the suit property.
3.5. For the written statement filed by the respondents 1 and 2, the review applicant has filed a reply statement contending that to the best of her knowledge she had not executed any release deed as alleged by the respondents 1 and 2 on 06.08.1981. In fact, on the alleged date of execution of release deed viz. 06.08.1981 the review applicant was a minor aged about 16 years and 7 months. As per the settlement deed dated 28.04.1964, the review applicant and the respondents would be acquiring right over the suit property only after the death of their mother Mrs.Sundaravalli, who died on 15.02.1994. If at all any release deed was executed by the plaintiff on 06.08.1981 it is not valid as the review applicant and the respondents did not have any right over the suit property at that time.
3.6. In order to substantiate their respective cases, the parties to the suit were made to face the trail. On evaluating the evidences both oral and documentary, the learned trail Judge had decreed the suit as prayed for. Impugning the Judgment of the trail Court, the respondents 1 and 2 herein being the defendants 1 and 2 in the suit had preferred an appeal before this Court in A.S.No.1040 of 2004.
3.7. Based on the grounds of the appeal, this Court has carved out the following two points for the disposal of the appeal:
i. Whether the plaintiff had relinquished her right, title and interest in respect of the plaint schedule property under Ex.B.1 in favour of the defendants? ii. Whether the decree and judgment of the learned trail Judge in O.S.N0.2550 of 1999 on the file of the learned III Additional Judge, City Civil Court, Chennai, is to be set aside for the reasons stated in the memorandum of appeal?
3.8. After hearing both sides, this Court has found that:
i. Even though the plaintiff (review applicant) in her reply statement before the trail Court had raised a contention that she was not aware of Ex.B1, even after filing of Ex.B1 before the trail Court, she had not taken any steps to amend the plaint relief so as to set aside Ex.B1 release deed.
ii. Under Article 59 of the Limitation Act, 1963 also the plaintiff had not taken any steps to cancel or set aside Ex.B1 release deed dated 06.08.1981.
iii. In the absence of any proof to show that on date of Ex.B1 release deed the plaintiff was a minor, the release deed executed by the plaintiff under Ex.B1 in favour of defendants 1 and 2 in respect of her share in the suit property can not be rejected.
iv. Ex.A1 transfer certificate is not a valid proof for the date of birth of the plaintiff.
Under the above grounds, this Court has proceeded to allow the appeal after setting aside the Judgement and decree in O.S.No.2550 of 1999.
3.9. While allowing the appeal, this Court has also observed that the plaintiff (review applicant) is at liberty to challenge Ex.B1 by producing relevant proof in a separate suit, if she is so advised. Time for the purpose of limitation will run from today.
3.10. The Judgement in the appeal and the observation made therein have been brought before this Court for review.
4. Heard the learned counsel appearing for the petitioner as well as the learned counsel appearing for the respondents 1 and 2.
5. Before we go into the merits of this review application, let the Court first decide it's maintainability.
6. It is quite relevant to place it on record that not with standing the question of maintainability, the proviso to Section 114 of the code of Civil Procedure does not prescribe any limitation on the power of the Court. Such limitations have been provided in Order 47 Rule 1 of the code of Civil Procedure.
7. Virtually Section 114 of the Code of Civil Procedure empowers a Court to review it's Order if the conditions precedents laid down therein are satisfied. The substantive provision of law does not prescribe any limitation on the power of the Court except those which are expressly provided in Section 114 of the Code of Civil Procedure in terms whereof it is empowered to make such order as it thinks fit. This dictum is held in Board of Control for Cricket, India vs. Netaji Cricket Club and Others, (AIR 2005 SC 502 (605).
8. It may also be quite relevant to extract the proviso to Section 114 of the code of Civil Procedure.
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 Court, 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.
9. It is significant to note here that under Section 114 of the code of Civil Procedure any person considering himself being aggrieved by a decree or Order, is having competency to make an application for a review of Judgement to the Court, which passed the decree. The scope and application of Section 114 of the code of Civil Procedure is, any person who has been considering himself as aggrieved by a decree or Order from which he is entitled to appeal, but he has not actually preferred any appeal.
10. Secondly, any person considering himself as aggrieved by a decree or Order, from which no appeal is allowed by this Court.
11. Thirdly if any person considering himself as aggrieved by a decision on a reference from a Court of Small causes may apply for review of the Judgment to the Court, which passed the decree or made the Order.
12. In Inderchand Jain (D) through L.Rs. vs. Motilal (D) through L.Rs, reported in CDJ 2009 SC 1488, the Apex Court has held that Section 114 of the Code of Civil Procedure 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.
13. The grounds on which review can be sought are enumerated in Order 47 Rule 1 of the Code of Civil Procedure, which reads as under:
R.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,
(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.
The person, who is the review applicant herein comes under the category of Clause (a) to Section 114 of the Code of Civil Procedure as well as Clause (a) of sub-rule (1) to Rule 1 of Order 47 of the Code.
14. Mr.G.Karthikeyan, learned counsel appearing for the review applicant, while advancing his arguments, has submitted that despite the non-production of contra evidence to Ex.A1 transfer certificate to prove the date of birth of review applicant/plaintiff, this Court has not readily accepted the contention of the review applicant that she was a minor at the time of alleged execution of Ex.B2 release deed and in this aspect the review applicant is an aggrieved person and as such she is fully competent to make this application seeking a relief of review of the Judgment.
15. In order to substantiate his contention, he has placed reliance upon a decision in Inderchand Jain (D) through L.Rs. vs. Motilal (D) through L.Rs, reported in CDJ 2009 SC 1488. In this case, while speaking on behalf of the Division Bench, His Lordship Hon'ble Mr.JUSTICE S.B.SINHA has held that an application for review would lie 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 order to strengthen this reasonings, His Lordship has quoted the decision in Rajendra Kumar vs. Rambai [AIR 2003 SC 2095]. In this case, the Apex Court has held that 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.
16. After referring the above cited decision, His Lordship has also observed that 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 sufficient reason.
17. Besides this, His Lordship has also made it clear that 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 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.
18. His Lordship has also, while penning down the Judgment, made reference to an another decision in Lily Thomas vs. Union of India [AIR 2000 SC 1650]. In paragraph No.56 of the above cited decision, the Apex Court has held that 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.
19. On the other hand Mr.P.N.Geroge Graham, learned counsel appearing for the respondents 1 and 2 has vehemently questioned the maintainability of the revision petition as well as the admissibility of Ex.A1 transfer certificate into evidence pertaining to the date of birth of the revision petitioner. He has also adverted to that if at all the revision petitioner has got aggrieved by the Judgment of this Court, let her go for appeal challenging the correctness.
20. In support of his contention, he has placed reliance upon a decision in Savitri Devi vs. Lal Chand Agarwal reported in 2004 AIHC 4887. In this decision in paragraph No.46 had been highlighted.
21. In paragraph No.46, the learned single Judge of Allahabad High Court has held that in my opinion, while dealing with the review petition, it is not open to the Court to consider and adjudicate upon the correctness or otherwise of the judgment sought to be reviewed. The scope of review is a limited one. The Court while dealing with a review application cannot act as an appellate Court and consider the merits of the judgment sought to be reviewed. Review cannot be appeal in disguise (Lal Mohammad vs. S.D.O.,Bareilly, 1959 All LJ 223). Therefore, it is not necessary to deal with the submissions made by the learned counsel for the parties on the correctness or otherwise of the said judgment dated 17th January, 1984.
22. Besides this, the learned counsel for the respondent 1 and 2 has also placed the following decisions for the purpose of fortifying his contentions:
i. Shakooran Begum vs. Mohammed Waris, 2005 AIHC 547, ii. B.Dhanalakshmi vs. M.Shajahan, AIR 2004 Madras 512, iii. Shanmugam Servai vs. Periyakaruppan Servai, 1996 MLJ 600, iv. Jeyaraman vs. Union of India, AIR 2003 Madras 29, v. Ajit Kumar Rath vs. State of Orissa, AIR 2000 SC 85, vi. Meera Bhanja vs. Nirmala Kumari Choudhury, AIR 1995 SC 455, vii. Northern India Caterers vs. Lt.Governor, Delhi,AIR 1980 SC 674, viii. K.R.M.Money Lenders vs. A.Mohanram @ Doss, 2002-3-LW 104, ix. Sanjeev Sarin vs. Rita Wadhwa, 2002 AIHC 628, and x. Pravakar Pati vs. Ajaya Kumar Das and another, 1996 Crl.LJ 2626.
23. In Shakooran Begum vs. Mohammed Waris, 2005 AIHC 547, the plaintiff had filed an appeal against the Order allowing the review application passed by the Court below. Considering the related facts and circumstance the learned single Judge of Allahabad High Court has held that the error if any in appreciation of evidence or law can be corrected only by an appellate Court and not in exercise of review jurisdiction. The Court below clearly exercised the appellate jurisdiction, while allowing the review application, which is not permissible under the law. The Order passed by the Court below cannot be sustained and is liable to be set aside.
24. In B.Dhanalakshmi vs. M.Shajahan, AIR 2004 Madras 512, the Division Bench of this Court has held that the power of review is available only when there is an error apparent on the face of the record and not on erroneous decision. If the parties aggrieved by the judgment on the ground that it is erroneous, remedy is only questioning the said order in appeal. The power of review under O.47, R.1, C.P.C. may be opened inter alia only if there is a mistake or an error apparent on the face of the record. The said power cannot be exercised as is not permissible for an erroneous decision to be 're-heard and corrected'. A review application also cannot be allowed to be 'an appeal in disguise'. Similarly, the error apparent on the face of the record must be such an error, which must strike one on mere looking at record and would not require any long drawn process of reasoning on points, where there may conceivably be two opinions. Thus in the present case, period taken by the appellants to file writ petitions may have bearing in computing the period of limitation as the objectors cannot be allowed to take their own time to file writ petition. However, the order setting aside the grant on the ground that the revision petitions were maintainable cannot be reviewed by adding number of days taken by the writ appellants for filing the writ petitions after the copy application was received.
25. In Shanmugam Servai vs. Periyakaruppan Servai, 1996 MLJ 600, it is held that to entertain a review pursuant to O.47 of the Civil Procedure Code, first of all, a Court must identify a mistake or error warranting a review under O.47, Rule 1, which is most often at error of fact and may, in certain cases, be one of law. But in all cases, it should be an error or inadvertence and in the case of an error of law, it should not have been arrived at by a process of conscious reasoning and the correction suggested as asked for should be such that the bare statement carries conviction without further reasoning or extraneous matter. Then, the test to be applied is whether the court itself would have made the correction if it was aware of the particular fact of circumstance while writing the judgment. An erroneous view on a debatable point of law or a failure to interpret the law correctly would not be a mistake or error apparent on the face of the record.
26. The remaining decisions cited above are on the same line. Hence, they need not be reiterated here.
27. On coming to the instant case on hand, it is apparent from the records that the learned single Judge of this Court, while penning down the Judgment, has not accepted Ex.A1 school transfer certificate of the review applicant, which was exhibited to prove her age. The prime contention of the review applicant is that Ex.B1 release deed was executed when she was a minor.
28. The learned counsel for the review applicant has submitted that since Ex.B1 was said to have been executed by the review applicant when she was minor, the document had become void abinitio and hence Ex.B1 had lost its sanctity as well as the evidenciary value. He has also urged before this Court that when Ex.B1 itself had lost its evidenciary value, it could not be admitted into evidence. He has also added that Ex.A1 school transfer certificate ought to have been admitted by the learned single Judge in the absence of contra evidence on the part of the respondents 1 and 2. Had the document under Ex.A1 been accepted by the learned single Judge, the question of review of the Judgment would not have been arisen.
29. While advancing his arguments, the learned counsel for the review applicant, has also pointed out that at the conclusion of the Judgment the learned single Judge had observed that the plaintiff viz. the review applicant was at liberty to challenge Ex.B1 by producing relevant proof in a separate suit, if she was so advised and that the time for the purpose of limitation would run from the date of passing of Judgment.
30. In this connection, the learned counsel has once again reiterated the decision in Inderchand Jain (D) through L.Rs. vs. Motilal (D) through L.Rs, reported in CDJ 2009 SC 1488. In this case it is observed that an application for review would lie 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. It is also significant to note here that the same view has also been taken by the Apex Court in Rajendra Kumar vs. Rambai [AIR 2003 SC 2095] observing that 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.
31. In the light of the above quoted decision the Judgment, which is sought to be reviewed by the applicant doth certainly suffer from error. If the Judgment is permitted to continue, certainly it will lead to failure of justice.
32. It is also manifested that the learned single Judge has also made an observation saying that the review applicant is at liberty to challenge Ex.B1 by producing relevant proof in a separate suit. Keeping in view of the above observation, this Court is of considered view that if this observation is allowed to continue definitely it will not only lead to failure of justice, but the review applicant will also be put in an ordeal of facing another trial for the same cause of action and hence this Court is inclined to review the Judgment of this Court rendered by the learned single Judge.
33. It is apparent that at the time of execution of document under Ex.B1 the review applicant was aged about 16 years and 7 months. Obviously, this document has also been written in English. We can understand that at the age of 16 years and 7 months the review applicant might not have had the capacity of understanding the terms of the release deed and probably she would not have been placed under the capacity to understand the purpose and importance of the document.
34. In her cross-examination she has stated that she came to know about the execution of the release deed by her only after receiving the reply notice from the respondents 1 and 2. In this connection, a contention was raised by the learned counsel for the respondents 1 and 2 that the suit, filed by the review applicant / plaintiff without seeking the relief of cancellation of document under Ex.B1, is not maintainable.
35. According to the learned counsel appearing for the review applicant / plaintiff, the document under Ex.B1 is void abinitio and hence no prayer is necessary for the cancellation of the document in the suit.
36. It may be quite relevant to have reference to Chapter V of the Specific Relief Act 1963. Section 31 of the Specific Relief Act deals with the cancellation of instruments. For the better adjudication of this issue it is imperative on the part of this Court to extract Section 31. It reads as follows:
S.31. When cancellation may be ordered.- (1) Any person against whom a written instrument is void or voidable, and who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable : and the Court may, in its discretion, so adjudge it and order it to be delivered up and cancelled.
(2) If the instrument has been registered under the Indian Registration Act, 1908 (16 of 1908), the Court shall also send a copy of its decree to the officer to whose office the instrument has been so registered; and such officer shall note on the copy of the instrument contained in his books the facts of its cancellation.
37. Section 31 of the Specific Relief Act, 1963 thus embodies both void and voidable document. It also provides a discretionary relief. As observed by the Apex Court, in Prem singh & others v. Birbal & others, 2007-1-L.W.873, when a document is void ab initio, a decree for setting aside the same would not be necessary as the same is non-est in the eye of law, as it would be a nullity.
38. Further, it may also be relevant to refer Paragraph No.26 of the above cited decision.
26. If a deed was executed by the plaintiff when he was a minor and it was void, he had two options to file a suit to get the property purportedly conveyed thereunder. He could either file the suit within 12 years of the deed or within 3 years of attaining majority.........
39. On coming to the instant case on hand, the review applicant/plaintiff did not either sue within twelve years of the deed or within three years of attaining majority. Under this circumstance, it may also be quite relevant to refer the evidence of P.W.1. Ex.A1, transfer certificate appears to have been issued by the Headmistress of Corporation Girls Higher Secondary School, Madras, reveals that the date of birth of the review applicant is 09.01.1965. This is a public document that too a primary documentary evidence.
40. Chapter V of the Indian Evidence Act, 1872 deals with documentary evidence. Section 61 contemplates proof of contents of documents.- The contents of documents may be proved either by primary or by secondary evidence.
41. As observed herein above, Ex.A1, transfer certificate, is a primary document produced by the review applicant/plaintiff at the time of giving her evidence. It has been recognized under Madras Educational Rules.
42. Section 74 of the Indian Evidence Act, 1872 defines the term 'Public Documents' as under:
S.74. Public documents.- The following documents are public documents:-
(1) documents forming the acts or records of the acts-
(i) of the sovereign authority,
(ii) of official bodies and tribunals, and
(iii)of public officers, legislative, judicial and executive [of any part of India or of the Commonwealth], or of a foreign country, (2)public records kept in [any State] of private documents.
43. This section defines what are known as public documents. Documents other than those which come under the definition are called private documents as defined under Section 75 of the Indian Evidence Act, 1872. Public documents form an exception to the Hearsay rule and their admissibility rests on the ground that the facts contained therein are of public interest and the statements are made by authorised and competent agents of the public in the course of their official duty.
44. As contemplated under Section 35 of the Indian Evidence Act with regard to the relevancy of entry in public record or an electronic record made in performance of duty, when it is the duty of a public officer to make some entries in any public or other official book, it is admissible in evidence to prove the truth of the facts entered as well as the fact that the entries were made by the officer. As held in Liladhar v. Mabibi, AIR 1934 N 44, Hrishikesh vs. Sushil, AIR 1957 C 211, Jagadananda v. Rabindra AIR 1958 C 533, Anadi vs. Rabindra, AIR 1962 C 265, school certificates are admissible in evidence. Matriculation certificates and age as recorded in the school certificate can also be relied on. Further entry in admission register is a very important piece of evidence.
45. Under this circumstance, this Court without any axilation or hesitation can hold that Ex.A1 can very well be relied upon to determine that the date of birth of the review applicant / plaintiff is 09.01.1965. Under this circumstance, this Court finds that at the time of execution of Ex.B1 release deed the review applicant / plaintiff was aged about 16 years and 7 months. When such being the case, at the time of execution of Ex.B1 release deed, the review applicant / plaintiff was a minor. On account of this fact, Ex.B1 has become void abinitio and non-est in the eyes of law. Hence, as held in Prem singh & others v. Birbal & others, 2007-1-L.W.873, by the Apex Court, when a document is void ab initio, a decree for setting aside the same would not be necessary as the same is non-est in the eye of law, as it would be a nullity.
46. The another contention raised by the learned counsel appearing for the respondents 1 and 2 is that the suit itself has been barred by the law of limitation. He has also contented that the suit ought to have been filed by the review applicant / plaintiff within twelve years from the date of execution of the document under Ex.B1 or within three years of her attaining majority.
47. Countering the argument, the learned counsel appearing for the review applicant / plaintiff has adverted to that the review applicant herself has stated in her evidence that she came to know about the execution of Ex.B1 only after receiving the reply notice from the respondents 1 and 2 and hence if at all the period is reckoned for the filing of the suit the period shall run from the date of knowledge of execution of Ex.B1 as she was a minor at the time of execution of Ex.B1 i.e. at the age of 16 years and 7 months and under this circumstance she might not be in a position to understand the terms of Ex.B1.
48. This Court has carefully considered the submissions made on behalf of both sides. After striking the balance between to contentions, this Court finds that the argument advanced on behalf of the review applicant / plaintiff is having some force.
49. Part IV of the Limitation Act, 1963 relates to suits relating to decrees and instruments. Article 59 embodies to cancel or set aside an instrument or decree or for the recission of a contract. The period of limitation is three years when the facts entitling the plaintiff to have the instrument or decree cancelled or set aside or the contract rescinded first become known to him.
50. On a perusal of the evidence given by P.W.1 and from the arguments advanced by the learned counsel for the review applicant, it is revealed that P.W.1 came to know about the alleged execution of release deed under Ex.B1 only after receiving the reply notice from the respondents 1 and 2. This piece of evidence has not been emphatically denied by the respondents by placing evidence that P.W.1 was having knowledge about the execution of Ex.B1 earlier. In the absence of contra evidence, this Court finds that the evidence given by P.W.1 can be admitted.
51. Keeping in view of the above facts, this Court is of considered view that the review applicant / plaintiff has really been aggrieved by the decree and Judgment of this Court, from which the review petition has been preferred. This Court also finds that the review petition is maintainable as there are sufficient reasons, which are omitted to be considered. This Court is also of view that if it is permitted to be continued, definitely it will lead to failure of justice.
52. In the result, the review petition is allowed and the Judgment and decree dated 23.09.2008 and made in A.S.No.1040 of 2004 on the file of this Court are dismissed. Decree and Judgment dated 16.07.2003 in O.S.No.2550 of 1999, on the file of the learned III Additional City Civil Court, Chennai are confirmed. Consequently, connected miscellaneous petitions are closed. Considering the relationship of the parties to the review application, there is no Order as to costs.
03.01.2012 Index : Yes/No Internet : Yes/No krk T.MATHIVANAN, J. krk Pre-Delivery Order in Review Appln.No.11 of 2010 in A.S.No.1040 of 2004 03.01.2012