Ramathal, W/o. Semalai Gounder, Nallur v. Palanisamy Gounder
2003-08-14
P.SATHASIVAM, S.K.KRISHNAN
body2003
DigiLaw.ai
P.Sathasivam, J.: Civil Miscellaneous Appeal is directed against the order of the learned Subordinate Judge, Tiruppur made in Review Petition No.5756 of 2002 dated 25.2.2003 in and by which the learned Subordinate Judge allowed the Review application and set aside the order dated 20.12.2002, passed in C.M.A.No.26 of 2000. 2. The case of the appellant in this appeal is briefly stated hereunder: According to her, she filed a suit for partition and separate possession of her 1/6 share in the properties, subject matter of the suit in O.S.No.124 of 1991 on the file of Subordinate Judge, Tiruppur, against her brothers, sister and daughters of the pre-deceased sister. The suit was filed by her on 22.3.1991. Since the defendants remained absent, an ex parte preliminary decree for partition was passed by the learned Subordinate Judge, Tiruppur on 28.10.1991. The first defendant in the suit/respondent herein had filed his written statement in the month of September, 1994. Consequent to the enhancement of the pecuniary jurisdiction, the suit was transferred to the Court of District Munsif, Tiruppur and re-numbered as O.S.No.502 of 1996. On 12.4.2000 the cases that were posted in the list on 7.6.2000 were finalised by the District Munsif, Tiruppur. The suit filed by her was also posted in the list on the said date. However, on 7.6.2000 yet another list was affixed showing the cases that were stated to be posted in the list on July, 2000. The suit filed by her was shown to be posted in the list on 11.7.2000. It is stated that on the basis of that list, she was led to believe that her case would not be called on 7.6.2000, and therefore she did not attend the Court on 7.6.2000. It appears that her advocate had made an endorsement reporting no instructions and based on the endorsement, the suit filed by her was dismissed. Thereafter, she filed I.A.No.628 of 2000 seeking the restoration of the suit dismissed on 7.6.2000. The respondent filed a counter opposing the said application. The learned District Munsif refusing to accept her stand dismissed her application. Aggrieved by the said order, she preferred C.M.A.No.26 of 2000 on the file of the Subordinate Judge, Tiruppur on 27.9.2000.
Thereafter, she filed I.A.No.628 of 2000 seeking the restoration of the suit dismissed on 7.6.2000. The respondent filed a counter opposing the said application. The learned District Munsif refusing to accept her stand dismissed her application. Aggrieved by the said order, she preferred C.M.A.No.26 of 2000 on the file of the Subordinate Judge, Tiruppur on 27.9.2000. Since notice could not be served on the respondents therein, the learned Subordinate Judge, by order dated 29.2.2002, had permitted her to take substituted service on the respondents by publication in one issue of ‘Dinamalar’ and the date of hearing was posted on 8.11.2002. On that date, the respondent therein were called absent and set ex parte and the matter was posted for enquiry to 13.11.2002. On 13.11.2002, her counsel had argued the matter and the learned Judge was pleased to adjourn the matter for orders to 27.11.2002. On 27.11.2002, the respondent herein and the first respondent in C.M.A.No.26 of 2000 filed an application to set aside the ex parte order dated 8.11.2002. Since there was no serious objection, the learned Judge allowed the I.As., on the same day and the matter was adjourned for argument on 2.12.2002. The matter was argued by both sides and the C.M.A. was adjourned for orders. On 20.12.2002, the learned Subordinate Judge allowed the appeal on the ground that on equity she should be given an opportunity to proceed with her suit. Aggrieved by the said order, the respondent herein filed Review Petition No.5756 of 2002, contending that the arguments heard on 2.12.2002 was not considered and that the appeal had to be once again heard on merits. She objected to the very maintainability of the Review Petition. However, the learned Subordinate Judge without appreciating the facts on hand proceeded to allow the review petition and confirmed the order dated 7.6.2000 passed by the learned District Munsif, Tiruppur. Aggrieved by the said order, she preferred the present appeal. 3. Heard learned counsel for the appellant as well as respondent. 4. Ms.P.T.Asha, learned counsel for the appellant, after taking us through the orders of the learned District Munsif as well as the learned Subordinate Judge, would contend that the learned Subordinate Judge erred in allowing the review application and confirming the order of the learned District Munsif without once again restoring C.M.A.No.26 of 2000 to his file and re-hear the parties.
Ms.P.T.Asha, learned counsel for the appellant, after taking us through the orders of the learned District Munsif as well as the learned Subordinate Judge, would contend that the learned Subordinate Judge erred in allowing the review application and confirming the order of the learned District Munsif without once again restoring C.M.A.No.26 of 2000 to his file and re-hear the parties. On the other hand, Mr.K.N.Basha, learned counsel for the respondent herein, would contend that the learned Subordinate Judge is perfectly right in allowing the review application by setting aside the order dated 20.12.2002 in C.M.A.No.26 of 2000. He also submits that there is no merit in the appeal and prayed for dismissal of the same. 5. We have carefully considered the rival submissions. 6. The respondent herein filed a review petition in Review Petition No.5756 of 2002 on the file of the Subordinate Judge, Tirupur to review the order passed on 20.12.2002 in C.M.A.No.26 of 2000 filed under O.47, Rule 1, C.P.C. In the grounds of review petition, it is stated that he was set ex parte on 8.11.2002 and filed a petition on 18.11.2002 to set aside the same. According to him, it was allowed and the C.M.A. was posted to 2.12.2002 it self and the same was adjourned to 16.12.2002 for orders. It is also his case that it was further adjourned to 20.12.2002 for orders. It is the claim of the Review Petitioner that the C.M.A. was allowed ex parte on 20.12.2002. It is further contended that the order that was passed treating the review petitioner ex parte is an error on the face of the record and the learned Judge failed to consider the arguments advanced on 2.12.2002. A perusal of the order dated 20.12.2002 made in C.M.A.No.26 of 2000 shows that the learned Judge has stated that arguments on both sides were heard by him, in effect the respondent herein, namely, Palanisamy Gounder was not heard, since he was set ex parte.. It is further seen that he filed a petition on 18.11.2002 to set aside the ex parte order and it is his claim that elaborate argument was heard on 2.12.2002 which was not considered while passing order on 20.12.2002.
It is further seen that he filed a petition on 18.11.2002 to set aside the ex parte order and it is his claim that elaborate argument was heard on 2.12.2002 which was not considered while passing order on 20.12.2002. We have already referred to the fact that review petition was filed under O.47, Rule 1, C.P.C. It is relevant to refer a decision of one of us (P.Sathasivam, J.,) in Hindustan Photo Films Co. Limited v. H.B. Vinoba, (1999)1 C.T.C. 30 , wherein after considering the relevant provision, it was held that power of review cannot be exercised on grounds that decision was erroneous on merits. It is also relevant to refer a Division Bench decision of this Court in Jayaram v. Union of India, (2002)4 C.T.C. 663 (P.Sathasivam and P.Thangavel, JJ.,) wherein the Division Bench has considered all the earlier case laws of the Supreme Court and of this Court and held that it is well settled that the review proceedings have to be strictly confined to the ambit and scope of O.47, Rule 1, C.P.C. and the review proceedings are not by way of appeal. The Bench has also held that review can be filed if there is apparent error on the face of the record and the review proceedings are not by way of appeal. The Bench further held that 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. The Bench has also held that subsequent change in law is not a ground for review. We are in agreement with the view expressed in both the decisions. 7. Under O.47, Rule 1, C.P.C., 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 to review under O.47, Rule 1, C.P.C. It is not permissible for an erroneous decision to be “re-heard and corrected” while exercising jurisdiction under O.47, Rule 1.
As observed in Persion Devi v. Sumita Devi, (1998)1 C.T.C. 25, a review petition has a limited purpose and cannot be allowed to be “an appeal in disguise”. In the light of the above legal position, we are satisfied that the learned Subordinate Judge has not considered the ex parte order passed on 8.11.2002 and posted the C.M.A. to 2.12.2002 nor arguments on merits. Though there is a ground for review, since there is an error apparent on the face of the record, as rightly pointed out by the learned counsel for the appellant, the learned Subordinate Judge has erred in overlooking all the provisions of O.47, Rule 8, C.P.C. The learned Subordinate Judge allowed the review petition and confirmed the order of District Munsif, Tirupur dated 6.9.2000 in the following manner: As per Rule 8, when an application for review is granted, a note thereof shall be made in the register and the Court may at once rehear the case or make such order in regard to the rehearing as it thinks fit. Here, in this case, the learned Subordinate Judge has committed an error in treating the review petition as an appeal, totally overlooking the fact that O.47 makes it mandatory that the Court reviewing the order should once again rehear the case. As rightly argued by the learned counsel for the appellant, when the learned Subordinate Judge set aside the order passed in C.M.A.No.26 of 2000 dated 20.12.2002, the next step to be adhered to is to rehear the C.M.A. on merits by affording opportunity to both parties. Without resorting to such procedure, the order of the Subordinate Judge in confirming the order of the District Munsif dated 6.9.2000 passed in I.A.No.628 of 2000 in O.S.No.52 of 1996 clearly shows that he has exceeded his jurisdiction. Hence, the order passed in Review Petition No.5756 of 2002 dated 25.2.2003 in so far as confirming the order of District Munsif, Tirupur dated 6.9.2000 in I.A.No.628 of 2000 is set aside. To this extent, the C.M.A. is allowed. No costs. The learned Subordinate Judge is directed to restore C.M.A. No.26 of 2000 to his file and dispose of the same afresh on merits, after rehearing both parties and after affording opportunity to them.
To this extent, the C.M.A. is allowed. No costs. The learned Subordinate Judge is directed to restore C.M.A. No.26 of 2000 to his file and dispose of the same afresh on merits, after rehearing both parties and after affording opportunity to them. He is further directed to dispose of the appeal (C.M.A. 26 of 2000) within a period of two months from the date of receipt of a copy of this order, uninfluenced by any of the observations made above. Consequently, C.M.P.Nos.6641 and 6642 of 20002 are closed as unnecessary.