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2004 DIGILAW 655 (MAD)

S. Ramachandran v. G. Subbaraj

2004-04-16

N.V.BALASUBRAMANIAN, R.BANUMATHI

body2004
Judgement R. BANUMATHI, J. :- Review Application No. 101 of 2003 : This application is filed under Order 47, Rule 1, C.P.C., read with Section 114, C.P.C., to review the Judgment of this Court dated 1-8-2003 passed in A.S. No. 788 of 1997. The Review Petitioner S. Ramchandran is the Plaintiff. The Respondents 1 to 4 are the Appellant/Defendants in the suit in O.S. No. 1001 of 1990 on the file of First Additional Subordinate Judge, Madurai. 2. The Review Petitioner/Plaintiff and the First Respondent/D-1 are cousins. Relating to the family properties, the Review Petitioner/ Plaintiff filed the suit in O.S. No. 1001 of 1990 on the file of First Additional Subordinate Judge, Madurai for partition and separate possession of his share, including the properties standing in the name of their ancestors and the properties standing in the name of the Respondents/Defendants.The suit ended in compromise. The said compromise was challenged by the Defendants 1 to 4/Appellants in A.S. No. 788 of 1997. By the judgment dated 1-8-2003, this Court set aside the judgment of the Trial Court and remanded the matter of the lower Court for fresh trial. 3. While the matter was heard and disposed of, the Memo of Compromise filed along with the petition in I.A. No. 117 of 1995 was not available. It was then represented that the matters relating to I.A. No. 117 of 1995 were misplaced by the trial Court. In that context , this Court in the judgment dated 1-8-2003 observed thus : "........ Therefore, in the above circumstances, it is highly doubtful whether the final decree is, as a matter of fact, prepared on the basis of I.A. No. 117 of 1995 ..........." "............. Admittedly, the papers relating to I.A. No. 117 of 1995 are not available. There is no proof that I.A. No. 117 of 1995 was ever filed ............" "......... We have found that it is highly doubtful whether the second compromise memo was filed and I.A. No. 117 of 1995 was registered and taken on file and the decree was passed in terms thereof. Admittedly, I.A. No. 117 of 1995 is missing and the officers who had handled it have admitted the loss." 4. Now, this Review Application is filed along with the certified copy of I.A. Register Extract. Admittedly, I.A. No. 117 of 1995 is missing and the officers who had handled it have admitted the loss." 4. Now, this Review Application is filed along with the certified copy of I.A. Register Extract. According to the Review Petitioner, I.A. No. 116 of 1995 and I.A. No. 117 of 1995 were filed before the Trial Court on 27-3-1995 and I.A. Register Extract reflects the filing of "I.A. No. 116 of 1995 Hearing Advance Application (No objection endorsed on behalf of the respondents 1 to 4) I.A. No. 117 of 1195 Application to record the compromise ....... Read over to the parties and admitted by them to be correct ...... Compromise Recorded." The present Review Application is filed on the footing that this Court proceeded and delivered the Judgment on the only ground of non-availability of the application in I.A. No. 117 of 1995. Laying emphasis upon the filing of I.A. No. 116 of 1995 and I.A.No. 117 of 1995, the Review Petitioner seeks to review the Judgment dated 1-8-2003 in A.S.No. 788 of 1997, rendered by P. S., J., on behalf of the Division Bench. 5. We have heard learned counsel for the Review Petitioner. 6. Learned counsel for the Review Petitioner contended that a perusal of I.A. Register Extract shows that at the time of recording of compromise in I.A. No. 117 of 1995, the parties were present and the terms of compromise were read over to the parties, admitted by them to be correct and the compromise was recorded on 27-3-1995. It is further contended that with the clear entries in the I.A. Register Extract, the doubt in the mind of the Court as to the non-availability of I.A. No. 117 of 1995 would be clear and thus seeks to review the Judgment dated 1-8-2003. 7. Of course, in the Judgment dated 1-8-2003 in A.S. No. 788 of 1997, this Court has observed "The question revolves around the fact whether I.A. No. 117 of 1995 was in fact filed and recorded. There is no proof that I.A. No. 117 of 1995 was ever filed". But, by a careful perusal of the Judgment sought to be reviewed, it is clear that apart from non-availability of the interlocutory application in I.A. No. 117 of 1995, this Court had also considered the legal aspect of the compromise. There is no proof that I.A. No. 117 of 1995 was ever filed". But, by a careful perusal of the Judgment sought to be reviewed, it is clear that apart from non-availability of the interlocutory application in I.A. No. 117 of 1995, this Court had also considered the legal aspect of the compromise. In para (10) of the Judgment dated 1-8-2003, the legal aspect of the compromise was gone into and this Court has observed, "....... we are satisfied that there was no acceptable compromise in terms of Order 23, Rule 3, C.P.C. ........". This Court has observed, "........ the Civil Court first to be satisfied that the argument or compromise which has been entered into between the parties is lawful, before accepting the same and that the Court is expected to apply its judicial mind while examining the terms of the settlement before the suit is disposed of in terms of the agreement." 8. Referring to the Judgment of the Supreme Court in Banwarilal v. Chando Devi, 1993 (1) SCC 581 : ( AIR 1993 SC 1139 ), this Court has also considered the maintainability of the appeal as against the decree passed in terms of the compromise. After elaborately going into the various aspects, to set aside the Judgment of the Trial Court and for remanding the matter, this Court has found , "............ the learned Judge has not applied his judicial mind and has disposed of the matter in a casual manner." 9. Apart from finding that the compromise is not in accordance with Order 23, Rule 3, C.P.C., while setting aside the Judgment and remanding the matter to the Trial Court for fresh disposal, this Court also directed the Trial Court " ....... to frame an issue on the queston of settlement between the parties... as one of the issues........ " and dispose of the suit. When that issue on the question of settlement between the parties is to be framed during trial, it is open to the Review Petitioner to adduce evidence as to the compromise arrived at. While so, it is not open to the Review Petitioner to seek to review the Judgment dated 1-8-2003 in A.S. No. 788 of 1997 on the ground that there is error apparent on the face of records. 10. Scope of an application for review is much more restricted than that of an appeal. While so, it is not open to the Review Petitioner to seek to review the Judgment dated 1-8-2003 in A.S. No. 788 of 1997 on the ground that there is error apparent on the face of records. 10. Scope of an application for review is much more restricted than that of an appeal. The Court of review has only a limited jurisdiction circumscribed by the definitive limits fixed by the language used in Order 47, Rule 1. It may allow a review on three specified grounds, viz., (i) discovery of new and important matter or evidence, which after the exercise of due diligence, was not within the applicant's knowledge or could not be produced by him at the time when the decree was passed or order was made; (ii) mistake or error apparent on the face of the record, or (iii) for any other sufficient reason. 11. Thus, review means an act of looking - with a view to making corrections or improvement in the Judgment. The appeal stands disposed of on merits. The conclusions were not arrived at merely on the non- availability of the petition in I.A. No. 117 of 1995. This Court has elaborately considered the legal aspect of compromise and also the maintainability of the appeal. After such careful consideration, this Court found that the compromise is not in accordance with Order 23, Rule 3, C.P.C. While so, there is no scope for re-opening the issue by entertaining the Review application. This is all the more so, when the matter is remanded back to the trial Court for fresh trial with a specific direction to the Trial Court to frame an issue on the question of settlement between the parties.The Judgment dated 1-8-2003 does not suffer from any patent error, warranting review on the material produced/I.A. Register Extract. For the reasons stated above, this Review Application is dismissed.