S. R. M. Institute R. M. Institute of Science and Technology represented by its Trustee v. B. Nemi Chand Jain
2008-12-02
K.RAVIRAJA PANDIAN, P.P.S.JANARTHANA RAJA
body2008
DigiLaw.ai
Judgment :- K. Raviraja Pandian, J. This is a review application taken out to review of the order dated 30.09.2008 made in C.M.A.(MD) No.1126 of 2008. By the said order, this Court set aside the order dated 27.06.2008 passed by the I Additional District Court, Tiruchirappalli non-suiting respondents No.1 and 2 herein, for the relief of injunction restraining the review petitioners from putting up construction pending disposal of the suit in O.S.No.82 of 2008 and directed the parties to maintain status quo. 2. Respondents 1 and 2 herein, as plaintiffs, filed O.S.No.82 of 2008 before the I Additional District Court, Tiruchirappalli, seeking for specific performance of the agreement dated 16.05.2007. The case is that respondents 1 and 2 herein entered into an agreement with respondents 3 to 5 for purchase of the property which is the subject matter of the suit, for a total consideration of Rs.6,68,38,500/- on 16.05.2007. On 17.05.2007 a sum of Rs.1,63,00,000/- and on 30.06.2007 another sum of Rs.1,00,000/- were paid as advance. The balance sale consideration was agreed to be paid on or before 31.07.2007. The agreement could not be completed within the stipulated date as respondents 3 to 5 did not clear the cloud cast upon the title of B schedule property. While that being so, on 23.01.2008 respondents 1 and 2 received caveat petitions by which they came to know that respondents 3 to 5 sold the property to the review petitioners. Respondents 3 to 5, without clearing the the title of B schedule property, sold a part of the property to the review petitioners. The review petitioners started putting up construction in the property purchased by them. On that basis, respondents 1 and 2 filed a suit for specific performance of the agreement dated 16.05.2007 and sought for injunction pending suit. 3. Respondents 3 to 5 resisted the injunction application before the trial Court on the ground that the agreement was not intended for the sale of the property. The plaintiffs, respondents 1 and 2 herein, are money lenders. Respondents 3 to 5 had money transaction with respondents 1 and 2. In order to secure the transaction, respondents 1 and 2 obtained a sale agreement on the promise to return the original sale deed on payment of loan.
The plaintiffs, respondents 1 and 2 herein, are money lenders. Respondents 3 to 5 had money transaction with respondents 1 and 2. In order to secure the transaction, respondents 1 and 2 obtained a sale agreement on the promise to return the original sale deed on payment of loan. Even in the agreement, it was agreed by respondents 1 and 2 that if there is any encumberance over the property, respondents 1 and 2 had the option to revoke the agreement and to claim the amount with compound interest at the half yearly rests at the rate of 15%. Knowing fully well that respondents 3 to 5 have no title to the B schedule property, they incorporated the same in the agreement. Thus, the agreement came into existence in the compelling reason. The original documents were never handed over to secure the loan transaction. To return the document, respondents 1 and 2 demanded Rs.8.5 crores without any basis. The transactions between respondents 3 to 5 and respondents 1 and 2 are only money transactions. A dispute arose in that regard. The suit was filed knowing fully well that the property has been sold to the review petitioners. 4. The review petitioners resisted the application as the bona fide purchasers without notice for valuable consideration under two registered documents dated 12.11.2007 and 30.11.2007. Immediately after the purchase, the review petitioners developed the property for putting up a medical research institution and hospital. After completing the works of clearing the thorny bushes, reclaiming, levelling and fencing the property the review petitioners commenced putting up construction of the hospital building and completed in the month of February 2008. There are about 25 doctors and 40 paramedical personnels working. Out patients numbering about 10 to 15 are attending every day and further the building is commenced with heavy costs and pile foundations have already been made for the purpose of having a medical institution. Respondents 1 and 2 were well aware of these factors. After the purchase and after started putting up the construction, the second respondent approached the review petitioners to mediate in getting back the amount for which the review petitioners refused. Then the suit came to be filed. 5. The trial Court, after taking into consideration the materials facts and arguments advanced, non suited respondents 1 and 2, for an injunction.
After the purchase and after started putting up the construction, the second respondent approached the review petitioners to mediate in getting back the amount for which the review petitioners refused. Then the suit came to be filed. 5. The trial Court, after taking into consideration the materials facts and arguments advanced, non suited respondents 1 and 2, for an injunction. As against that, respondents 1 and 2 filed an appeal in CMA No.1126 of 2008 before this Court, and this Court, as stated supra, set aside the order of the trial Court and directed the parties to maintain status quo till the disposal of the suit. That order is sought to be reviewed. 6. Mr.V.T.Gopalan, learned senior counsel appearing for the review petitioners and Mr.T.V.Ramanujam, learned senior counsel appearing for respondents 3 to 5, the vendors of the review petitioners, contended in one voice that in a suit for specific performance, an order of injunction, is not at all maintainable. The order sought to be reviewed was passed as if the Court was considering an application for injunction in a suit for declaration and injunction. An agreement of sale does not create any interest in the property. In a suit for specific performance, the plaitniff could get title to the suit property, only when he succeeds in the suit and obtains a sale deed. To sustain the argument, they relied on the Division Bench Judgment of this Court in the case of Krishnamoorthy Koundar v. Paramasiva Koundar, AIR 1981 MAD 310. They further contended that in a pending suit for specific performance, at the instance of the agreement holder, an injunction cannot be granted when the defendant, on whom, the legal title still vests. The legal title holder should not be restrained from using the property. Until a decree is granted, no interest of the plaintiff on the suit property should be recognized. In support of their contention, they sought the assistance of the Division Bench Judgment of this Court in T. Parameshwari v. S.S. Investments Private Ltd., (1995) 1 LW 109.
The legal title holder should not be restrained from using the property. Until a decree is granted, no interest of the plaintiff on the suit property should be recognized. In support of their contention, they sought the assistance of the Division Bench Judgment of this Court in T. Parameshwari v. S.S. Investments Private Ltd., (1995) 1 LW 109. The alleged agreement of sale, they further contended that, does not give a concluded right to seek for any enforcement, but it only gives a right to apply for and seek a specific performance, by placing reliance on the decision of the Supreme Court in the case of Agriculture Produce Market Committee-Gondal v. Girdharbhai Ramjibhai Chhaniyara, (1997) 5 SCC 468 . In a suit based on agreement of sale, the right of the plaintiff is still in embryo. Even Order 39 Rule 2 of the Code of Civil Procedure is in applicable and enforcement thereon is also unthinkable. They further contended that the transaction itself is not bona fide transaction, but a money lending one. The agreement came to be executed under duress to secure the amount as advance. The specific relief cannot be granted in favour of the money lendor. To sustain their contentions, they relied on the decision of the Supreme Court in the case of Tejram v. Patirambhau, (1997) 9 SCC 634 . 7. In order to maintain a review under section 114 CPC read with Order 41 Rule 1, CPC, they contended that the terminology "for any other sufficient reason" should be understood to have a wider meaning and any order passed under misconception of true state of circumstances has to be regarded as sufficient ground for exercising the power of review. To bring home this contention, they referred to the decision of the Supreme Court in the case of S. Nagaraj v. State of Karnataka, 1993 Supp (4) SCC 595. He further contended that justice is a virtue which transcends all barriers. Rules of procedure/technicality of law cannot stand in the way of administration of justice. Law has to bend before justice. If the Court finds that the error pointed out in the review was under a mistake and the earlier judgment would not have been passed but for erroneous assumptions which in fact did not exist and its perpetration shall result in a miscarriage of justice and nothing would preclude the court from rectifying the error.
If the Court finds that the error pointed out in the review was under a mistake and the earlier judgment would not have been passed but for erroneous assumptions which in fact did not exist and its perpetration shall result in a miscarriage of justice and nothing would preclude the court from rectifying the error. They placed reliance on a decision of the Supreme Court in the case of Lily Thomas v. Union of India, (2000) 6 SCC 224 . They further contended that the substantive Section 114 of Civil Procedure Code, did not have any limitation or condition attached to it. Only Order 47 Rule 1, contains certain contingencies as stated therein. The substantive provision prevails over the procedural provision. Even otherwise, the misconception of fact or law would come within the purview of "any other sufficent reason" contained under Order 47 Rule 1, CPC. They referred to the decision in the case of Board of Control for Cricket in India v. Netaji Cricket Club, (2005) 4 SCC 741 . They further submitted that the Court has not only power but also duty to correct the error apparent on the face of the record, by placing reliance on the decision of the Supreme Court in the case of M.M. Thomas v. State of Kerala, (2000) 1 SCC 666 . They further relied on a Full Bench judgment of the Andhra Pradesh High Court in the case of B.F. Pushpaleela Devi v. State of A.P., 2002(3) CTC 513 , so as to impress upon their argument that misconception of law would come within the purview for any other reason contained in Order 47 Rule 1. The decision of the Supreme Court in the case of Sheonandan Paswan v. State of Bihar, (1983) 4 SCC 104 is also relied on to contend that a judgment can be reopened if a manifest wrong is contained and patent mistake or grave error exists. Once a review petition is admitted, the whole of the order could be set aside if the Court comes to the conclusion that the order is manifestation of misconception of law for which proposition they relied on a decision of the Supreme Court in the case of Most Rev. P.M.A.Metropolitan v. Moram Mar Maoran Mar Marthoma, (1995) Suppl. (4) SCC 286). 8.
P.M.A.Metropolitan v. Moram Mar Maoran Mar Marthoma, (1995) Suppl. (4) SCC 286). 8. Per contra, Mr.AR.L.Sundaresan, learned Senior Counsel appearing for respondents 1 and 2 contended that the present petition is a second innings under the guise of review petition, with a different set of facts argued by different counsel. Even in the grounds of the review petition, the arguments now advanced are not taken. That would imply that by means of a review, a new case is sought to be projected for argument. The Supreme Court decision relied on in the case of S. Nagaraj v. State of Karnataka, 1993 Supp (4) SCC 595 laid down the parameters and explained the power of the Supreme Court and that cannot be equated or applied for a case by High Court. A wrong understanding of the undertaking given before the High Court was considered in the case of Board of Control for Cricket in India v. Netaji Cricket Club, (2005) 4 SCC 741 . That cannot be made applicable to the facts of the present case. The Full Bench decision of the Andhra Pradesh High Court in the case of B.F. Pushpaleela Devi v. State of A.P., 2002(3) CTC 513 is an obiter, laying down the proposition based on the facts of that particular case. The Bench decisions of this Court relied on to contend that the injunction application is not maintainable in a suit for specific performance is not correct, and cannot be taken as an absolute proposition of law, with reference to the provision Order 39 Rule 1, CPC. In the second of the cases, the injunction has been negatived on the peculiar facts of the case that the agreement was entered into without obtaining permission from the Court for sale of the property by a lunatic. He further contended that the review petition is filed as if an appeal over the judgment of the Division Bench is sought for. 9. We heard the learned counsel on either side and perused the materials available on record. 10. It is true that in Krishnamoorthy Koundars case on the similar set of facts, the Division Bench has held that admittedly, the plaintiff had not yet got the title to the properties. He could get title to the properites only if he succeeded in the suit and obtained a sale deed in respect of the property.
10. It is true that in Krishnamoorthy Koundars case on the similar set of facts, the Division Bench has held that admittedly, the plaintiff had not yet got the title to the properties. He could get title to the properites only if he succeeded in the suit and obtained a sale deed in respect of the property. It is well established that an agreement of sale does not create any interest in the property which is subject matter of the agreement. Therefore, the plaintiff, if at all can claim only an equitable right based on Section 53-A of the Transfer of Property Act. Therefore, the relief of temporary injunction claimed by the plaintiff pending the suit can be taken to have been claimed by the plaintiff only on the basis of Section 52-A of the Transfer of Property Act as mere possession of the plaintiff of the suit proeprties on the date of the suit cannot be taken to enable him to obtain injunction from the Court. If that would be the case even a trespasser in possession can approach the Court and ask for an injunction to protect his possession. The plaintiff could not seek his relief of injunction in a Court of law based on section 53-A of the Transfer of Property Act though he can use that provision to debar the transferor from claiming any right in respect of that property. The right conferred under section 53-A is a right available to the defendant to protect his possession and on the basis of that section, the defendant cannot claim any title and it very well operates as a bar to the plaintiff to ascertain his title. Though in English law, the equity of part performance is an active equity which the plaintiff in possession may enforce in an independent suit or proceeding, such as a suit for specific performance or for an injunction to restrain dispossession, such equity is not available after the amendment of Transfer of Property Act, 1929 and ultimately the Division Bench of this Court held that the plaintiff therein was not entitled to injunction sought for by him. 11.
11. It is also equally true that in the case of T. Parameshwari v. S.S. Investments Private Ltd., (1995) 1 LW 109 it was held that no one could question the jurisdiction of the Court to grant interim order, even in a suit for specific performance of a contract of sale. While applying to exercise the discretion, it would necessarily take the Court to the various provisions governing the suit for specific performance of a contract for sale of immovable property. Presence of power alone is not enough to exercise it. It is the exercise which is controlled by judicial discipline. Courts, that advices that all adjudications must conform to the rules of equity, and discretions must always be exercised within the bounds of law, and cannot merely because there is power to do a thing, do that thing. It was further held that the principle of prima facie case that the balance of convenience is in favour of the plaintiff and that there would be great hardship to the plaintiff which cannot be compensated in terms of money are the principles applied as tests to hold in favour of the plaintiff in a suit for injunction and declaration and consequential injunction, but not in a suit for specific performance of a contract for sale. 12. In the case of Agriculture Produce Market Committee-Gondal v. Girdharbhai Ramjibhai Chhaniyara, (1997) 5 SCC 468 , the appellant, agricultural marketing committee caused an advertisement inviting offer from the interested persons for allotment of shops in the new market yard. The existing shop holders were informed that if they were interested to surrender the shops in the existing market area, they would be granted shops in the new market yard. In lieu thereof, they were required to pay the value of the shops equal to 7 years’ capitalised rent. They were designated as “shop for shop category”. For others it is designated as A type shops and B type shops. For A type shops they had tentatively fixed the price at Rs2.55 lakhs and for B type shops Rs.2.33 lakhs had been fixed. The respondent before the Supreme Court filed a suit for perpetual injunction restraining the market committee from making allotment of the shops and ad interim injunction under Order XXXIX Rule 2 of the Code of Civil Procedure sought for was granted by the trial Court.
The respondent before the Supreme Court filed a suit for perpetual injunction restraining the market committee from making allotment of the shops and ad interim injunction under Order XXXIX Rule 2 of the Code of Civil Procedure sought for was granted by the trial Court. In this factual circumstances of the case, the Supreme Court in uncertain terms, has held that the respondent did not have any concluded right to seek for enforcement against the market committee. At best, they have got a right to apply for and seek allotment in respect of those who are governed by the second category, namely, A type and B type shops. Since the respondents were not having any concluded right as at present, the Court had not applied its mind to consider what would be the right which is claimed to be infringed. The apex Court further observed that the High Court has concluded in the order under appeal as if there was concluded right between the parties as Order XXXIX Rule 2 of the code of Civil Procedure postulates postulates that “in any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgment, apply to the Court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained of, or any breach of contract or injury of a like kind arising out of the same contract or relating to the same property or right”. Since the right of the respondents was still in embryo even Order 39, Rule 2 CPC is inapplicable and the enforcement thereof is also unthinkable. 13.
Since the right of the respondents was still in embryo even Order 39, Rule 2 CPC is inapplicable and the enforcement thereof is also unthinkable. 13. On the factual matrix that the agreement is an outcome of money transaction, it was argued that the decision of the apex Court in the case of Tejram v. Patirambhau, (1997) 9 SCC 634 , having regard to the fact that the document purporting to be an agreement of sale of land for a sum of Rs.50,000/-containing an endorsement that he had received Rs.48,000 and the balance was required to be paid within one year and the sale deed required to be executed was not executed for a period of three years from the date of the agreement, and the suit was filed on the laste date of limition, the Supreme Court held that the agreement was a monetary transaction and a money lender, cannot maintain a suit for specific performance of a contract. In this case, it is contended that the principles of balance of convenience, prima facie case and irreparable hardship were taken for granting the interim order by the Division Bench. The application of the said principle in a specific performance suit was contended to be regarded as error apparent on the face of the record and which caused miscarriage of justice. 14. The Supreme Court in the case of S. Nagaraj v. State of Karnataka, 1993 Supp (4) SCC 595 has held that review literally and even judicially means re-examination or re-consideration. Basic philosophy inherent in it is the universal acceptance of human fallibility. Yet in the realm of law the courts and even the statutes lean strongly in favour of finality of decision legally and properly made. Exceptions both statutorily and judicially have been carved out to correct accidental mistakes or miscarriage of justice. Even when there was no statutory provision and no rules were framed by the highest court indicating the circumstances in which it could rectify its order the courts culled out such power to avoid abuse of process or miscarriage of justice. 15.
Exceptions both statutorily and judicially have been carved out to correct accidental mistakes or miscarriage of justice. Even when there was no statutory provision and no rules were framed by the highest court indicating the circumstances in which it could rectify its order the courts culled out such power to avoid abuse of process or miscarriage of justice. 15. The Apex Court in the case of Lily Thomas v. Union of India, (2000) 6 SCC 224 , after referring to Nagarajs case cited supra, and also taking note of Order XL Rule 1 of the Supreme Court Rules, held that the power of review could be exercised for correction of a mistake but 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 like an appeal in disguise. The rule of law of following the practice of the binding nature of the larger Benches and not taking different views by the Benches of coordinated jurisdiction of equal strength has to be followed and practised. 16. The Apex Court in the case of Board of Control for Cricket in India v. Netaji Cricket Club, (2005) 4 SCC 741 , held that Order XLI Rule 1, CPC provides for filing an application for review. Such an application for review would be maintainable not only upon discovery of a new and important piece of evidence or when there exists an error apparent on the face of the record but also if the same is necessitated on account of some mistake or for any other sufficient reason. 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 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”. 17.
The words “sufficient 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”. 17. In the case of M.M. Thomas v. State of Kerala, (2000) 1 SCC 666 , it was held by the apex Court that the High Court as a Court of record, as envisaged in Article 215 of the Constitution, must have inherent powers to correct the records. A court of record envelops all such powers whose acts and proceedings are to be enrolled in a perpetual memorial and testimony. A court of record is undoubtedly a superior court which is itself competent to determine the scope of its jurisdiction. The High Court, as a court of record, has a duty to itself to keep all its records correctly and in accordance with law. Hence, if any apparent error is noticed by the High Court in respect of any orders passed by it the High Court has not only power, but a duty to correct it. 18. The Full Bench decision of Andhra Pradesh High Court in the case of B.F. Pushpaleela Devi v. State of A.P., 2002(3) CTC 513 , held that a review may be granted, whether on any ground urged at the original hearing of the suit or not, whenever the Court considers that it is necessary to correct an evident error or omission and it is immaterial how the error or omission occurred. A review may also be granted where there is an error of procedure apparent on the face of the record. The words "for any other sufficient reason must be one sufficient to the Court to which the application for review is made and they cannot be held to be limited to the discovery of new and important matter or evidence or the occurrence of a mistake or error apparent on the record. The ground of review must be something, which existed at the date of the decree, and the rule does not authorise the review of a decree, which was right when it was made, on the ground of the happening of some subsequent event.
The ground of review must be something, which existed at the date of the decree, and the rule does not authorise the review of a decree, which was right when it was made, on the ground of the happening of some subsequent event. Further, it is a condition precedent that no superior court should have been moved for selfsame relief before filing a review petition. The error must be one which strikes one on merely looking at the record and which would not require any long drawn process of reasoning on a point where there may conceivably be two opinions. An applicant seeking for review cannot raise a ground not taken in the original proceedings. Review cannot be sought to supplement the evidence or to introduce new evidence. 19. In Sheonandan Paswan v. State of Bihar, (1983) 4 SCC 104 , the judgment of the Apex Court in Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi, (1980) 2 SCC 167 , was relied on by extracting the following portion of the order : “It is well settled that a party is not entitled to seek a review of a judgment delivered by this Court merely for the purpose of a rehearing and a fresh decision of the case. The normal principle is that a judgment pronounced by the Court is final, and departure from that principle is justified only when circumstances of a substantial and compelling character make it necessary to do so: Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845 . For instance, if the attention of the Court is not drawn to a material statutory provision during the original hearing, the Court will review its judgment: Girdhari Lal Gupta v.D.N. Mehta, (1971) 3 SCC 189 . The Court may also reopen its judgment if a manifest wrong has been done and it is necessary to pass an order to do full and effective justice: O.N. Mahindroo v. District Judge, Delhi (1971) 3 SCC 5 . Power to review its judgments has been conferred on the Supreme Court by Article 137 of the Constitution, and that power is subject to the provisions of any law made by Parliament or the rules made under Article 145.
Power to review its judgments has been conferred on the Supreme Court by Article 137 of the Constitution, and that power is subject to the provisions of any law made by Parliament or the rules made under Article 145. In a civil proceeding, an application for review is entertained only on a ground mentioned in Order 47 Rule 1 of the Code of Civil Procedure, and in a criminal proceeding on the ground of an error apparent on the face of the record (Order XL Rule 1, Supreme Court Rules, 1966). But whatever the nature of the proceeding, it is beyond dispute that a review proceeding cannot be equated with the original hearing of the case, and the finality of the judgment delivered by the court will not be reconsidered except “where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility”. Sow Chandra Kanta v. Sheikh Habib, (1975) 1 SCC 674 ”. 20. In Most Rev. P.M.A.Metropolitan v. Moram Mar Maoran Mar Marthoma, (1995) Suppl. (4) SCC 286), the question that arose for the consideration of the Supreme Court was as to whether, after admission of the review application, the Court can hear the review application on any other point in addition to which notice was issued. The Court held in affirmative by observing as under : The effect in law of this order, on review, was that the finding recorded by the High Court on the authenticity of the canon etc. in its original order ceased to be operative. But the learned counsel for the appellant vehemently urged that since the Bench which admitted the review petition had restricted its scope and made it subject to the findings recorded on the authenticity of the canon and the power of the Patriarch to excommunicate without any intervention by the Synod, the findings recorded on these aspects were not destroyed in consequence of the order passed on the review petition. The submission does not appear to be correct either legally or factually.
The submission does not appear to be correct either legally or factually. When a review petition is entertained and notice is issued by a court it is open to it to restrict the scope of hearing but once the petition is heard and the court is satisfied that the order under review was erroneous at the face of it then it is not precluded from allowing the petition and setting aside the findings which were earlier not permitted to be reopened. After the review petition was admitted and the Catholicos were restricted from reopening other points, an application was filed on their behalf which was rejected but while rejecting the application it was observed “if it is found that any of these questions is so legally connected with the question relating to natural justice that the latter questions cannot be properly dealt with without considering such excluded questions then for this purpose and for this purpose alone the excluded questions may be considered”. This observation of Chatfield, J. was concurred by other Judges also." The above referred to judgments succinctly indicate as to when and under what circumstances a review petition can be entertained by this Court with reference to Order 47 Rule 1, CPC. 21. In this case the question is in a suit for specific performance, on the basis of an agreement of sale, the genuineness of which is yet to be decided by means of a trial by a Court, whether an injunction at the instance of the party who is not even in possession can be granted based on the principle of prima facie case, balance of convenience and irreparable hardship. The question is a legal question which might be very valid ground for filing an appeal. To put it in other words, the order sought to be reviewed might be on the above said principle, a wrong order, which requires reconsideration. Whether the said point could be regarded as a ground for reviewing the earlier order of the co-ordinate Bench? 22. On the facts of this case, we are not able to accept the basic contention that the order sought to be reviewed is a misconception of law, as it was rendered against the principles laid down in the judgments in the cases of Krishnamoorthy Koundar v. Paramasiva Koundar AIR 1981 Mad 310 and T. Parameshwari v. S.S. Investments Private Ltd., (1995) 1 LW 109.
23. A Division Bench of this Court in the case of Vijay Lalchand HUF v. K.M. Lulls HUF, 1995 (1) CTC 556 , has referred to the decisions in the cases of Krishnamoorthy Koundar v. Paramasiva Koundar AIR 1981 Mad 310 and T. Parameshwari v. S.S. Investments Private Ltd., (1995) 1 LW 109, and observed that the view that the two judgments have laid down the law that in case of a suit for specific performance of an oral agreement, the plaintiff is not entitled to get any interim relief on the basis of the alleged possession as the plaintiffs have to prove possession only at the trial and further that the right under section 53-A of the Transfer of Property Act can be only used as a shield and not as a sword and therefore a person relying on that section can get relief only as defendant and not as a plaintiff. We are unable to accept the view taken by the learned Judge as regards the proposition laid down in the two judgments. In fact, the observations contained in the judgments are really obiter. When there are two different views, one view, however strong it might be, cannot be a ground to impress this Court to review the order of the co-ordinate Bench. 24. This Division Bench had an occasion to consider the scope of exercising the review power in the case of K.Alliammal v. The Special Tahsildar, Adi Dravida Welfare Department, Tirupattur, Vellore District, 2008 (2) LW 156 , wherein this Court held that power of review may be exercised on the discovery of new and important matter or evidence which, after exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. Power of review is not to be confused with appellate powers, which may enable an appellate Court to correct all manners of errors committed by the subordinate Court or crept in the judgment and decree which is appealed against.
Power of review is not to be confused with appellate powers, which may enable an appellate Court to correct all manners of errors committed by the subordinate Court or crept in the judgment and decree which is appealed against. This Court, for so holding, relied on the decisions in the cases of Parsion Devi v. Sumitra Devi, (1997) 8 SCC 715 ; Kerala Seb v. Hitech Electrothermics & Hydropower Limited, (2005) 6 SCC 651 ; and Haridas Das v. Usharani and Bannik, AIR 2006 SCW 1771 and finally observed that, "Uniform principle that runs through the catena of decisions is that "a mistake apparent on record" must be an obvious and apparent mistake and not something, which can be established by a long drawn process of reasoning on points on which there may conceivably be two opinions. An error which is not self evident and is to be deducted by process of reasoning can hardly be said to be an error apparent on the face of the record. 25. For the reasons stated in the foregoing paragraphs and in the light of the decisions referred to above, we are afraid, we cannot invoke the power of review in the facts and circumstances of this case. The review petition is rejected. No costs. 26. As we have held that the review is impermissible in law, having regard to the nature of the suit filed and the submissions made by the counsel that the construction of the hospital has been seiged temporarily by the order of this Court by directing the parties to maintain status quo, we direct the trial Court to strictly follow the directions given in the order sought to be reviewed, to take up the case on day to day basis and complete the same on or before 31.01.2009. The parties are also directed to co-operate with the trial Court to complete the proceedings within the time limit prescribed.