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2008 DIGILAW 455 (KER)

Muthulangayil Kunhabdulla v. E. K. Prakasan

2008-07-30

M.SASIDHARAN NAMBIAR

body2008
Judgment : This petition is filed under Order XLVII Rule 1 of Code of Civil Procedure to review the judgment dated 6.2008 in W.P(C) 10822/2008. That Writ Petition was filed challenging the dismissal of an application filed under Rule 5 of Order XXXVIII of Code of Civil Procedure in O.S.71/2007 on the file of Sub Court, Koyilandy. Respondents instituted the suit for specific performance of an oral agreement for sale with an alternate prayer for return of the advance amount of Rs.20,05,001 with interest at 12% per annum. Writ Petition was disposed quashing the order passed by the trial court and directing petitioner defendant to furnish a security of Rs.98,40,000/- before the trial court within one month from that date, providing that on failure to furnish security, there would be an order of attachment. A conditional order of attachment was also passed which would be in force till the security is furnished. The said order was passed, as is clear from paragraph 2 of the judgment, solely based on the submission of the learned senior counsel who was then appearing for the petitioner. The relevant portion of the judgment reads:- "Learned senior counsel submitted that respondent has no objection to pass an order of attachment of the property as sought for in IA 1732 of 2007, on the failure to furnish security." It is on that submission alone the judgment was passed directing petitioner to furnish security. This petition is filed under Order XLVII Rule 1 to review that judgment contending that what was represented by the petitioner to his counsel was only that petitioner has no objection in passing an order of attachment for the money claimed in the suit, eventhough he disputed the receipt of the amount alleged in the plaint. It is the case of the petitioner that only after getting the judgment petitioner realised that he has to furnish security for Rs.98,40,000/-which is the market value of the property shown in the plaint. Petitioner owns up his failure to make himself clear to the senior counsel which caused a submission that there could be an order to furnish security for Rs.98,40,000/-. Petitioner owns up his failure to make himself clear to the senior counsel which caused a submission that there could be an order to furnish security for Rs.98,40,000/-. It is on the ground that petitioner could not successfully make himself properly understood by his counsel and as a result the judgment was pronounced, the petition for review was filed contending that when the money claim in the suit is only for Rs.20,05,001, security is to be furnished only for that amount. The petition was filed through another counsel and is argued by another senior counsel. 2. Learned senior counsel appearing for the petitioner and the learned senior counsel appearing for respondent were heard. 3. The argument of the learned senior counsel Mr. Krishnanunni for the petitioner is that petitioner did not allege anything against his counsel and only contended that he could not properly make himself clear to the counsel and as a result a judgment happened to be passed which is sought to be reviewed. It was argued that the security to be furnished is only for the amount claimed from the petitioner in the suit and as per the alternate relief decree for Rs.20,05,001/-alone was claimed and therefore security that is to be furnished can only be for that amount and not the market value of the property and therefore the judgment warrants review. 4. Learned senior counsel Mr.Chithambaresh appearing for respondent opposed the application on three grounds. Firstly it was argued that an application for review by another counsel is not maintainable as it is a deprecated practice. Reliance was placed on the decision of the Apex Court in (Parsion Devi v. Sumitri Devi (1997) 8 SCC 715) (Tamil Nadu Electricity Board v. N.Raju Reddiar (1997) 9 SCC 736) and (Mohan Lal Bagla v. Board of Revenue, Lucknow (AIR 2005 Allahabad 308). Secondly it was argued that the ground alleged is not a sufficient ground to order review. Relying on the decision in Parsion Devis case (supra), it was argued that a review is possible only if there is a mistake or error is apparent on the face of the record and there is a clear distinction between an erroneous decision and an error apparent on the face of the record and what is set out is, if at all, only an erroneous decision and therefore it cannot be reviewed. Finally relying on the decision of the Apex Court in BSNL and Others v. Subash Chandra Kanchan and another (2006) 8 SCC 279) it was argued that under Order III Rule 1 of Code of Civil Procedure a counsel is authorised to make concession on behalf of the client and even if that is a wrong concession, unless it is on a question of law it cannot be a ground for review. 5. Apex Court in Raju Reddiars case (supra) deprecated the practice of filing review petition by another counsel. It was held that the review petition was filed in that case by another counsel, who neither argued the appeal nor was present at the time of arguments and it is unknown on what basis he has written the grounds in the review petition as if it is a rehearing of an appeal against the order and review petitioner did not confine to the scope of review. It was also held that the counsel did not produce a no objection certificate from the previous counsel and attempt is to reargue the matter. Their Lordships on the facts and circumstances of that case held:- "This practice of changing the advocates and filing repeated petitions should be deprecated with a heavy hand for purity of administration of law and salutary and healthy practice." That petition was dismissed with exemplary costs finding that it is an abuse of process of court in derogation of healthy practice. 6. Allahabad High Court in Mohanlal Baglas case (supra) following the said decision held that it is not proper for a new counsel to move a review petition as he will not be aware of the arguments advanced by the counsel who appeared for the party to the concession made by the court and in such circumstance the review petition filed by the another counsel is not maintainable. 7. The argument of senior counsel for respondent is that in view of this decision, the review petition is to be dismissed without entering on merits. 8. True, the practice of filing a review petition by another lawyer challenging what transpired in the court or even a concession made by that counsel to the court by another counsel is to be strongly deprecated. 8. True, the practice of filing a review petition by another lawyer challenging what transpired in the court or even a concession made by that counsel to the court by another counsel is to be strongly deprecated. But on the facts of this case, I do not find that for the reason that review petition was moved by another counsel alone the petition is to be dismissed without considering the merit of the petition. As distinct from the facts considered by the Apex Court in Tamilnadu Electricity Board v. Raju Readdiar (supra), the counsel who filed the review petition has also produced a no objection certificate from the previous counsel. He is also not disputing the earlier admission or concession made by the previous counsel to the court. He is only seeking correction of the earlier admission and that too without blaming the previous counsel. 9. As seenfrom the judgment the order of the trial court was quashed and petitioner was directed to furnish security solely based on the submission made by the then senior counsel appearing for the petitioner. What was submitted by the senior counsel was that party has no objection for passing an order to furnish security and on failure order of attachment sought for in the application before the court below. True, as per the application security to be furnished is Rs.98,40,000/-. But it cannot be said that for that concession, this court has to direct the party to furnish security for whatever amount stated in the petition without considering what is the quantum of security to be furnished on the basis of the pleading. 10. As rightly pointed out by the learned senior counsel appearing for the petitioner, suit is for specific performance of an oral agreement for sale. A decree for realisation of the advance amount paid was claimed only alternatively. Case of the respondent was that Rs.20,05,001/- was paid as advance amount. The alternate prayer is for return of that advance amount with interest. Therefore legally security is to be furnished for the money portion of the decree claimed and not for the market value of the property agreed to be sold. It is clear that while directing the petitioner to furnish security for Rs.98,40,000/- this aspect was not taken into consideration by this court. 11. Therefore legally security is to be furnished for the money portion of the decree claimed and not for the market value of the property agreed to be sold. It is clear that while directing the petitioner to furnish security for Rs.98,40,000/- this aspect was not taken into consideration by this court. 11. Though learned senior counsel appearing for respondent is correct in submitting that except in rare cases where error of law is apparent on the record no review petition can be filed and under Rule 1 of Order III of Code of Civil Procedure a counsel representing a party can make concession to the court and it is binding on the party except in cases where it is on a question of law and apparent error is not the same as an erroneous decision, facts of the case are different. Facts and circumstances of the case establish that this court passed a direction to furnish security without applying the mind on the quantum of the security. When the money claim in the suit was only for Rs.20,05,001/- security to be furnished could only be for that amount with interest and cost. As this court directed the petitioner to furnish security for more than three times of that amount, it is the duty of this court to correct the same. After all procedures are only handmade of justice. Therefore in the interest of justice, judgment dated 6.2008 is reviewed to the extent of modifying the quantum of security to be furnished. Instead of Rs.98,40,000/- petitioner to furnish security for Rs.30 lakhs. Review Petition is allowed accordingly.