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2009 DIGILAW 2687 (MAD)

P. Paranthaman v. Munirathinam

2009-07-27

V.PERIYA KARUPPIAH

body2009
Judgment :- This revision has been filed by the petitioner, who was the defendant before the lower Court, against the order passed by the lower Court in an unnumbered Interlocutory Application filed in O.S.No.210 of 2004 for reviewing the judgment passed by the lower Court in the suit on 29.02.2008. 2. Heard Mr.S.J.Jagadev, the learned counsel for the petitioner. No appearance for the respondent. 3. The learned counsel for the petitioner would submit in his argument that the suit was filed by the respondent against the petitioner for the recovery of a sum of Rs.86,000/-, and for subsequent interest and cost and that the petitioner, as defendant, had raised certain specific pleas that he was entitled to the benefit of the provisions of Tamil Nadu Prohibition of Charging of Exorbitant Interest Act, 2003, and the said plea of the petitioner was not considered by the lower Court and that no argument was advanced by the petitioner/defendant as he was away due to his mother-in-laws serious illness and the advocates were on strike on that day and on those reasons, he wanted to bring certain material mistakes committed by the lower Court by the way of the review application filed by him. The lower Court did not hear any arguments in open Court and had passed an order in its chamber itself but, it was stated to have been disposed in open Court, which is not correct. Therefore, the lower Court had committed serious error in disposing the review application and had not considered the principles laid down by our Honourable Apex Court reported in AIR 2005 SC 592 between (Board of Control for Cricket, India Vs. Netajio Cricket Club). The learned counsel for the petitioner would request the Court to allow the revision application and thereby necessary amendment shall be ordered as prayed for in the review application. 4. Considering the arguments made by the learned counsel for the petitioner and after going through the records, this Court could see that the review application filed by the petitioner was not assigned with any number and the lower Court had disposed of the said application on 28.07.2008. 4. Considering the arguments made by the learned counsel for the petitioner and after going through the records, this Court could see that the review application filed by the petitioner was not assigned with any number and the lower Court had disposed of the said application on 28.07.2008. According to the submissions made by the learned counsel for the petitioner, the revision petitioner was not given any opportunity to address the lower Court about the scope of the application and the lower Court had without hearing the petitioner disposed the same without considering the merits. As per the judgment of our Honourable Apex Court cited by the learned counsel for the revision petitioner reported in AIR 2005 SC 592 between (Board of Control for Cricket, India Vs. Netajio Cricket Club) the review application can be maintained even on account of misconception of law by Court or by the advocate. The relevant passage in the said judgment would run as follows:- "Section 114 of the Code empowers a Court to review its 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 in terms whereof it is empowered to make such order as it thinks fit. Order 47, Rule 1 of the Code 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 therefore. 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 is 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”. The words sufficient reason in Order 47 Rule 1 of the Code is 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”. On a careful perusal of the aforesaid judgment of our Honourable Apex Court it is thus clear that no man can be prejudiced by the act of the Court. Moreover, the scope of the review is wider even in respect of misconception of law or fact by the Court or advocate. In view of the submissions made by the learned counsel for the petitioner that he was not heard before passing of order in the review application, it has become necessary for this Court to interfere with the order passed by the lower Court by giving direction to the lower Court. Accordingly, the lower Court is directed to number the review application on its file and to issue notice to the other side and to hear both sides and thereafter, to pass order on merits bearing in mind the principles laid down by our Honourable Apex Court in AIR 2005 SC 592 between (Board of Control for Cricket, India Vs. Netajio Cricket Club). With the aforesaid direction, the revision petition is allowed and the matter is remanded back to the lower Court. Connected Miscellaneous Petition is closed. No costs.