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2011 DIGILAW 1915 (MAD)

S. P. Balakrishnan v. Collector of Chengelpet

2011-04-05

V.PERIYA KARUPPIAH

body2011
Judgment :- 1. Review Application No.19 of 2007: This application has been filed by the 1st respondent in the appeal seeking to review the judgment passed in the appeal in A.S.No.57 of 1996 on 07.09.2006 and thereby to restore the judgment and decree dated 23.09.1993 in O.S.No.49 of 1988 on the file of the trial court. M.P.No.1 of 2007: This is an application seeking interim injunction against the 1st respondent from in anyway interfering with the possession and enjoyment of the suit property which is the subject matter of the suit in O.S.No.49 of 1988 on the file of Subordinate Judge, Poonamallee. M.P.No.1 of 2008: This application has been filed by the petitioner under Order XLI Rule 27 read with Section 151 CPC to receive the sale deed dated 27.02.1936 executed by Manali Saravana Mudaliar, in favour of Manali Srinivasa Mudaliar and registered as document No.494/36 in the office of the Registrar, Madras, Chingelput District as additional evidence in Review Application No.19 of 2007. 2. The gist of the petitioner's case would be as follows: The petitioner in review application is the 1st respondent in the appeal and he filed the suit on the file of District Munsif, Poonamallee in O.S.No.1335 of 1982 for permanent injunction in respect of the suit property and thereafter he has filed an application in I.A.No.2939 of 1986 to amend the prayer and thereby he has asked for declaration of his title and consequently injunction in the suit and the said application was allowed and thereafter the plaint was amended and returned. Then it was represented before the appropriate court namely the Sub court, Poonamallee and it was taken on file in O.S.No.49 of 1988 and the said suit was decreed on 23.09.1993. It was challenged in the appeal in A.S.No.57 of 1996 before this court and the said appeal was allowed by this Court by judgment and decree dated 07.09.2006. In the said judgment it has been pointed out that the said suit was already disposed of in between the parties in O.S.No.1335 of 1982 and the same was disposed of against the petitioner and the decision reached in the said suit was a bar to the claim of the petitioner in the present suit and accordingly this court had come to the conclusion of allowing the said appeal. However, this court has relied upon the non production of a settlement deed alleged to have been executed in the year 1936 and the decision was rendered on the misconception of facts. Actually the said suit in O.S.No.1335 of 1982 which was dismissed by the District Munsif, Poonamallee was represented and thereafter, it was returned and represented before the Sub Court and numbered as O.S.No.49 of 1988 and the same was dismissed by the Sub Court. Against which the present appeal was preferred. Therefore, this court had grossly misconceived the facts and had come to a conclusion of res-judicata and therefore, the judgment and decree passed by this court has to be reviewed. It is also stated that the settlement deed, which is of the year 1936 under which Saravana Mudaliar was stated to have settled his half share in the properties in favour of Srinivasa Mudaliar, was not filed in court and this court had laid its decision against the petitioner. However, on search in the Registrar's office in respect of the settlement deed dated 27.02.1936, the petitioner could find a sale deed executed by Saravana Mudaliar in favour of Srinivasa Mudaliar on 27.02.1936 and the missing link proving the title of the petitioner would be established and this document should have been considered in the review as well as in the appeal so as to reach a correct conclusion and therefore, the said document has to be received as additional evidence. It is also stated that the mistake committed by this court while arriving at the judgment may be corrected by itself and the applications filed by the petitioner for reviewing the judgment and decree and for ordering the reception of additional evidence may be ordered. 2(a)The contentions raised by the 1st respondent would be as follows: The reasons submitted by the petitioner for reviewing the judgment and decree passed by this court on 07.09.2006 is not sustainable because this court had considered and held that the suit was not maintainable under the principle of res-judicata under Section 11 of CPC. This court had also discussed the evidence in detail and appreciated the contention of the appellant that the property is a 'Chatharam Poramboke' and it does not belong to the petitioner and it had correctly come to the conclusion in the judgment passed in the appeal. This court had also discussed the evidence in detail and appreciated the contention of the appellant that the property is a 'Chatharam Poramboke' and it does not belong to the petitioner and it had correctly come to the conclusion in the judgment passed in the appeal. The reasons put forth by the petitioner would not be sufficient for attracting the provisions of Section 114 and Order 47 CPC. The pleading of the petitioner was to the effect that a settlement was executed in the year 1936 and the said plea cannot be substantiated by way of producing the sale deed as if it were not found then and, hence it could be produced as evidence in the suit and in the appeal. The pendency of review will not amount to pendency of the appeal because in review, the court has to see as to whether there was any patent mistake or error committed by the court as rectifiable or the judgment already passed by the court is reversible. A new ground has now been raised that it was not a settlement deed but it was a sale deed of the year 1936 which is not maintainable. The document which was not pleaded cannot be entertained by virtue of the presumption under Section 90 of the Evidence Act. The suit property was classified as 'Chathram Poramboke' and it was held for very long time and Government records would also go to show that they are 'Chathram Poramboke' land and the allegations made contrary are not sustainable. The review application has been filed in order to prolong and protract the case. 2(b)The document sought to be produced as additional evidence cannot be received in the review application since it is not an appeal. The application pending is only a review and this court has to go through as to any mistake has been committed by the court as to the facts on law and not in respect of any laches or mistake committed by the petitioner. He would also submit that the 2nd respondent C.P.Mary is in collusion with the petitioner and she had filed a writ petition seeking for a direction against the Government as if she had filed the suit in O.S.No.49 of 1988 before the Sub Court, Poonamallee and was decreed in her favour. He would also submit that the 2nd respondent C.P.Mary is in collusion with the petitioner and she had filed a writ petition seeking for a direction against the Government as if she had filed the suit in O.S.No.49 of 1988 before the Sub Court, Poonamallee and was decreed in her favour. Unless there is a collusion, she would not say about the filing of the suit which was actually filed by the petitioner herein. Therefore, the petitioner has not come with clean hands. Therefore all the applications are not maintainable and they are liable to be dismissed. 3. Heard Mr. AR.L. Sundaresan, learned Senior Counsel for the petitioner and Mr.V. Ravi, learned Special Government Pleader (AS) for the 1st respondent. 4. Learned Senior Counsel would submit in his argument that it is a peculiar case in which this court has committed a mistake and it has laid its finding on the foot of res-judicata thinking that already a suit has been disposed in between parties in O.S.No.1335 of 1982 at the District Munsif Court, Poonamallee and had found that the present suit filed by the petitioner could not be maintained and thus the appeal preferred by the appellant/1st defendant was allowed. He would further submit that since it is purely a mistake of fact which led to the legal finding that the suit was barred by res-judicata, this court could correct the said mistake by reviewing its judgment. He would further submit that the suit in O.S.No.1335 of 1982 which was said to have been dismissed by District Munsif, Poonamallee was actually ordered to have been amended and such amendment of declaration prayer the pecuniary jurisdiction was found to be enhanced and therefore, it was returned for being presented before appropriate court and accordingly it was represented before Sub Judge Poonamallee and it was numbered as O.S.No.49 of 1988 and was decreed, against which the present appeal has been laid. Therefore, the suit considered to be the former suit and the suit against which the prayer has been preferred are one and the same. Therefore, he would stress the Court that the mistake committed by the Court is patent and therefore review has to be ordered. Therefore, the suit considered to be the former suit and the suit against which the prayer has been preferred are one and the same. Therefore, he would stress the Court that the mistake committed by the Court is patent and therefore review has to be ordered. He would further submit in his argument that he has also produced the document of the year 1936 namely the sale deed dated 27.02.1936 executed by Saravana Mudaliar in favour of Srinivasa Mudaliar which comprises his half share of the suit property and therefore the missing link has been united and therefore the plaintiff's case has been established. He would also submit that the said document was aged more than 74 years and the presumption under Section 90 of Evidence Act would apply and therefore, there is no impediment for this court to receive the additional evidence and to decide the said fact also. He would draw the attention of the Court to a judgment of Hon'ble Apex Court reported in (2005) SCC 741 (BCCI VS. NETAJI CRICKET CLUB) for the proposition when new and important piece of evidence or an error apparent in the judgment would warrant a review. Therefore, the application for additional evidence in M.P.No.1 of 2008 has also to be allowed along with review application and the appeal may straightaway be dismissed confirming the judgment and decree of the lower court or the judgment or the decree passed by this court on 07.09.2006 may be set aside in the review and the appeal be posted for fresh hearing in between parties. 5. Learned Special Government Pleader (AS) would submit in his argument that the review application is not sustainable in law as it is not satisfying the requirements of Section 114 of CPC or Order 47 Rule 1 CPC because this court did not commit any mistake as alleged by the petitioner. He would further submit that this court had elaborately discussed the evidence before the trial court and had come to the conclusion that the plaintiff did not prove his title to the suit property but had decided that the suit property was a 'Chathram Poramboke' belonging to Government and allowed the appeal. He would further submit that this court had elaborately discussed the evidence before the trial court and had come to the conclusion that the plaintiff did not prove his title to the suit property but had decided that the suit property was a 'Chathram Poramboke' belonging to Government and allowed the appeal. He would also submit that this court did not discuss the point of res-judicata in the course of its finding and even it was considered to have discussed and erred in finding that the suit is barred by res-judicata, the judgment need not be reviewed since the evidence adduced on both sides were appreciated and it was found by this court that the petitioner/plaintiff did not establish his case. He would also submit that when there was no mistake committed by the court, there is no reason for reviewing the judgment and the decree passed by the court. He would also submit that the documents sought to be produced as additional evidence in the review application is not at all sustainable since there is no plea put forth by the petitioner in his plaint that by virtue of the sale deed dated 27.02.1936, his predecessor in title obtained right over the said property. He would also submit that even otherwise if the document is relevant, it should have been produced by the petitioner at the appellate stage and not in the review after the judgment has been pronounced. He would also submit in his argument that the evidence of P.W.1 would go to show that he did not know about the whereabouts of the 2nd defendant, but the 2nd defendant filed a Writ Petition in W.P.No.14777 of 2007 as if she had filed the suit in O.S.No.49 of 1988 on the file of Sub court, Poonamallee and was decreed in her favour. When this conduct of the 2nd defendant is considered with the evidence of the P.W.1, it would establish a collusion in between them to knock away the Government property as theirs. He would also submit that the reception of additional evidence would only lie in the first appeal and this being the review of the judgment would not entail the petitioner to file additional evidence even if they are required for disposal of the case. He would also submit that the reception of additional evidence would only lie in the first appeal and this being the review of the judgment would not entail the petitioner to file additional evidence even if they are required for disposal of the case. He would also bring it to the notice of this court a judgment of this court reported in 1999 (I) CTC 30 in between "The Managing Director, Hindustan Photo Films Co. Ltd, Indu Nagar, Ootacamund and others vs. H.B. Vinoba and others" and a judgment of Hon'ble Apex court reported in (2008) 11 SCC 107 in between "T. Thimmaiah (dead) by LRs. vs. Venkatachala Raju (dead) by Lrs." for the principle that the same facts which were considered by the single judge while passing the judgment and decree need not be re-examined to come to a different conclusion in the review. Therefore, he would request the court to dismiss the applications filed by the petitioner. 6. I have given anxious thoughts to the arguments advanced on either side. 7. The present Review Application has been filed by the petitioner who is none other than the 1st respondent in the appeal and the plaintiff in the suit. The suit filed by him for declaration of his title and for permanent injunction against the Government (the 1st defendant) was decreed in favour of the 2nd defendant, against which the 1st defendant Government has preferred an appeal arraying the plaintiff as 1st respondent and the 2nd defendant as 2nd respondent. In the said appeal, arguments were heard by this court and the judgment and decree was passed on 07.09.2006 allowing the appeal by setting aside the judgment and decree passed by the trial court in favour of the plaintiff. Now, it is alleged by the petitioner herein that this court has committed a patent error to reach such a decision by holding that earlier suit filed between parties were dismissed as against the petitioner / plaintiff and therefore, it was a bar under the doctrine of res-judicata and on that basis the appeal was allowed. It was also wrongly quoted that the judgment passed in that suit was considered a bar for deciding this suit. It was also wrongly quoted that the judgment passed in that suit was considered a bar for deciding this suit. He would also submit that the earlier suit and the present suit which was pending before District Munsif court, Poonamallee in O.S.No.1335 of 1982 are one and the same and the said point has to be considered. 8. There is no dispute that the suit was originally filed by the petitioner in O.S.No.1335 of 1982 before District Munsif court, Poonamallee and in the said suit amendment was ordered and carried out for adding the prayer for declaration of title. Therefore the value of the suit was raised consequently and the suit was returned by the said court for being presented before the appropriate court namely Sub court, Poonamallee and accordingly the said returned plaint was represented before the Sub court, Poonamallee and was numbered as O.S.No.49 of 1988 and it was disposed of and against the judgment and decree passed thereon, the present appeal has been preferred. (It was not denied by the 1st respondent that on the basis of the ex-parte dismissal of O.S.No.1335 of 1982 this Court had come to the conclusion regarding the point of res-judicata, it would be a patent mistake. According to the submission of the learned Special Government pleader (AS), this court did not base its decision on the plea of res-judicata, but it had appraised the evidence adduced by both sides in the suit and had come to the conclusion. On a careful perusal of the judgment passed by this court, I could see that there was no point framed on res-judicata for rendering a finding. If we go through the discussion of the single Judge in his judgment on the point of res-judicata, there was a specific discussion and finding regarding the res-judicata along with other points. 9. On a careful perusal of the judgment passed by this court, I could see that there was no point framed on res-judicata for rendering a finding. If we go through the discussion of the single Judge in his judgment on the point of res-judicata, there was a specific discussion and finding regarding the res-judicata along with other points. 9. However, it has been pointed out that this court while tracing with the title of the petitioner/plaintiff had pointed out that the settlement deed dated 27.02.1936 has not been produced and therefore the title of predecessor of the plaintiff was not established and the said discussion was nothing but a mistake to which the petitioner was not able to produce any document to show that the predecessor-in-title of the petitioner was given right over the half of the property by way of sale deed dated 27.02.1936 by Saravana Mudaliar in favour of Srinivasa Mudaliar, the predecessor in title and therefore, the said mistake committed by the petitioner was also loomed large to commit a mistake by this court and therefore, the said document traced now by the petitioner may be received as additional evidence in the review and consequently in the appeal. The non production of the said sale deed dated 27.02.1936 during the pendency of the appeal was purely due to the mistake of the petitioner. Admittedly, no pleading to the effect was made by the petitioner in the plaint. On the other hand, it was spoken to as a settlement deed but actually the present case of the petitioner is that a sale deed. The judgments cited by the learned Government pleader (AS) reported in (2008) 11 SCC 107 in between "T.Thimmaiah (dead) by LRs. vs. Venkatachala Raju (dead) by LRs." would be as follows: "2. During the course of hearing, the learned counsel for the appellant has pointed out that a bare perusal of the order in review would reveal that it is based on a complete reappreciation of the matter on facts and the provisions of Order 47 Rule 1 of the Code of Civil Procedure which would govern an application for review, have been completely ignored. It has been submitted by the counsel that the Single Judge ad, in the first judgment, examined the facts and dismissed the appeal and on a reconsideration of the same facts, had allowed the same, which was not justified. It has been submitted by the counsel that the Single Judge ad, in the first judgment, examined the facts and dismissed the appeal and on a reconsideration of the same facts, had allowed the same, which was not justified. We find merit in this plea. From a bare perusal of the judgment in review, it is clear that the principles laid down under Order 47 Rule 1 CPC have been completely ignored. We accordingly allow the appeal, set aside the order in review dated 26.02.2001 and dismiss the appeal in the suit. We however, give liberty to the respondent herein to challenge the judgment dated 16.02.1999, if so advised." 10. Similarly the judgment of this court reported in " 1999 (1) CTC 30 in between "The Managing Director, Hindustan Photo Films Co. Ltd, Indu Nagar, Ootacamund and others vs. H.B.Vinoba and others" would be as follows: "12..... As observed by the Supreme court, in the above referred cases, it may not be exercised on the ground that the decision was erroneous on merits, that would be the province of Court of Appeal and the same cannot be a ground for review. I have already demonstrated that the very same objections were raised and considered on the face of information furnished by both sides while disposing of the writ petitions. The review proceedings are not by way of appeal and have to be strictly confined to the scope and ambit of Order 47, rule 1 C.P.C." 11. On a careful understanding of the aforesaid judgments of this court and Hon'ble Apex court, it could be understood that in a review application the provisions of Order 47 Rule 1 CPC have been applied for and there could not be any reappraisal of the evidence which are discussed in the judgment could be re-appraised for coming to a different conclusion. 12. In the judgment reported in (2005) SCC 741 (BCCI VS. NETAJI CRICKET CLUB), it has been held as follows:- "89. 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. 90. 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. 90. 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". 13. Similarly, in yet another judgment of Hon'ble Apex Court reported in " 2009 (14) SCC 663 in between Inderchand Jain (Dead) Through LRs v. Motilal (Dead) Through Lrs", the five points have been enunciated for approaching a review application. The relevant passage would be as follows: "33. The High Court had rightly noticed the review jurisdiction of the Court, which is as under: The law on the subject-exercise of power of review as propounded by the Apex Court and various other High Courts may be summarised as hereunder: (i) Review proceedings are not by way of appeal and have to be strictly confined to the scope an ambit of Order 47 Rule 1 CPC. (ii) Power of review may be exercised when some mistake or error apparent on the fact of record is found. But error on the face of record must be such an error which must strike on mere looking at the record and would not require any long-drawn process of reasoning on the points where there may conceivably be two opinions. (iii) Power of review may not be exercised on the ground that the decision was erroneous on merits. (iv) Power of review can also be exercised for any sufficient reason which is wide enough to include a misconception of fact or law by a Court or even an advocate. (v) An application for review may be necessitated by way of invoking the doctrine actus curiae neminem gravabit." 14. (iv) Power of review can also be exercised for any sufficient reason which is wide enough to include a misconception of fact or law by a Court or even an advocate. (v) An application for review may be necessitated by way of invoking the doctrine actus curiae neminem gravabit." 14. According to the aforesaid judgments if new facts are found or on discovery of an important piece of evidence or when there exists an error on the face of the record, a review is maintainable. Mistake committed by the Court also to be considered, since no man can be prejudiced by the act of the Court. 15. No doubt, it is true that this Court while reversing the order of the lower Court considered res-judicata also. For that the exparte disposal of the Original Suit was considered as previous judgment for the same suit after it was renumbered and taken on file by the Subordinate Court. Therefore, the said decision reached by this Court that res-judicata will apply to the case, was exfacie incorrect and a mistake committed by the Court. In addition to that, the discovery of evidence to the effect that there was a sale deed dated 27.02.1936, to give title to the predecessor was mistakenly pleaded to be a settlement deed. The document is certainly an old document and it will exclude oral evidence. 16. When we apply the facts of the present case with the principles laid down by the Hon'ble Apex Court reported in BCCI case as well as 2009 (14) SCC 663 cited supra, we could see that the sale deed produced now would bring the correct fact and that would be a discovery of evidence so as to putforth the correct fact for the purpose of deciding the case. Moreover, this Court had come to a wrong conclusion that the suit is also barred by resjudicata by holding that the earlier decree passed in O.S.No.1335 of 1982 by the learned District Munsif, Poonamallee to the suit filed in Sub-Court and the return of the same plaint which was numbered by the learned Sub- Judge, Poonamallee, i.e., O.S.No.49 of 1988. In the principles laid down in 2009 (14) SCC 663 cited supra, the act of the Court shall not prejudice any man under the doctrine actus curiae neminem gravabit. In the principles laid down in 2009 (14) SCC 663 cited supra, the act of the Court shall not prejudice any man under the doctrine actus curiae neminem gravabit. Therefore, I find it is a fit case for reviewing the judgment passed by this Court on 7.9.2006 in A.S.No.57 of 1996. In order to render complete justice to both parties, the judgment passed by this Court on 7.9.2006 has to be set aside so as to make both parties to participate in the first appeal in A.S.No.57 of 1996 before this Court after its review. The application filed in M.P.No.1 of 2008 for reception of additional evidence is also relegated to the first appeal so as to decide the same along with the appeal. The application filed in M.P.No.1 of 2007 for injunction is also posted for disposal along with the Appeal. 17. In fine, the review application filed by the applicant is allowed and the judgment and decree passed by this Court on 7.9.2006 in A.S.No.57 of 1996 is set aside and posted for fresh hearing and disposal along with application in M.P.No.1 of 2007, application for injunction and in M.P.No.1 of 2008, application for reception of additional evidence. No order as to costs.