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2011 DIGILAW 2514 (MAD)

K. P. Anandan v. K. P. Madhavan

2011-04-29

R.SUBBIAH

body2011
Judgment :- 1.The present Review application has been filed for reviewing the judgment delivered by this Court dated 10.12.2009 in S.A.No.662 of 1991, whereby the second appeal filed by the 1st respondent herein was dismissed. 2. The short facts of the case, which are necessary for disposal of the review application, are as follows: (a) K.P.Anandan, the review petitioner herein, is the plaintiff in O.S.No.7832 of 1984 on the file of XV Assistant Judge, City Civil Court, Madras and the respondents are defendants 2 to 4 and 6. Pending second appeal, defendants 1 and 5 died. The review petitioner/herein filed the suit as against his mother Padmavathi and his siblings as defendants 1 to 6 for partition and separate possession of his 1/7th share in the suit property and also a sum of Rs.858/- per month being future mesne profits of his 1/7th share from the date of plaint till the allotment of his share. The suit was contested by the defendants and the same was dismissed on 15th July, 1987. Aggrieved over the same, the plaintiff has filed A.S.No.479 of 1988 before the XI Additional Judge, City Civil Court, Madras and the lower appellate court allowed the appeal in part by granting a preliminary decree for 1/7th share in the suit property and confirmed the finding with regard to the future mesne profits. Aggrieved over the same, the 1st respondent herein filed S.A.No.662 of 1991 before this Court and this Court by its judgment dated 10.12.2009 dismissed the appeal and confirmed the finding of the lower appellate court. During the pendency of the second appeal, the mother of the plaintiff, by name, Padmavathi as well as the 5th defendant Kirupa died. (b) Thereafter, the plaintiff filed the present review application stating that during the pendency of the second appeal, defendants 1 and 5 died and the surviving parties in the second appeal are their legal representatives and so, the 1/7th share of the plaintiff has now increased to 1/5th share in the suit property. Though the review applicant claimed mesne profits, the first appellate Court has not considered this aspect and negatived his claim in this regard and granted a decree only with regard to his entitlement of 1/7th share. During the proceedings of the second appeal, the review petitioner has omitted to represent before this Court with regard to the disallowed portion, namely, future mesne profits. During the proceedings of the second appeal, the review petitioner has omitted to represent before this Court with regard to the disallowed portion, namely, future mesne profits. Hence, the present application is filed to review the judgement delivered in the second appeal. 3. Learned counsel for the review applicant/plaintiff submitted that when the first appellate court has come to the conclusion that the review petitioner is entitled for 1/7th share in the suit property, it ought to have allowed the other prayer of the plaintiff directing the defendants to pay a sum of Rs.858/- being the future mesne profits of his 1/7th share from the date of plaint till his allotment of share in the suit schedule property. But the lower appellate court, without assigning any valid reason and by merely saying that the plaintiff has not proved his case that the 2nd defendant is deriving the income of Rs.6,000/- from the suit property, has held that the plaintiff is not entitled for future mesne profits as prayed for in the suit. In this regard, the learned counsel for the review applicant, by inviting the attention of this Court to Section 3(26) of the General Clauses Act, submitted that the "immovable property" has been defined that it shall include land, benefits to arise out of land, and things attached to the earth, or permanently fastened to anything attached to the earth. Therefore, when the lower appellate court has come to the conclusion that the review petitioner is entitled to 1/7th share, it ought to have allowed the relief of mesne profits i.e. the benefits arise out of the suit property. But the lower appellate court has erroneously negatived the relief of mesne profits. 4. Though the review applicant has not made a submission with regard to the disallowed portion of the decree passed by the first appellate court, in the second appeal filed by the 1st respondent as against the preliminary decree, this Court ought to have dealt with the aspect of mesne profits. 4. Though the review applicant has not made a submission with regard to the disallowed portion of the decree passed by the first appellate court, in the second appeal filed by the 1st respondent as against the preliminary decree, this Court ought to have dealt with the aspect of mesne profits. When the parties have taken so many pleas, it is the duty of this Court to deal with every plea, particularly in the appeal arisen out of the partition suit and even if an appeal is not filed as against the dismissal of the mesne profits by the lower appellate court when it had come to the conclusion that the plaintiff is entitled for 1/7th share in the suit property, it might have allowed the prayer for mesne profit also. In support of his contention, the learned counsel has relied upon the decisions reported in PANNA LAL .vs. STATE OF BOMBAY AND OTHERS ( AIR 1963 SC 1516 ), BABBURU BASAVAYYA .vs. BABBURU GURAVAYYA (AIR (38) 1951 MADRAS 938), SUBBA REDDIAR vs. HEZRA BIBI (AIR 1973 MADRAS 237) and FOMENTO RESORTS AND HOTELS LTD., .vs. GUSTAVO RANATO DA CRUZ PINTO (98 L.W. 699(SC). 5. Per contra, the learned counsel for the 1st respondent/ 1st defendant submitted that at the time of hearing the second appeal, no argument was advanced with regard to the disallowed portion of mesne profits. Generally if a party obtained a decree in part, ought to have filed an appeal or cross appeal with regard to the disallowed portion. Having not done so, now the review applicant cannot ask for the relief by way of review petition. Further, the learned counsel submitted that the scope of the review is very narrow and only if the error is apparent on the face of the record, the review application could be entertained. 6. In view of the submissions made by the learned counsel on either side, the only question that arises for consideration is, whether the review petition could be entertained since this Court has failed to deal with the prayer of the disallowed portion of mesne profits? 7. 6. In view of the submissions made by the learned counsel on either side, the only question that arises for consideration is, whether the review petition could be entertained since this Court has failed to deal with the prayer of the disallowed portion of mesne profits? 7. The sum and substance of the submission of the learned counsel for the review applicant is that in the suit for partition when the Court had come to the conclusion that the plaintiff is entitled for a share in the immovable property, it ought to have dealt with the mesne profits also, even if the plaintiff has not asked for the same. 8. The learned counsel for the review applicant has relied on some decisions in support of his case and in AIR 1963 SC 1516 (supra), the Hon'ble Apex Court has held as follows: "The wide wording of O.41 R.33 was intended to empower the appellate court to make whatever order it thinks fit, not only as between the appellant and the respondent but also as between a respondent and a respondent. It empowers the appellate court not only to give or refuse relief to the appellant by allowing or dismissing the appeal but also to give such other relief to any of the respondents as "the case may require". If there was no impediment in law the High Court in appeal could, therefore, though allowing the appeal of the defendant-appellant by dismissing the plaintiff's suits against it, give the plaintiff respondent a decree against any or all theother defendants who were parties to the appeal as respondents. While the very words of the rule make this position abundantly clear the illustration puts the position beyond argument. If a party who could have filed a cross-objection under O.41 R.22 has not done so it cannot be said that the Appeal Court can under no circumstances give him relief under the provisions of O.41 R.33". 9. In AIR (38) 1951 Madras 938 (supra), a Full Bench of this Court has held as follows: "8. ... We are not here concerned with a claim for an account of past profits. 9. In AIR (38) 1951 Madras 938 (supra), a Full Bench of this Court has held as follows: "8. ... We are not here concerned with a claim for an account of past profits. A tenant-in-common who files a suit for partition seeks a partition not only of his share of the properties forming the subject-matter of the suit, but also of his share of the profits accruing from these properties during the pendency of the suit or till he is put in possession of his share. .... The profits accruing from the common properties pending a suit for partition, like the properties themselves, are liable to be partitioned under the final decree even without a specific prayer in the plaint for an account of such profits & a division thereof. ..... A suit for partition by a member of a joint Hindu family is substantially a suit for an account of the joint family properties on the date of the suit as well as all the profits received by the manager since that date, so that the profits should also be divided & his proper share given to him. If, as we think, this is the true nature of the proceedings in a suit for partition a direction for an enquiry into the profits of the common property received or realised by one of the parties during the pendency of the suit may be made even after the passing of the preliminary decree & there is nothing in Order 20, Rule 18, Civ. P.C. interdicting such procedure". 10. In AIR 1973 MADRAS 237, a Division Bench of this Court has observed as follows: "4. It was also observed that a tenant-in-common, who files a suit for partition, seeks a partition not only of his share of the properties, forming the subject matter of the suit, but also his share of the profits accruing from those properties during the pendency of the suit or till he is put in possession of his share; and that he cannot anticipate how long the suit would be pending or estimate even approximately what amount of profits would be realised during that period and that he need not therefore specifically ask for any relief in respect of future profits the prayer for general relief being sufficient to enable the Court to award him such profits. From this decision it clearly emerges that the rights based on the preliminary decree will have to be worked out by taking note of equities right upto the moment of the passing of the final decree which necessarily must embrace the question of the plaintiff's share of the income from the common property till the passing of the final decree and this right to an account in respect of the income upto the moment of the passing of the final decree is implicit and inherent in the right to a share in the property itself. 11. The Hon'ble Apex Court in 98 L.W.699 (SC), has held as follows: "27. In a matter of this nature where several contentions factual and legal are urged and when there is scope of an appeal from the decision of the Court, it is desirable as was observed by the Privy Council long time ago to avoid delay and protraction of litigation that the court should, when dealing with any matter, dispose of all the points and not merely rest its decision on one single point". 12. A reading of the above judgments would show that a person, who filed a suit for partition, seeks a partition not only for his share in the properties, forming the subject matter of the suit, but also his share of the profits accruing from those properties. Therefore, the Court can deal with the aspect of mesne profits even if the plaintiff has not asked for it. Absolutely, there is no quarrel in accepting the said proposition; but in the instant case, the question to be considered is, when the first appellate court had specifically refused the relief of mesne profits and when the review petitioner has not canvassed the said prayer in the second appeal, can the relief of mesne profits be granted in the review application. 13. The relevant paragraphs extracted in the decision reported in JAGANNATH, L ..vs.. THE LAND ACQUISITION OFFICER & REVENUE DIVISIONAL OFFICER, PALANI ( 2006(2) CTC 809 ) is a fitting answer to the question, which are hereunder: "11. But in the case on hand it is not the case of the Review Applicants that documents placed before the Division Bench by them was not considered by the Division Bench. THE LAND ACQUISITION OFFICER & REVENUE DIVISIONAL OFFICER, PALANI ( 2006(2) CTC 809 ) is a fitting answer to the question, which are hereunder: "11. But in the case on hand it is not the case of the Review Applicants that documents placed before the Division Bench by them was not considered by the Division Bench. In our considered view, the facts of the case in A.I.R. 2006 S.C.75 and the facts of the case on hand are totally different. Therefore in our considered view the said decision is not applicable to the facts of this case. As far as the decision reported in A.I.R. 2000 S.C. 1650 is concerned, it is rather in favour of the contesting respondents than the Review Applicants. In this decision, the Honourable Supreme Court has held that Review is also not an appeal in disguise and Review cannot be treated as an appeal in disguise. It has been further held that the power of Review can be exercised for correction of a mistake and not to substitute a view and mere possibilities of two views on the subject is not a ground for Review. In Paragraph 57 of the said judgment, it has been observed and held as follows: "It is not the case of the petitioners that they have discovered any new and important matter which after the exercise of due diligence was not within their knowledge or could not be brought to the notice of the Court at the time of passing of the judgment. All pleas raised before us were in fact addressed for and on behalf of the petitioners before the Bench which, after considering those pleas, passed the judgment in Sarla Mudgal's case. We have also not found any mistake or error apparent on the face of the record requiring a review. Error contemplated under the rule must be such which is apparent on the face of the record and not an error which is to be fished out and searched. It must be an error of inadvertence. No such error has been pointed out by the learned counsel appearing for the parties seeking review of the judgment." 12. Error contemplated under the rule must be such which is apparent on the face of the record and not an error which is to be fished out and searched. It must be an error of inadvertence. No such error has been pointed out by the learned counsel appearing for the parties seeking review of the judgment." 12. If we consider the case on hand, in the light of the above, we can see that in this case also it is not the case of the Review Applicants that they have discovered any new and important point which after the exercise of due diligence was not within their knowledge or could not be brought to the notice of the Court at the time of passing of the orders in the impleading petitions. In this case, all pleas raised before us were not in fact addressed before the Division Bench. As pointed out by the Honourable Supreme Court of India, error contemplated under Order 47 Rule 1 must be such which is apparent on the face of the record and not an error which is to be fished out and searched. It must be an error of inadvertence. In our considered view, no such error has been pointed out by the Learned Senior Counsel appearing for the Review Applicants. 13. As far as the decision reported in Parison Devi v. Sumita Devi, 1998 (1) C.T.C 25 is concerned, it is held that an error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the Court to exercise its power of Review under Order 47 Rule 1, C.P.C. In exercise of the jurisdiction under Order 47 Rule 1, C.P.C, it is not permissible for an erroneous decision to be "reheard and corrected". The Honourable Supreme Court of India has further held that a Review Petition has a limited purpose and cannot be allowed to be "an appeal in disguise". The Honourable Supreme Court of India has however held in this decision that there is a clear distinction between an erroneous decision and an error apparent on the face of the record. While the first can be corrected by the higher forum, the later only can be corrected by exercise of review jurisdiction. The Honourable Supreme Court of India has however held in this decision that there is a clear distinction between an erroneous decision and an error apparent on the face of the record. While the first can be corrected by the higher forum, the later only can be corrected by exercise of review jurisdiction. If the above said principles laid down by the Honourable Supreme Court of India are applied to the case on hand, the submissions of Mr. T.R.Rajagopalan, Learned Senior Counsel, cannot be accepted as it would amount to converting the review jurisdiction into an appellate jurisdiction. Even assuming the order of the Division Bench to be erroneous, it is not permissible for us to rehear the matter afresh and correct the decision. As the review petitions have a limited purpose, it cannot be allowed to be "an appeal in disguise". The five errors, which according to Mr. T.R.Rajagopalan, Learned Senior Counsel are errors apparent on the face of the record, in our considered view, cannot be called or termed as errors apparent on the face of the record. 14. An error which is not self-evident and has to be detected by process of reasoning can hardly be said to be an error apparent on the face of the record, justifying the Court to exercise the power of review under Order 47, Rule 1 of C.P.C. In our considered view, in exercise of jurisdiction under Order 47, Rule 1, C.P.C., it is not permissible for an erroneous decision to be reheard and corrected. Unfortunately, all the factual and legal submissions sought to be reviewed. The above said decisions relied upon by the learned Senior Counsel were also not referred to, relied upon and arguments advanced on that basis before the Division Bench. The relevant part of the order sought to be reviewed, which has been extracted above, does not indicate or show that the above said submissions were made before the Division Bench. In this context, it is pertinent to point out that it is neither stated in the Review Applications nor submitted by Mr.T.R.Rajagopalan, learned Senior Counsel during the course of his elaborate arguments that the above said submissions were made but the same have been omitted to be considered by the Division Bench. In this context, it is pertinent to point out that it is neither stated in the Review Applications nor submitted by Mr.T.R.Rajagopalan, learned Senior Counsel during the course of his elaborate arguments that the above said submissions were made but the same have been omitted to be considered by the Division Bench. But having failed to make the above said factual submissions and legal arguments before the Division Bench, it is not open to the Review Applicants to raise all those factual and legal submissions in the Review Applications. A Review Application has a limited purpose and cannot be allowed to be appeal in disguise". 14. A perusal of said paragraphs would show that the review applicant, having failed to canvass the mesne profits in the second appellate stage and also having failed to file an appeal as against the refusal portion of the relief, now cannot ask for reviewing the judgment rendered in the second appeal since the scope of the review application is very narrow and only if there is an error apparent on the face of record. Hence, I am of the view that the review applicant is not entitled to raise the same in the present review application and as such, I do not find any material to review the judgment rendered by this Court. In fine, the Review Application is, accordingly, dismissed. No costs. Connected C.M.P.is closed.