Research › Search › Judgment

Madras High Court · body

2014 DIGILAW 199 (MAD)

Subramaniam v. Jayarama Reddy (died)

2014-01-28

R.S.RAMANATHAN

body2014
JUDGMENT 1. The appellant in Second Appeal No.519 of 1998 is the revision petitioner. The mother of the review petitioner filed a suit in O.S.No.21 of 1985 on the file of the District Munsif Court, Tiruvallur, for the relief of permanent injunction in respect of the property measuring East – West 76 ft. and North – South 26 ft. bounded on the West by Mannady Street, North by property belonging to Singara Reddy, South by Street, East by a vacant site belonged to Arumuga Reddy and a house constructed thereon. The suit was dismissed and the Appeal filed by the plaintiff in A.S.No.99 of 1987 was also dismissed and the legal representatives of the plaintiff filed Second Appeal that was also dismissed by me by judgment dated 17.06.2011. Aggrieved over the judgment dated 17.06.2011 made in Second Appeal No.519 of 1998, this Review Petition is filed. 2. Mr. M.V. Venkataseshan, learned counsel for the review petitioner submitted that during the arguments of the Second Appeal, it was not brought to the notice of this Court the recitals in Exs.A.1 and A.2 wherein the title of the suit property to an extent of 26 feet North – South and 26 ft East – West bounded on the West by Mannady Street and South by Street, North by property belonging to Singara Reddy, East by a vacant site belonged to Arumuga Reddy and the western boundary is fixed boundary and therefore, when under Exs.A.1 and A.2, land with a house having western boundary in the street with the measurement of 26 East – West and 26 ft. North – South was sold to the plaintiff's predecessor in title, the plaintiff proved her title to the suit property even though the oral sale pleaded by the plaintiff's vendor was not proved. North – South was sold to the plaintiff's predecessor in title, the plaintiff proved her title to the suit property even though the oral sale pleaded by the plaintiff's vendor was not proved. In other words, the learned counsel for the petitioner submitted that admittedly, western boundary of the suit property is Mannady Street and under Exs.A.1 and A.2, the property East of Mannady having measurement of 26 x 26 ft was sold to the plaintiff's predecessor in title and under Ex.A.3, a larger extent was sold to the plaintiff and that would not lead to the conclusion that the plaintiff was not owner of the property lying East of the Mannady Street purchased under Exs.A.1 and A.2 and the plaintiff also proved title and possession to the suit property and those aspects were not properly appreciated and therefore, the judgment rendered in Second Appeal has to be reviewed and the Review Petition has to be allowed. In support of his contention, he also relied upon the following judgments:- (i) Sundarambal vs. V.Ramaiya Pillai [2000(2) T.L.N.J.6] (ii) Mariammal & another Vs.Subbuthai & others [2013-4-L.W.360] (iii) S.R.Srinivasa and others Vs. S.Padmavathamma [2010(5)CTC 364 (SC) 3. On the other hand, Mr. M.S. Subramanian, learned counsel for the respondents, submitted that the scope of review is very limited and no case has been brought out to review the judgment rendered in Second Appeal No.519 of 1998 and if the contention of the learned counsel appearing for the review petitioner is accepted it amounts to re-hearing the Second Appeal, which is not permissible and there is no error apparent on the face of the record and having regard to the fact that both the Courts concurrently held that he review petitioner did not prove his possession or title to the suit property, the suit was dismissed and the same was confirmed in the Second Appeal and therefore, the Review Petition is liable to be dismissed. In support of his contention, he also relied upon the following judgments:- (i) B.Dhanalakshmi Vs. M.Shajahan and others [AIR 2004 MADRAS 512] (ii) Parsion Devi and others Vs. Sumitri Devi and others [(1997) 8 Supreme Court Cases 715] (iii) K.M.Karuppana Gounder (died) & others Vs. The Revenue Divisional Officer, Periyar District, Erode & others [ 2013 (5) CTC 146 ] 4. M.Shajahan and others [AIR 2004 MADRAS 512] (ii) Parsion Devi and others Vs. Sumitri Devi and others [(1997) 8 Supreme Court Cases 715] (iii) K.M.Karuppana Gounder (died) & others Vs. The Revenue Divisional Officer, Periyar District, Erode & others [ 2013 (5) CTC 146 ] 4. The learned counsel for the review petitioner, Mr.M.V.Venkataseshan, tried to convince me by taking through the recitals in Exs.A2 and A.3. Further, according to the learned counsel, the plan annexed along with the review petition too would prove that the review petitioner has proved title in respect of the disputed portion of the property and therefore, contended that the review has to be allowed. 5. I am unable to accept the contention of the learned counsel for the review petitioner. In the judgment reported in Parsion Devi and others Vs. Sumitri Devi and others [(1997) 8 Supreme Court Cases 715], the grounds of review has been stated as follows:- "9. Under Order 47 Rule 1 of the Code of Civil Procedure a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. 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 of the Code of Civil Procedure. In exercise of the jurisdiction under Order 47 Rule 1 of the Code of Civil Procedure it is not permissible for an erroneous decision to be "reheard and corrected". A review petition, it must be remembered has a limited purpose and cannot be allowed to be "an appeal in disguise". 5. In the judgment rendered in B.Dhanalakshmi Vs. M.Shajahan and others [AIR 2004 MADRAS 512] relying upon the judgment of the Hon'ble Supreme Court reported in AIR 1995 SC 455 in the matter of Smt.Meera Bhanja v. Smt.Nirmala Kumari Choudary, the principles on the basis of which review can be entertained are stated as follows:- "9(8) It is well settled that the review proceedings are not way of an appeal and have to be strictly confined to the scope and ambit of Order 47, Rule 1 of the Code of Civil Procedure. In connection with the limitation of the powers of the Court under Order 47, Rule 1, while dealing with similar jurisdiction available to the High Court while seeking to review the orders under Art.226 of the Constitution of India, this Court, in the case of Aribam Tuleshwar Sharma v. Aribam Pishak Sharma and Ors. [ AIR 1979 SC 1047 ], speaking through Chinnappa Reddy, J., has made the following pertinent observations : "It is true there is nothing in Article 226 of the Constitution to preclude the High Court from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent mis-carriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may exercised on the discovery of new and important matter or evidence which, after the 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. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a Court of Appeal. A power of review is not to be confused with appellate power which may enable an Appellate Court to correct all manner of errors committed by the Subordinate Court." Now it is also to be kept in view that in the impugned judgment, the Division Bench of the High Court has clearly observed that they were entertaining the review petition only on the ground of error apparent on the face of the record and not on any other ground. So far as that aspect is concerned, it has to be kept in view that an error apparent on the face of record must be such an error which must strike one on mere looking at the record and would not require any long drawn process of reasoning on points where there may conceivably be two opinions. We may usefully refer to the observations of this Court in the case of Satyanarayan Laxmi Narayan Hegde and Ors. We may usefully refer to the observations of this Court in the case of Satyanarayan Laxmi Narayan Hegde and Ors. v. Mallikarjun Bhavanappa Tirumale [ AIR 1960 SC 137 ], wherein K.C. Das Gupta, J., speaking for the Court has made the following observations in connection with an error apparent on the face of the record: "An error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Where an alleged error is far from self-evident and if it can be established, it has to be established, by lengthy and complicated arguments, such an error cannot be cured by a writ of certiorari according to the rule governing the power of the superior Court to issue such a writ." 6. In the judgment rendered in K.M.Karuppana Gounder (died) & others Vs. The Revenue Divisional Officer, Periyar District, Erode and others [ 2013 (5) CTC 146 ], it is held in Paragraph No.15 as follows: "15. The Court of review has only a limited jurisdiction circumscribed by the definitive limited fixed by the language used in Order 47, Rule 1 of the Code of Civil Procedure, Court may allow a review on there specified grounds viz., (1) discovery of new and important matter or evidence, which after the exercise of due diligence, was not within the Applicant's knowledge or could not be produced by him at the time when the Decree was passed or Order was made; (2) mistake or error apparent on the face of the records; or (3) for any other sufficient reason. An error can be said to be one apparent on the face of the record only when such error is patent and can be located without any elaborate argument without any scope for any controversy with regard to such error, which as if, at a glance stares at the face." 7. Bearing these principles in mind, in my opinion, the review petition is not maintainable. Bearing these principles in mind, in my opinion, the review petition is not maintainable. As stated supra, the suit was dismissed and in the First Appeal, the lower appellate Court initially allowed the appeal and remanded the suit to the Trial Court and that was challenged in C.M.A.No.985 of 1989 and this Court set aside the judgment of the lower appellate Court and remanded the matter to the lower appellate Court for fresh disposal and thereafter, the lower appellate Court dismissed the appeal filed by the review petitioner holding that the review petitioner failed to prove his possession and enjoyment of the property and also title. At the time of admission, the Second Appeal was admitted on one substantial question law and, during the arguments, learned counsel for the appellant wanted to raise 3 more substantial questions of law and those were not considered and I hold that the substantial questions of law raised at the time of argument cannot be considered and answered the substantial question of law which was framed at the time of admission of appeal against the appellant and dismissed the appeal. Further, as held by the Hon'ble Supreme Court and our High Court, the Review Petition cannot be used to re-argue the case and review can be entertained only when there is an error apparent on the face of the record. If the error apparent on the face of the record cannot be identified at the first sight and it requires thorough investigation, it cannot be said to be error apparent on the face of the record and under the guise of review, the Court cannot re-hear the appeal. The learned counsel for the review petitioner attempted to argue the appeal while arguing the revision petition and as stated supra, that is not permissible. In my opinion, there is no error apparent on the face of the record and even if the judgment rendered in the Second Appeal No.519 of 1998 is an erroneous judgment, the only remedy available to the review petitioner is to take up the matter to the higher forum. 8. According to me, I have considered the documents produced and rival submissions of both the parties and held that the review petitioner has failed to prove the possession. Therefore, the Court below rightly dismissed the suit for injunction. 8. According to me, I have considered the documents produced and rival submissions of both the parties and held that the review petitioner has failed to prove the possession. Therefore, the Court below rightly dismissed the suit for injunction. I do not find any error on the face of record or any infirmity in the judgment rendered by the Courts. Hence, the Review Petition is dismissed. No order as to costs.