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2014 DIGILAW 269 (MAD)

Harikesavan v. Purushothaman

2014-02-05

R.KARUPPIAH

body2014
Judgment : 1. This review application is filed against the Judgment and Decree of this Court passed in S.A.No.1440 of 1998 dated 17.09.2012. 2. Heard the learned counsel appearing on either side. 3. The learned counsel appearing for the applicant submitted that the respondent has originally filed a suit in O.S.No.116 of 1977 and it was dismissed on 30.12.1978 and the 1st appeal A.S.No.50 of 1979 was also dismissed on 20.08.1980 and the second appeal was preferred by the respondent in S.A.No.671 of 1981. 4. In the above said second appeal, this Court has allowed the appeal and remanded back the suit to trial court on 29.06.1981 with a direction that the trial court to frame additional issues and permitted both sides to let additional evidence and then pronounce judgment. After remand, the plaint was amended and seeking recovery of possession and also impleaded the second defendant in the suit. The trial court, after considering the evidence adduced on both sides and dismissed the suit on 31.07.1995 and the first appeal in A.S.No.254 of 1995 was preferred. The first appellate court has allowed the appeal and decreed the suit as prayed for in the suit. Aggrieved over the above said decree and judgment passed by the first appellate court, the defendant in the suit preferred the second appeal S.A.No.1440 of 1998 before this Court and this Court has pronounced the judgment on 17.09.2012 and dismissed the second appeal and confirmed the decree and judgment passed by the first appellate court. As against the decree and judgment passed by this Court, the appellant has filed this review application before this Court to review the decree and judgment pronounced by this Court. 5. The learned counsel appearing for the Review applicant submitted that the respondent/plaintiff filed a suit for declaration and other reliefs, but the respondent has produced before the trial court only the certified copy of sale deeds namely Exs.A1 and A2 and the original documents of the above said sale deeds produced by the defendant in the suit as Exs.B2 and B3. But, the first appellate court and also this Court not properly considered the above said facts. But, the first appellate court and also this Court not properly considered the above said facts. The learned counsel further submitted that this Court has not given any specific findings regarding date of encroachment and hence, the grant of relief of recovery of possession is not correct and therefore, prayed for review the above said findings of this Court on the two grounds stated above. 6. The learned counsel appearing for the respondent/plaintiff in the suit submitted that this Court has discussed about the oral and documentary evidence and also discussed all the points raised by both sides and finally confirmed the decree and judgment passed by the first appellate court. It is further submitted that the applicant has no locus standi to file review petition before this Court, since this Court has pronounced the judgment only after hearing both sides submissions and all the points raised in the review application also discussed in detail and finally answered in negative against the review applicant. The learned counsel further submitted that this application is filed only to prolong the matter as much as possible. It is also pointed out that this respondent/plaintiff already filed execution petition in E.P.No.70 of 2013 and it is pending and therefore, no merits in this application and it is abuse of process of Court. 7. A careful reading of the entire judgment of this Court pronounced on 17.09.2012 in S.A.No.1440 of 1998 revealed that this Court has discussed in detail about the entire oral and documentary evidence adduced on either side and also considered both sides submissions and then dismissed the appeal. Further, this Court has discussed about the Exs.A1 and A2 certified copies produced by the respondent/plaintiff and also the original sale deeds of the above said documents namely Exs.B2 and B3 and finally given a finding in the judgment. Further, the above said documents namely Exs.A1 and A2 marked before the trial court, at the time of evidence recorded in the first time itself, on the side of the defendants have not raised any objections to mark the above said documents. Further, applicant himself produced the original documents and marked as Exs.B2 and B3. Further, the above said documents namely Exs.A1 and A2 marked before the trial court, at the time of evidence recorded in the first time itself, on the side of the defendants have not raised any objections to mark the above said documents. Further, applicant himself produced the original documents and marked as Exs.B2 and B3. In the above said circumstances, the contention of the learned counsel appearing for the applicant that only on the basis of the Registration copies of the sale deeds (i.e.) Exs.A1 and A2, this Court has pronounced the judgment and therefore, the above said judgment is to be reviewed cannot be accepted. 8. The learned counsel for the review applicant relied on a decision of this Court reported in 2014(1)CTC 216 (J.S.Godwin & another vs. J.S.Jashmin Stellah) and submitted that the respondent seeking relief on the basis of secondary evidence and not primary evidence and therefore, the judgment of this Court is to be reviewed. The above said decision is not applicable to the facts of this case. Since the above said case, only copy of Will has been marked and not taking any steps to produce the original Will. But, in the instant case, as already stated, the original documents were also marked as Exs.B2 and B3 and also not objected to mark the documents at the time of marking the documents before trial court. Therefore, the above said decision is not applicable to the facts of the present case and also not helpful the review applicant. 9. The next contention of the learned counsel appearing for the review applicant is that, this Court has not given any findings regarding the date of encroachment and therefore, the judgment pronounced by this Court is not valid in law and it has to be reviewed. 10. Per contra, the learned counsel appearing for the respondent submitted that in the judgment of this Court in para 30 has discussed in detail and finally held that "when once title the suit property has been established, the admitted possession held by the defendant has to be restored to the plaintiff and there is no necessity of proving the date of dispossession." Therefore, this Court has also considered the above said contention of the review applicant and clear finding was given in the judgment. Therefore, the above said contention also unsustainable. 11. Therefore, the above said contention also unsustainable. 11. The learned counsel appearing for the respondent has submitted that the review application is not maintainable since the applicant has not given satisfactory grounds to review the judgment and in support of his submission, the learned counsel relied on the judgment of the Hon'ble Supreme Court reported in 2013 (4) CTC 882 (Kamlesh Verma vs. Mayawati & Others), in which, para 16 (B) reads as under: "16(B) When the review will not be maintainable: (i) A repetition of old and overruled argument is not enough to reopen concluded adjudications. (ii) Minor mistakes of inconsequential import. (iii) Review proceedings cannot be equated with the original hearing of the case. (iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice. (v) A review is by no means an Appeal in disguise whereby an erroneous decision is re-heard and corrected but lies only for patent error. (vi) The mere possibility of two views on the subject cannot be a ground for review. (vii) The error apparent on the face of the record should not be an error which has to be fished out and searched. (viii) The appreciation of evidence on record is fully within the domain of the Appellate Court, it cannot be permitted to be advanced in the Review Petition. (ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived." 12. Applying the settled principles of law laid down by the Hon'ble Supreme Court in the above said decision, this review application is not at all maintainable, as rightly pointed out by the learned counsel for the respondent/plaintiff. In the instant case, the learned counsel appearing for the applicant, has not pointed out any mistake or error apparent on the face of the record and therefore, the applicant is not entitled to challenge the impugned judgment in the guise that an alternative view is possible under Review Jurisdiction. Therefore, the considered view of this Court is that this Review Application is liable to be dismissed. 13. In the result, this Review Application is dismissed. No order as to costs. Consequently, connected miscellaneous petition M.P.No.1 of 2013 is closed.