Research › Search › Judgment

Madras High Court · body

2015 DIGILAW 1213 (MAD)

Yesudian (Died) v. Mohison (Died)

2015-03-02

M.SATHYANARAYANAN

body2015
Judgment :- 1. The petitioners are the legal representatives of the deceased first defendant. 2. The first respondent/plaintiff, while he was alive, filed the suit in O.S.No.9 of 1973 on the file of the Court of District Munsif, Kuzhithurai, Kanyakumari District, against the defendants, praying for a preliminary decree for partition by metes and bounds and separate possession of 1/6 share with proportionate road frontage, redemption and recovery of possession and of 1/6 share of the mortgaged property and also interest at the rate of 12% p.a. on the mortgage amount from the date of deposit till recovery of possession of the suit property, in lieu of mesne profits and also for costs. 3. The suit, after contest, came to be dismissed on 20.01.1978 and aggrieved by the same, the plaintiff filed the appeal in A.S.No.162 of 1978 on the file of the Sub Court, Kuzhithurai and it was allowed and the matter was remanded to the trial Court. 4. After remand, the additional documents came to be filed and so also, the additional pleadings. 5. The trial Court, after formulating the additional issues, has granted the preliminary decree on 01.10.1983, declaring that the plaintiff is entitled to 1/6 share and the defendants 4 to 7 are entitled to 1/6 share and the 9th defendant is entitled to 27 cents with his building and also granted one month time for depositing the mortgage amount. 6. The first defendant, aggrieved by the same, filed the appeal in A.S.No.299 of 1983 on the file of the Sub Court, Kuzhithurai, Kanyakumari District. 7. The lower appellate Court, after going into the merits of the case, dismissed the appeal, vide judgment and decree dated 21.09.1990 and challenging the same, the second appeal in S.A.No.665 of 1991 was preferred and it was also admitted and two substantial questions of law were also framed. 8. This Court, on an elaborate consideration of the materials placed before it, found that the impugned judgment and decree passed by the lower appellate Court, in confirming the judgment and decree passed by the trial Curt, warrants no interference and accordingly, dismissed the second appeal, vide judgment dated 27.06.2012. 9. The legal representatives of the deceased first appellant, who prosecuted the second appeal, had filed this Review Application to review the said judgment. 10. 9. The legal representatives of the deceased first appellant, who prosecuted the second appeal, had filed this Review Application to review the said judgment. 10. This Review Application was filed with a delay of 71 days in filing the same and this Court, vide order dated 02.03.2015, made in M.P(MD)No.1 of 2013 in Review Application (MD)SR.No.45795 of 2012, has condoned the delay. 11. The first respondent/plaintiff also died and M.P(MD)No.1 of 2014 in M.P(MD)No.1 of 2013 in Review Application (MD)SR.No.45795 of 2012, was filed to bring on record his legal representatives as the respondents 45 to 48 and it was also ordered, vide order dated 02.03.2015, wherein the Registry was directed to carry out necessary amendments in the cause title. 12. By consent, the main Review Application itself is taken up for final disposal. 13. Mr. S.C.Herold Singh, learned Counsel for the petitioners has drawn the attention of this Court to the impugned judgment passed by the Courts below and this Court and vehemently contended that purely on account of inadvertence, the dismissal of the suit in O.S.No.527 of 1966 as well as the appeal preferred against the said judgment and decree, in A.S.No.42 of 1983 which also came to be dismissed on 27.09.1989, have not been brought to the knowledge of this Court and the said decisions would clearly operate as res judicata and therefore, the suit filed by the plaintiff itself is not maintainable and since it is a pure question of law, the learned Counsel for the petitioners prays for reviewing the impugned judgment passed in the second appeal. 14. Per contra, Mr. Saji Bino, learned Counsel for the respondents 45 to 48/legal representatives of the deceased first respondent/plaintiff would contend that admittedly, no such plea was taken before the trial Court and even before the lower appellate Court and no additional grounds have been filed and so also before this Court by filing a petition under Order 41 Rule 27 of the Code of Civil Procedure and even at the time of putting forth the submissions before this Court, the learned Counsel for the petitioners did not advance any arguments and since the scope of the review is very limited, the grounds urged in the review cannot be considered and prayed for the dismissal of this review application with exemplary costs. 15. 15. This Court has carefully considered the rival submissions and also perused the impugned judgment as well as the grounds of Review. 16. It is a well settled position of law that under the guise of arguing the review application, the points already agitated and urged in the appeal, cannot be re-agitated again. The review lies only for the patent error, where without any elaborate arguments, the error which on the face of it is to be pointed out. 17. As rightly pointed out by the learned Counsel for the respondents 45 to 48/legal representatives of the deceased first respondent/plaintiff, the points urged in the grounds of review have not been raised in the pleadings before the trial Court and they have not been urged before the lower appellate Court and also before this Court. 18. This Court, considering the limited scope of power available under Order 47 Rule 1 of the Code of Civil Procedure, is of the view that the points urged by the learned Counsel for the petitioners, on the face of it, are untenable and finds no merit in this Review Application and therefore, the same is dismissed at the stage of admission. No costs.