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2015 DIGILAW 1444 (MAD)

Vijayalakshmi v. Ochammal

2015-03-13

A.SELVAM

body2015
Judgment :- 1. This Review Application has been filed against the Judgment and decree passed in Second Appeal(MD)No.402 of 2010. 2. The respondent herein as plaintiff has instituted Original Suit No.237 of 2005 on the file of the District Munsif Court, Periyakulam for the reliefs of declaration and perpetual injunction, wherein the present review petitioners have been shown as defendants. 3. In the plaint it is averred that the suit property is comprised in new Survey No.297/25b measuring 0.04.0 hectares and its patta number is 4268. The plaintiff has purchased the suit property from its absolute owners by name Mallika Begum and Sahul Hameed by virtue of sale deeds dated 05.03.1997 and since then the plaintiff is in possession and enjoyment of the same and in pursuance of her title and enjoyment a patta has been granted in her favour. The property of the first defendant is situate immediately on the southern side of the suit property. The second defendant is the brother of the first defendant. Since the defendants have been making arrangements to disturb the peaceful possession and enjoyment of the plaintiff over the suit property by way of denying her title, the present suit has been instituted for the reliefs sought for in the plaint. 4. In the written statement filed on the side of the defendants, it is averred that the plaintiff has unnecessarily filed the present suit by way of impleading the defendants. The second defendant has purchased a property which situates in Survey No.297/2 by virtue of the sale deed dated 01.09.2014. Likewise the first defendant has purchased a vacant site under a registered sale deed dated 22.05.2003 and there is no merit in the suit and the same deserves to be dismissed. 5. On the basis of divergent pleadings raised on either side, the trial Court has decreed the suit as prayed for. Against the Judgment and decree passed by the trial Court, the defendants as appellants have preferred Appeal Suit No.64 of 2007 on the file of the first appellate Court. 6. The first appellate Court after hearing both sides and upon reappraising the evidence available on record has allowed the appeal and thereby set aside the Judgment and decree passed by the trial Court and ultimately dismissed the suit by way of holding that the plaintiff has not been able to identify the suit property. 6. The first appellate Court after hearing both sides and upon reappraising the evidence available on record has allowed the appeal and thereby set aside the Judgment and decree passed by the trial Court and ultimately dismissed the suit by way of holding that the plaintiff has not been able to identify the suit property. Against the Judgment and decree passed by the first appellate Court, the plaintiff has preferred Second Appeal(MD)No.402 of 2010.. 7. In Second Appeal(MD)No.402 of 2010, this Court after hearing both sides and upon reappraising the available evidence on record has allowed the same and thereby set aside the Judgment and decree passed by the first appellate Court and restored the Judgment and decree passed by the trial Court and in order to review the Judgment and decree passed by this Court in Second Appeal(MD)No.402 of 2010, the present Review Application has been filed by the respondents/defendants as petitioners. 8. The learned counsel appearing for the review petitioners has contended with great vehemence to the effect that the suit property and the properties of the defendants are situate in a larger area and proper identification has not been made on the side of the respondent/plaintiff and the first appellate Court after hearing both sides has rightly set aside the Judgment and decree passed by the trial Court and this Court has failed to consider the fact that the plaintiff has not been able to identify the suit property and therefore an error apparent on the face of record has occurred in the Judgment and decree passed by this Court and therefore the same are liable to be reviewed. 9. The learned counsel appearing for the respondent/plaintiff has contended that on the side of the respondent/plaintiff enormous documents have been filed for the purpose of proving identity of the suit property and this Court after considering the rival submissions made on either side has rightly allowed Second Appeal(MD)No.402 of 2010 and thereby restored the Judgment and decree passed by the trial Court and the present Review Application is nothing, but vexatious proceeding and therefore the same is liable to be dismissed. 10. The entire case of the plaintiff is based upon Exs.A.1 and A.2, wherein the suit Survey No.297/25b is mentioned. 11. It is not the case of the defendants that they are having right, title and interest over the suit property. 10. The entire case of the plaintiff is based upon Exs.A.1 and A.2, wherein the suit Survey No.297/25b is mentioned. 11. It is not the case of the defendants that they are having right, title and interest over the suit property. The learned counsel appearing for the respondents in Second Appeal(MD)No.402 of 2010/defendants has contended that the defendants have not claimed any right over the suit property and this Court on the basis of four boundaries given in Exs.A.1 and A.2 and other connected documents has given a clear finding to the effect that there is no dispute with regard to identity of the suit property. Since the defendants have not claimed any proprietary interest or title over the suit property and since on the side of the plaintiff acceptable/trustworthy documents have been filed for the purpose of proving that she is having title to the suit property and no dispute has arisen with regard to identity of the same, this Court has not committed any error apparent on the face of record in its Judgment rendered in Second Appeal(MD)No.402 of 2010. 12. At this juncture, it would be more useful to look into the recent decision in Dr.Subramanian Swamy v. State of Tamil Nadu & Ors. reported in AIR 2015 Supreme Court 460, wherein at paragraph No.35, the Hon'ble Apex Court has observed as follows: “The issue can be examined from another angle. Explanation to Order XLVII, Rule 1 of Code of Civil Procedure, 1908 (hereinafter referred to as the 'CPC') provides that if the decision on a question of law on which the judgment of the court is based, is reversed or modified by the subsequent decision of a superior court in any other case, it shall not be a ground for the review of such judgment. Thus, even an erroneous decision cannot be a ground for the court to undertake review, as the first and foremost requirement of entertaining a review petition is that the order, review of which is sought, suffers from any error apparent on the face of the order and in absence of any such error, finality attached to the judgment/order cannot be disturbed”. 13. 13. Even a mere reading of the observations given by the Hon'ble Supreme Court, it is made clear that the first and foremost condition for reviewing any order or Judgment, the same must suffer from an error apparent on the face of the record and in the absence of any such error, finality attached to Judgment/order cannot be disturbed. 14. In the instant case, the specific argument putforth on the side of the respondents/ defendants in Second Appeal(MD)No.402 of 2010 is that they are not having any semblance of right, title and interest over the suit property and therefore it is totally unwarranted on their part to contend that the plaintiff has not identified the suit property. It has already been pointed out that by virtue of Exs.A.1 and A.2 and other connected documents, the plaintiff has clearly identified the suit property. Therefore it is quite clear that this Court has not committed any error apparent on the face of the record and in view of the recent decision given by the Hon'ble Supreme Court, this petition is totally vexatious and therefore the contention putforth on the side of the review petitioners is sans merit. 15. Before parting with this petition, it has become shunless to record the following aspects. Nowadays it has become fashion to file vexatious/ frivolous review petitions. Under the said circumstances, the person who indulges in filing review petition with utmost malice should be chastise properly by way of imposing monetory punishment. Under the said circumstances, this petition should be dismissed with exemplary cost as stated infra. 16. In fine, this Review Application is dismissed with exemplary cost of Rs.25,000/-. Consequently, connected Miscellaneous Petition is dismissed.