Research › Search › Judgment

Madras High Court · body

2015 DIGILAW 1445 (MAD)

Adhi Penthecosthe Sathiya Sabhai v. V. T. Alexander

2015-03-13

A.SELVAM

body2015
Judgment :- 1. This Review Application has been filed praying to review the Judgment and decree passed in Second Appeal (MD)No.114 of 2008 dated 08.02.2012. 2. The petitioner herein as plaintiff has instituted Original Suit No.124 of 2004 on the file of the trial Court for the relief of perpetual injunction, wherein the present respondent has been shown as first defendant. 3. The material averments made in the plaint are that one Sadhu Devanesam has established Adhi Penthocoste Sathya Sabha and a Church by name Adhi Penthocoste Truth Church in Malavilai. He also created a list of service holders for doing service both in the Church as well as in Christianity. The Church mentioned in the plaint is under the care and control of the plaintiff. The defendants are not having any manner of right in administration. Since the defendants have made arrangements to disturb administration of the plaintiff in the Sabha mentioned in the plaint, the present suit has been instituted for the relief sought for in the plaint. 4. In the written statement filed on the side of the first defendant, it is averred that the Sabha mentioned in the plaint has been established by Sadhu Devanesam and he also culled out certain by-laws for administration. The first defendant is also one of the pastors and having right of administration and therefore the claim of the plaintiff is totally erroneous. Further the first defendant is residing in a portion of the Church building and under the said circumstances, the claim of the plaintiff is liable to be rejected and the present suit is liable to be decreed with regard to counterclaim made on the side of the first defendant. 5. On the basis of the rival pleadings raised on either side, the trial Court has framed necessary issues and after analysing both the oral and documentary evidence has decreed the suit as prayed for. It has also granted a decree in respect of counterclaim to the extent that the first defendant is entitled to reside in a portion of the Church without making any hindrance in the administration of the plaintiff and the plaintiff should not indulge in any activities so as to evict the first defendant and the first defendant subject to by-laws is having right to take part in prayer. Against the Judgment and decree passed by the trial Court, the plaintiff as appellant has preferred Appeal Suit No.5 of 2007 and the first defendant as cross appellant has preferred Cross Appeal No.5 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 Appeal Suit No.5 of 2007 and dismissed the counterclaim. The first appellate Court has also dismissed Cross Appeal No.5 of 2007. Against the Judgment and decree passed by the first appellate Court, Second Appeal(MD)No.114 of 2008 has been filed on the file of this Court. 7. After hearing both sides and upon reappraising the evidence available on record, this Court has allowed Second Appeal (MD)No.114 of 2008 in part and thereby confirmed the Judgment and decree passed by the trial Court in favour of the plaintiff. Further this Court has restored the Judgment and decree granted in favour of the first defendant in respect of counterclaim. This Court has further observed that the first defendant is entitled to take part in prayer subject to rules and conditions of the Sabha mentioned in the plaint and he is also entitled to reside in the portion in which he is residing. In order to review the Judgment and decree passed by this Court in Second Appeal(MD)No.114 of 2008, the present Review Application has been filed at the instance of the plaintiff as petitioner. 8. Before perpending the rival submissions made on either side, the Court has to narrate the following admitted facts. It is an admitted fact that one Sadhu Devanesam has established the Sabha mentioned in the plaint and he also established the Church by name Adhi Penthocoste Truth Church in Malavilai. 9. The founder himself has maintained a list of workers and also created by-laws for effective administration of the Sabha and Church. 10. The claim of the plaintiff is that he is administering the Sabha mentioned in the plaint and the defendants are nothing, but workers and they are not having power of administration. Since they tried to interfere with the power of administration, the present suit has been filed for the relief of perpetual injunction. 11. 10. The claim of the plaintiff is that he is administering the Sabha mentioned in the plaint and the defendants are nothing, but workers and they are not having power of administration. Since they tried to interfere with the power of administration, the present suit has been filed for the relief of perpetual injunction. 11. The claim putforth on the side of the first defendant is that he is also one of the administrators and further he is residing in a portion of Church building and under the said circumstances, the main relief sought for in the plaint cannot be granted whereas the suit is liable to be decreed in respect of counterclaim. 12. The trial Court has accepted the claim putforth both by the plaintiff and first defendant and to that extent decreed the suit. But the first appellate Court has rejected the counterclaim made on the side of the first defendant. In Second Appeal No.114 of 2008, this Court has confirmed the main relief sought for in the suit and also restored the relief sought for in the form of counterclaim. 13. The learned counsel appearing for the review petitioner has elaborately contended to the effect that during pendency of Second Appeal(MD) No.114 of 2008, the respondent/first defendant has joined in another Sabha by name Aramada Deiva Saba at Koodarapally bearing Registration No.T1092/80, Carmel Mandapam, Aramada P.O., Thiruvananthapuram - 695 032, Kerala State and subsequently he has been elected as President alongwith another Poster by name Samraj and under the said circumstances as per by-laws of the Sabha mentioned in the plaint, he ceased to be a worker of the same and therefore the Judgment and decree passed in Second Appeal(MD)No.114 of 2008 are liable to be reviewed. 14. In order to resile the contention putforth on the side of the review petitioner, the learned counsel appearing for the respondent has contended that all the documents submitted on the side of the petitioner are not true and further the respondent/first defendant has not left the Church and sabha mentioned in the plaint and therefore the contentions putforth on the side of the petitioner are liable to be rejected and altogether the present Review Application is liable to be dismissed. 15. The entire contention putforth on the side of the review petitioner is based upon the documents filed alongwith M.P (MD)No.3 of 2014. 16. 15. The entire contention putforth on the side of the review petitioner is based upon the documents filed alongwith M.P (MD)No.3 of 2014. 16. The learned counsel appearing for the review petitioner has repeatedly contended that on the basis of new facts and also subsequent discovery, the petitioner is entitled to file this Review Application under Order 47, Rule 1 of the Code of Civil Procedure, 1908 and further on the side of the petitioner along with M.P(MD)No.3 of 2014, voluminous documents have been filed for the purpose of proving that the respondent/first defendant during pendency of Second Appeal(MD)No.114 of 2008, has joined in Aramada Deiva Saba at Koodarapally bearing Registration No.T1092/80, Carmel Mandapam, Aramada P.O., Thiruvananthapuram - 695 032, Kerala State and therefore the Judgment and decree passed in Second Appeal No.114 of 2008 are liable to be reviewed. 17. In support of his contention, he has relied upon the following decisions: (1) In Kamlesh Verma v. Mayawati & Others reported in 2013(4) CTC 882, the Hon'ble Supreme Court has culled out the following stages under which a Review Application is maintainable: (i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him; (ii) Mistake or error apparent on the face of the record; (iii) Any other sufficient reason. (2) In Dr.Aloys Wobben and Another v. Yogesh Mehra and Others reported in (2014)5 MLJ 90 (SC), the Hon'ble Supreme Court has held that a counterclaim for all intents and purposes, must be understood as a suit, filed by one who is impleaded as a defendant. 18. At this juncture, the Court has to rely upon the following decisions: (i) In Rajendra Kumar and others v. Rambhai and others reported in AIR 2003 Supreme Court 2095, the Larger Bench of the Hon'ble Supreme Court has held that foremost requirement for entertaining review under Order 47, Rule 1 of the Code of Civil Procedure, 1908 is that order to be reviewed must suffer from an error apparent on the face of record. (ii) In Dr.Subramanian Swamy v. State of Tamil Nadu & Ors. reported in AIR 2015 Supreme Court 460, it is held that the issue can be examined from another angle. (ii) In Dr.Subramanian Swamy v. State of Tamil Nadu & Ors. reported in AIR 2015 Supreme Court 460, it is held that the issue can be examined from another angle. Explanation to Order XLVII, Rule 1 of Code of Civil Procedure, 1908 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. 19. From the conjoint reading of the decisions mentioned supra, it is pellucid that for invoking Order 47, Rule 1 of the Code of Civil Procedure, 1908, the first and foremost condition is that there must be an error apparent on the face of the record. In the absence of such error, question of entertaining review application does not arise. 20. As pointed out earlier, the entire contention putforth on the side of the review petitioner is that on the basis of documents filed along with M.P(MD)No.3 of 2014, the respondent/first defendant has joined in Aramada Deiva Saba at Koodarapally bearing Registration No.T1092/80, Carmel Mandapam, Aramada P.O., Thiruvananthapuram - 695 032, Kerala State, during pendency of Second Appeal(MD)No.114 of 2008. In fact, so many documents have been filed along with M.P(MD)No.3 of 2014 and those documents are not accepted by the respondent/ first defendant. 21. In the plaint, it has been specifically and categorically stated that the defendants 1 and 2 are workers of the Sabha and Church. 22. In fact, the documents filed along with M.P(MD)No.3 of 2014 have created entirely a different cause of action and the same cannot be accepted as it is without adducing rival oral evidence and at the most, this Court is of the view that on the basis of documents filed along with M.P(MD)No.3 of 2014, the review petitioner can file a separate suit for requisite relief against the respondent/first defendant subject to applicability of law. 23. 23. The entire argument putforth on the side of the review petitioner is based upon the decision in Kamlesh Verma v. Mayawati & Others reported in 2013(4) CTC 882. 24. In State of West Bengal and Others v. Kamal Sengupta and another reported in (2008)8 Supreme Court Cases 612, the Hon'ble Supreme Court has held that Order 47, Rule 1 of the Code of Civil Procedure, 1908, cannot be invoked, since there is no mistake or error on the face of record. Further it is held that discovery of new and important matter or evidence must be of such character and if it had been produced earlier, it would have altered the Judgment under review. 25. In the instant case, it has already been pointed out that the specific contention putforth on the side of the review petitioner is that the defendants 1 and 2 are the workers of the Sabha mentioned in the plaint. 26. The documents filed along with M.P(MD)No.3 of 2014 are subsequent in point of time and for establishing the fact mentioned therein, rival oral evidence is very much essential. Without giving opportunity to the respondent/first defendant, the Court cannot automatically come to a conclusion that the documents filed therein, are admissible in evidence. Further, it is observed earlier that the review petitioner can file a fresh suit on the basis of subsequent events for requisite relief and therefore the contentions putforth on the side of the review petitioner on the basis of documents filed along with M.P(MD)No.3 of 2014 cannot be accepted. 27. In the present petition initially it has been contended on the side of the review applicant that this Court has allowed the respondent/first defendant to take part in prayer subject to rules and conditions of the Sabha. In fact this Court has formed a compound sentence. In the initial portion of sentence, it has been clearly mentioned to the effect that subject to rules and conditions of the Sabha mentioned in the plaint and the same is also equally applicable to later portion of the sentence. Therefore viewing from any angle, the Review Application is not at all maintainable. 28. Before parting with this petition, it has become indefeasible to record the following aspects. Therefore viewing from any angle, the Review Application is not at all maintainable. 28. Before parting with this petition, it has become indefeasible to record the following aspects. As per the consistent dictums given by the Hon'ble Apex Court, for invoking Order 47, Rule 1 of the Code of Civil Procedure, 1908, the foremost requirement is that there must be an error apparent on the face of the order/Judgment. In Second Appeal(MD)No.114 of 2008, this Court has not passed any order contra to the reliefs sought for nor committed any error apparent on the face of record. Therefore it is quite clear that this Review Application is nothing, but a textbook example of frivolous proceeding. Under the said circumstances, this Review Application is liable to be dismissed with exemplary cost as stated infra. 29. In fine, this Review Application is dismissed with exemplary cost of Rs.25,000/-. Consequently, connected M.P(MD)No.2 of 2014 is dismissed.