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2015 DIGILAW 2684 (MAD)

L. Nachiappan v. Anthonymuthu

2015-07-31

K.K.SASIDHARAN

body2015
ORDER : This Review Application is at the instance of the petitioner in C.R.P.(PD)(MD)No.2340 of 2013 and the prayer is to review and recall the order dated 16 June, 2015. 2. This Court dismissed the Civil Revision Petition filed by the petitioner challenging the order appointing an Advocate Commissioner by the Trial Court. It is the said order which is sought to be reviewed at the instance of the unsuccessful revision petitioner. 3. The learned Senior Counsel for the petitioner contended that there is no need for appointment of Advocate Commissioner, in view of the exhibits produced by the petitioner to show that the boundaries are clear and there is no discrepancy in measurement. According to the learned Senior Counsel, the Trial Court on 07 December, 2013 made the interim order absolute by rendering a finding, accepting the contention of the petitioner. However, while allowing the application in I.A.No.424 of 2013, filed by the respondents, none of those findings were referred to. The learned Senior Counsel further contended that the petitioner has produced several documents and there was absolutely no reference with respect to those documents, in the order in I.A.No.424 of 2013. The learned Senior Counsel contended that the suit in question is not a title suit and as such, there is no need for appointment of Advocate Commissioner. It is the contention of the learned Senior Counsel that while dismissing the Civil Revision Petition, this Court failed to consider the background facts and the relief claimed in the suit. The learned Senior Counsel further contended that the learned Trial Judge has gone beyond the prayer made in the application by directing the Advocate Commissioner to measure the property already sold. The learned Senior Counsel, therefore, wanted the earlier order to be recalled by allowing the Civil Revision Petition. 4. The learned counsel for the respondents contended that in the schedule to the plaint, the petitioner has not disclosed the extent of property in his possession. According to the learned counsel, the petitioner purchased the first schedule property having 3 1/2 cents which is an undivided property. Similarly, he purchased 14 cents and the same is shown as second schedule property. The petitioner is claiming more extent than he is actually entitled to. According to the learned counsel, the respondents have disputed the boundaries and the re-survey number in their written statement. Similarly, he purchased 14 cents and the same is shown as second schedule property. The petitioner is claiming more extent than he is actually entitled to. According to the learned counsel, the respondents have disputed the boundaries and the re-survey number in their written statement. The learned counsel contended that the plaint is silent with respect to the boundary of the property and the total extent in the possession of petitioner. Finally, it is the contention of the learned counsel that appointment of Advocate Commissioner would clear the doubt and it would be in the interest of both the parties. 5. The suit in O.S.No.195 of 2013 was filed by the petitioner before the Additional District Munsif Court, Karaikudi. In the written statement, the respondents have disputed the boundary of the property. Similarly, the extent of the property in the possession of the petitioner is also under dispute. It is true that being the plaintiff, it is the duty of the petitioner to plead and prove his case. However, the learned Trial Judge was of the view that report and plan submitted by the Advocate Commissioner would be of immense help to the Court to resolve the controversy. 6. It is true that the Trial Court earlier passed an interim order in favour of the petitioner and the same was subsequently made absolute. It is also a matter of record that the order making the interim order absolute was passed on the very same day on which the application in I.A.No.424 of 2013 was allowed. 7. The Trial Court exercised its discretion and appointed an Advocate Commissioner. The Trial Court has given its own reasons in support of the order. This Court, having found that the order does not call for interference, as there was no error or illegality, dismissed the Civil Revision Petition. 8. The core question is as to whether the petitioner has made out a case to review the order and allow the Civil Revision Petition. 9. The petitioner, by way of this Review Application, seeks a fresh hearing of the Civil Revision Petition. The review jurisdiction is not intended for such purposes. The petitioner should plead and prove that his case would come within the four corners of Section 114 and Order 47 Rule 1 of Code of Civil Procedure. 10. 9. The petitioner, by way of this Review Application, seeks a fresh hearing of the Civil Revision Petition. The review jurisdiction is not intended for such purposes. The petitioner should plead and prove that his case would come within the four corners of Section 114 and Order 47 Rule 1 of Code of Civil Procedure. 10. The Supreme Court in Aribam Tuleshwar Sharma v. Aribam Pishak Sharma and others [ (1979) 4 SCC 389 ], considered the extent of review power and observed thus: “It is true as observed by this Court in Shivdeo Singh v. State of Punjab, there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of power of review. The power of review may be 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 there view 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.” 11. The Supreme Court in M/s.Northern India Caterers (India) Ltd., v. Lt.Governor of Delhi [ (1980) 2 SCC 167 ] observed thus: “...that it is beyond dispute that a review proceeding cannot be equated with the original hearing of the case and the finality of the judgment delivered by the Court will not be reconsidered except "where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility.” 12. None of the grounds raised by the petitioner would justify the exercise of review jurisdiction. I am, therefore, of the view that there is absolutely no merit in the Review Application. 13. None of the grounds raised by the petitioner would justify the exercise of review jurisdiction. I am, therefore, of the view that there is absolutely no merit in the Review Application. 13. In the upshot, I dismiss the Review Application. Consequently, the connected miscellaneous petition is also dismissed.