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2015 DIGILAW 2918 (MAD)

Thomson v. Wilson Mathias

2015-08-31

M.DURAISWAMY

body2015
ORDER : This Court by its judgment dated 05.07.2011 dismissed the Second Appeals in S.A.Nos.352 and 353 of 2002. The appellant in S.A.No.352 of 2002 has filed the review application in Rev.Aplc.(MD)No.69 of 2013 and the appellants in the Second Appeal in S.A.No.353 of 2002 have filed the review application in Rev.Aplc.(MD)No.70 of 2013. This Court disposed of both the Second Appeals by a common judgment. Since the issues involved in both the review applications are one and the same, both the review applications are also disposed of by this common order. 2. The plaintiff in O.S.No.403 of 1961 on the file of the Principal District Munsif Court, Kuzhithurai filed the suit for redemption of mortgaged property. A preliminary decree was passed pursuant to the judgment and decree of this Court. Thereafter the plaintiff filed an application in I.A.No.631 of 1974 for passing of final decree before the Principal District Munsif, Kuzhithurai. The trial Court, relying upon Ex.C.7-Advocate Commissioner's plan, passed a final decree. Aggrieved over the passing of final decree passed by the trial Court, the sixth respondent in the final decree application preferred an appeal in A.S.No.90 of 1995 and the appellants in the Second Appeal in S.A.NO.353 of 2002 preferred an appeal in A.S.No.91 of 1995, on the file of the Subordinate Court, Kuzhithurai. The lower Appellate Court confirmed the judgment and decree passed in I.A.No. 631 of 1974. Aggrieved over the judgment and decree passed by the Courts below, the parties had filed the above referred two Second Appeals. 3.The trial Court, while passing final decree, found that the defendants are entitled to a sum of Rs.7,000/-towards the improvements made by them in the suit property. On appeal, the first Appellate Court enhanced the expenses incurred by the defendants from Rs.7,000/-to Rs.15,000/-. At the time of admission of the Second Appeals, the following substantial questions of law arose for consideration: “(a) Whether the judgments of the Courts below based on Ex.A.12, to which the appellants admittedly, are not parties are vitiated in law? On appeal, the first Appellate Court enhanced the expenses incurred by the defendants from Rs.7,000/-to Rs.15,000/-. At the time of admission of the Second Appeals, the following substantial questions of law arose for consideration: “(a) Whether the judgments of the Courts below based on Ex.A.12, to which the appellants admittedly, are not parties are vitiated in law? (b) Having rejected Ex.C.6, the Commissioner's report on the value of the improvements made are the judgments of the Courts below on the value of the improvements made are without legal material?” 4.The Courts below while passing final decree relied upon Ex.A.12-copy of the final decree passed in the suit in O.S.No.1245 of 1956, dated 13.11.1958 and came to the conclusion that the measurements found in Ex.A.12 decree are correct measurements. Relying upon Ex.A.12-decree, the Courts below passed the final decree. The lower Appellate Court, elaborately took into consideration the measurements found in Ex.A.12 and also in Exs.C.6 and C.7 – Advocate Commissioner's report and plan, marked in the final decree application and ultimately came to the conclusion that the measurements found in Ex.A.12 are correct. Further the lower Appellate Court also treated the plan annexed with Ex.A.12 decree as part and parcel of the final decree passed in I.A.No.631 of 1974. 5.The appellants in the Second Appeal contended that the lower Appellate Court ought to have fixed a higher amount towards the improvements made by them. This Court while dismissing the Second Appeals held that the defendants have not proved the said claim by any acceptable evidence with regard to the expenditure made by them for improving the suit property. With regard to the measurements of the suit property, this Court held that the appellants' contention was not supported by the pleadings. Even in the objections filed by them to Ex.C.6-Advocate Commissioner's report and Ex.C.7-Advocate Commissioner's plan, they did not dispute the measurements. This Court also took into consideration the contention raised by the appellants with regard to the fixation of the value for the trees and improvements made by them and found that the expenses incurred towards the improvements made by the appellants was rightly fixed at Rs.15,000/-by the lower Appellate Court. That apart, this Court also found that the defendants have not placed any evidence to substantiate their contention with regard to the value of the trees and the expenses incurred towards improvements. That apart, this Court also found that the defendants have not placed any evidence to substantiate their contention with regard to the value of the trees and the expenses incurred towards improvements. Ultimately this Court confirmed the concurrent findings of the Court below and dismissed both the Second Appeals. 6.Aggrieved over the common judgment passed in the Second Appeals in S.A.Nos.352 and 353 of 2002, the appellants preferred an appeal in Special Leave to Appeal (Civil) Nos.28320-28321 of 2011 before the Honourable Supreme Court and by order dated 31.10.2011, while dismissing the petitions gave liberty to the petitioners therein to move this Court for review, if so advised. However, the Honourable Apex Court observed that the Honourable Supreme Court is not making any observation on the merits of such review petition, if any is filed before this Court. 7.Mr.K.N.Thampi, learned Counsel appearing for the review applicant in Rev.Aplc(MD)No.69 of 2013 submitted that as per Section 5 of the Travancore-Cochin Compensation for Tenants Improvements Act, 1956, the review applicants are entitled to higher compensation. However, this contention raised by the learned Counsel for the review applicant cannot be accepted for the reason that this aspect has been canvassed before this Court for the first time, that too only in the review application. 8.Mrs.N.Krishnaveni, learned Counsel appearing for the review applicants in Rev.Aplc(MD)No.70 of 2013, submitted that the observation of this Court that the point raised by the learned Counsel for the appellants in the Second Appeal with regard to the measurements of the land was not supported by pleadings, may not be correct observation for the reasons that the appellants did not have an opportunity to raise the said pleadings and therefore, the said contention was not raised in the pleadings. 9.This Court has observed that the contention raised by the appellants was not supported by the pleadings. Factually the observation given by this Court is correct. Whether the appellants had an opportunity to raise such pleadings or not is a different issue. Therefore, this cannot be termed as an error apparent on the face of the record warranting interference in the review applications. 10.Mr.S.Meenakshi Sundaram, learned Counsel appearing for the respondents submitted that the review applications cannot be allowed to re-argue the appeals in the review applications. Further the learned Counsel submitted that this Court had categorically discussed both the substantial questions of law in paragraph No.6 of the judgment. 10.Mr.S.Meenakshi Sundaram, learned Counsel appearing for the respondents submitted that the review applications cannot be allowed to re-argue the appeals in the review applications. Further the learned Counsel submitted that this Court had categorically discussed both the substantial questions of law in paragraph No.6 of the judgment. The learned Counsel also submitted that since this Court had taken into consideration the substantial questions of law that arose for consideration in the Second Appeals in paragraph No.6 of the judgment, there is no necessity for reviewing the judgment. 11.In support of his contentions, the learned Counsel appearing for the respondents relied upon the following judgments: (I) In Kamlesh Verma Vs. Mayawati and Others reported in (2013) 8 Supreme Court Cases 320, wherein the Honourable Supreme Court held as follows: “12. This Court has repeatedly held in various judgments that the jurisdiction and scope of review is not that of an appeal and it can be entertained only if there is an error apparent on the face of the record. A mere repetition through different counsel, of old and overrueld arguments, a second trip over ineffectually covered grounds or minor mistakes of inconsequential import are obviously insufficient. This Court in Sow Chandra Kante V. SK . Habib reported in (1975) 1 SCC 674 held as under: “1. Mr.Daphtary, learned Counsel for the petitioners, has argued at length all the points which were urged at the earlier stage when we refused special leave thus making out that a review proceedings virtually amounts to a rehearing. May be, we were not right in refusing special leave in the first round; but, once an order has been passed by this Court, a review thereof must be subject to the rules of the game and cannot be lightly entertained. A review of a judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility. A mere repetition, through different counsel, of old and overruled arguments, a second trip over ineffectually covered ground or minor mistakes of inconsequential import are obviously insufficient. The very strict need for compliance with these factors is the rationale behind the resistance of counsel's certificate which should not be a routine affair or a habitual step. A mere repetition, through different counsel, of old and overruled arguments, a second trip over ineffectually covered ground or minor mistakes of inconsequential import are obviously insufficient. The very strict need for compliance with these factors is the rationale behind the resistance of counsel's certificate which should not be a routine affair or a habitual step. It is neither fairness to the court which decided nor awareness of the precious public time lost what with a huge backlog of dockets waiting in the queue for disposal, for counsel to issue easy certificates for entertainment of review and fight over again the same battle which has been fought and lost. The Bench and the Bar, we are sure, are jointly concerned in the conservation of judicial time for maximum use. We regret to say that this case is typical of the unfortunate but frequent phenomenon of repeat performance with the review label as passport. Nothing which we did not hear t h e n has been heard n o w , except a couple of rulings on points earlier put forward. May be, as counsel now urges and then pressed, out order refusing special leave was capable of a different course. The present stage is not a virgin ground but review of an earlier order which has the normal feature of finality”. (II) In M.Kamala Kannan and Others Vs. M. Manikandan reported in 2014(3) CTC 28, wherein while dealing with the review application, I had an occasion to hold that a Review Petition cannot be construed to be an Appeal in disguise and rehearing of the matter is impermissible in review application. Further I held that even in the case of an erroneous decision, Review is not permissible and the judgment can be reviewed only when there is some mistake or error apparent on the face of the record. Further I held that the error on the face of the record must be such an error which must strike one on mere looking at the records and would require any long drawn process of reasoning. 12.In the case on hand, as rightly contended by the learned Counsel for the respondents, the substantial questions of law raised in paragraph No. 4 of the judgment were taken into consideration and dealt with in paragraph No.6 of the judgment. Further the review applicants cannot reargue the matter on merits. 12.In the case on hand, as rightly contended by the learned Counsel for the respondents, the substantial questions of law raised in paragraph No. 4 of the judgment were taken into consideration and dealt with in paragraph No.6 of the judgment. Further the review applicants cannot reargue the matter on merits. When this Court had considered both the substantial questions of law that arose for consideration in the Second Appeals in paragraph No.6 of the judgment, if at all the review petitioners are aggrieved over the said findings, the remedy available to them is to file an appeal and not review. In the case on hand, the review petitioners have also filed the appeals before the Honourable Apex Court and the Apex Court had dismissed the appeals preferred by the review petitioners. 13.While dismissing the Second Appeals this Court observed that the suit is pending from the year 1961 and even after 50 years from the date of filing of the suit, the legal representatives of the deceased plaintiff are not in a position to redeem the property. It is unfortunate that, now, even after 54 years, the dispute has not reached finality and the legal representatives of the deceased plaintiff are not in a position to redeem the property. 14.In these circumstances I do not find any error apparent on the face of the record to interfere with the findings of this Court. The review petitions do not come within the purview of Order 47 Rule 1 of the Code of Civil Procedure, warranting review of the judgment. The judgments relied upon by the learned Counsel for the respondents squarely apply to the facts and circumstances of the present case. In these circumstances both the review petitions are devoid of merits and the same are liable to be dismissed. Accordingly, both the review petitions are dismissed. No costs.