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2015 DIGILAW 3362 (MAD)

M. Thangaraj v. N. Arumugam

2015-10-12

M.DURAISWAMY

body2015
ORDER : The appellants in the Second Appeal in S.A.No.713 of 1991 has filed the above Review Application to review the Judgment and Decree passed in the above Second Appeal on 12.07.2002. 2. The respondent/plaintiff filed the suit in O.S.No.356 of 1982 on the file of the District Munsif Court, Sivagangai for specific performance. In the plaint, the respondent/plaintiff has stated that he entered into an agreement of sale with the appellants/defendants on 29.06.1982 agreeing to purchase the suit property for a sum of Rs.2,000/-and paid the said sum of Rs.2,000/- on the date of agreement itself. Further, the respondent/plaintiff had stated that the parties agreed to have one year time for the execution of the sale deed. Since the appellants/defendants failed to execute the sale deed in favour of the respondent/plaintiff, the respondent/plaintiff filed the suit in O.S.No.356 of 1982 for specific performance on 05.10.1982. The appellants/defendants filed their written statement and contested the suit. 3. The trial Court, taking into consideration the oral and documentary evidences let in by both sides, dismissed the suit. Aggrieved over the dismissal of the suit, the plaintiff preferred an appeal in A.S.No.82 of 1990 on the file of the Sub Court, Ramanathapuram at Madurai and the lower Appellate Court reversed the Judgment and Decree of the trial Court and decreed the suit. Aggrieved over the Judgment and Decree of the lower Appellate Court, the defendants preferred the above Second Appeal. 4. The appellants/defendants raised three substantial questions of law in the memorandum of grounds in the Second Appeal, which read as follows:- “a) Whether the suit filed by the plaintiff is not liable to be dismissed in the absence of the specific averment in the plaint that the plaintiff had always been ready and willing to perform the essential terms of the contract? b) Whether the findings of the lower Appellate Court as regards Ex.A.1 can be sustained in law in view of the admitted facts and circumstances of the case? c) Whether Ex.A.1 can be held to be valid in law when it related to entire extent of joint family property in which the plaintiff, the first defendant and their father had undivided interest?. c) Whether Ex.A.1 can be held to be valid in law when it related to entire extent of joint family property in which the plaintiff, the first defendant and their father had undivided interest?. However, this Court, while admitting the Second Appeal, took into consideration the following substantial question of law for consideration:- “Whether the suit filed by the plaintiff is not liable to be dismissed in the absence of the specific averment in the plaint that the plaintiff had always been ready and willing to perform the essential terms of the contract?” 5. When the Second Appeal was argued for final disposal, this Court gave a finding that the plaintiff was ready and willing to perform his part of the contract as contemplated under Section 16(c) of the Specific Relief Act and therefore, found that the plaintiff is entitled for a decree for specific performance. While dismissing the Second Appeal, this Court directed the respondent/plaintiff to pay a sum of Rs.2,000/- to the appellants/ defendants on the date of execution of the sale deed. 6. Aggrieved over the Judgment and Decree passed in the above Second Appeal, the defendants preferred an appeal before the Honourable Supreme in S.L.P. (Civil) C.C.No.2387 of 2003. However, the defendants withdrew the Special Leave Petition and the Honourable Supreme Court dismissed the Special Leave Petition as withdrawn on 13.03.2003. Before the Apex Court, a representation was made on behalf of the defendants stating that the defendants could be advised to file a review petition on the ground that all the legal issues arising for decision in the case have not been disposed of by this Court. Further, the Apex Court had not expressed any opinion on the merits of the plea advanced on behalf of the defendants and dismissed the Special Leave Petition as withdrawn. After the dismissal of the Special Leave Petition by the Apex Court, now the defendants have filed the review application to review the Judgment dated 12.07.2002. 7. Mr. V.R. Shanmuganathan, learned counsel appearing for the review applicants raised the following two grounds:- i) when the suit property is not belong to the defendants in entirety, the lower Appellate Court should not have decreed the suit filed by the respondent/plaintiff for specific performance in respect of the entire suit property? 7. Mr. V.R. Shanmuganathan, learned counsel appearing for the review applicants raised the following two grounds:- i) when the suit property is not belong to the defendants in entirety, the lower Appellate Court should not have decreed the suit filed by the respondent/plaintiff for specific performance in respect of the entire suit property? ii) The plaintiff failed to prove his willingness to perform his part of the contract inspite of the same, the lower Appellate Court had decreed the suit, which was also confirmed by this Court. 8. Mr. V.R. Shanmuganathan, learned counsel appearing for the review applicants further submitted that this Court had not given any finding with regard to the share of the property contended by the defendants and with regard to the willingness aspect, which was also confirmed by this Court without any evidence let in by the plaintiff before the trial Court. 9. Countering the submissions made by the learned counsel for the review applicants, Mr. S. Srinivasa Raghavan, learned counsel appearing for the respondent submitted that this Court had taken into consideration the available evidence let in by the plaintiff and rightly came to the conclusion that the plaintiff had proved his readiness and willingness to perform his part of the contract and confirmed the findings of the lower Appellate Court. Further, the learned counsel submitted that so far as the share in the property contended by the defendants is concerned, the same was not raised as a substantial question of law before this Court, while arguing the Second Appeal. 10. In these circumstances, the learned counsel appearing for the respondent submitted that the review applicants have not made out a case under Order 47 Rule 1 of the Code of Civil Procedure, 1908 warranting interference by way of review. 11. On a careful consideration of the materials available on record, the submissions made by the learned counsel on either side and on a perusal of the Judgment of this Court dated 12.07.2002, it could be seen that this Court, taking into consideration the above mentioned question of law and gave a finding that the plaintiff was ready and willing to perform his part of the contract as contemplated under Section 16(c) of the Specific Relief Act. If according to the review applicants, this finding is an erroneous one, the remedy available to the review applicants is to file an appeal as against the said finding and not a review petition under Order 47 Rule 1 of the Code of Civil Procedure, 1908. The Honourable Apex Court has repeatedly held that a Review Application should not be construed as an appeal in disguise and that the Review Application cannot be filed to rectify an erroneous decision. The Review Application is maintainable only if there is an error apparent on the face of the record under Order 41 Rule 1 of the Code of the Civil Procedure. 12. With regard to the question of law raised by the appellants is concerned, one question of law has arisen for consideration in the Second Appeal. The other two grounds cannot be construed as substantial questions of law. The grounds (b) and (c) cannot be termed as a substantial questions of law. 13. In these circumstances, this Court has rightly taken into consideration the first substantial question of law for consideration in the Second Appeal and gave a finding on that question of law. 14. As already stated, according to the review applicants, if the findings given by this Court with regard to the said question of law is an erroneous finding, the remedy available to the review applicants is to file an appeal before the Honourable Supreme Court. 15. On a perusal of the plaint averment, it could be seen that the plaintiff had pleaded that he was ready and willing to perform his part of the contract. The lower Appellate Court also held that the plaintiff was ready and willing to perform his part of the contract, which was also confirmed by this Court. In these circumstances, since I do not find any error apparent on the face of the record warranting interference in the Review Application, the Review Application is liable to be rejected. Therefore, the Review Application is devoid of merits and the same is dismissed. No costs. Consequently, connected Miscellaneous Petition is also dismissed.