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2018 DIGILAW 920 (MAD)

S. Backiyalakshmi v. P. Ganesan

2018-03-07

J.NISHA BANU

body2018
JUDGMENT : 1. This Review application has been field by the respondent in C.R.P.(MD)No.1835 of 2017, as against the order passed in C.R.P.(MD)No.1835 of 2017, dated 16.02.2018. 2. I have considered the above submissions made by the learned counsel appearing on either side and perused the available records carefully. 3. Before venturing into any discussion on the rival contentions, I may point out that the power of this Court in matters of review is very limited. Such power can be exercised only when there is error apparent on the face of the record or in the event an order is not reviewed, it would amount to miscarriage of justice. For the said proposition, I may usefully refer to the Judgment of a Division Bench of this Court, in Union of India, rep by the Senior Divisional Commercial Manager, Chennai, Vs. The Registrar, Central Administrative Tribunal, Madras Bench, wherein the Division Bench has made a complete survey of several Judgments of the Supreme Court, on this question, and has ultimately, in Paragraph No.10, held as follows:- "10. In yet another Judgment reported in 2013 (8) SCC 320 , [Kamlesh Verma Vs. Mayawati and others], the Hon'ble Apex Court, after examining various Judgments passed earlier has 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 there is an error apparent on the face of record. A mere repetition through different counsel, of old and overrulled arguments, a second trip over ineffectually covered grounds or minor mistakes of inconsequential import are obviously insufficient......." In the above Judgment, the Hon'ble Apex Court has laid down the principles as under: "19. Review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order XL VII Rule 1 of CPC. In review jurisdiction, mere disagreement with the view of the Judgment cannot be the ground for invoking the same. As long as the point is already dealt with and answered, the parties are not entitled to challenge the impugned Judgment in the guise that an alternative view is possible under the review jurisdiction. Summary of the principles: 20. Thus, in view of the above, the following grounds of review are maintainable, as stipulated by the statute: 20.1 When the review will be maintainable:- (i). Summary of the principles: 20. Thus, in view of the above, the following grounds of review are maintainable, as stipulated by the statute: 20.1 When the review will be 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 record; (iii). Any other sufficient reason. The words 'any other sufficient reason" has been interpreted in Chhajju Ram Vs. Neki, AIR 1922 PC 112 and approved by this Court in Moran Mar Basselios Catholicos Vs. Most Rev.Mar Poulose Athanasius & others [1955] 1 SCR 520, to mean, "a reason sufficient on grounds at least analogous to those specified in the rule". The same principles have been reiterated in Union of India Vs. Sandur Manganese & Iron Ores Ltd., Ors., JT (2013) 8 SC 275. 20.2. When the review will not be maintainable:- (i) A repetition of old and overruled argument is not enough to reopen concluded adjudications. (ii). Minor mistakes of inconsequential import. (iii). Review proceedings cannot be equated with the original hearing of the case. (iv). Review is not maintainable, unless the material error, manifest on the face of the order, undermine its soundness or results in miscarriage of justice. (v). A review is by no means an appeal in disguise whereby an erroneous decision is re-heard and corrected but lies only for patent error. (vi). The mere possibility of two views on the subject cannot be a ground for review. (vii). The error apparent on the face of the record should not be an error which has to be fished out and searched. (viii). The appreciation of evidence on record is fully within the domain of the appellate Court, it cannot be permitted to be advanced in the review petition. (ix). Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived." 4. The learned Counsel for the petitioner has brought to the notice of this Court Paragraph No.15 of the written statement, which is extracted as follows: "15. The relationship of the landlord and the tenant alone is material for the case and the defendant is the tenant of the suit properties. The learned Counsel for the petitioner has brought to the notice of this Court Paragraph No.15 of the written statement, which is extracted as follows: "15. The relationship of the landlord and the tenant alone is material for the case and the defendant is the tenant of the suit properties. She is personally cultivating the suit properties and as such she is in actual physical possession of the suit properties. Her possession is entitled to be protected by the Court." 5. The learned counsel for the petitioner would contend whether the finding is in consonance with the definition of “Cultivating Tenant” as per Section 2(aa) of the Tamil Nadu Cultivating Tenants Protection Act, 1959, which reads thus: “..means a person who contributes his own physical labour or that of any member of his family in the cultivation of any land belonging to another, under a tenancy agreement, express or implied.” 6. The learned counsel for the Petitioner would contend that the petitioner is aggrieved by the specific finding of this Court that there is no pleading that the respondent is contributing her physical labour and to that effect, he has relied on paragraph No.16 of the written statement, which reads thus: "16. ...... He has not claimed that he is cultivating the suit properties, he has not disclosed whether any other person is cultivating the suit properties on his behalf. Under such circumstances he cannot be in possession of any of the suit properties." 7. In my considered opinion, whether the provisions of the Tamil Nadu Cultivating Tenants Protection Act, 1959, are applicable to the case on hand, is a question of fact and that can be decided by the Trial Court only during trial. 8. At this juncture, the learned Counsel for the petitioner, in support of his contention, has relied on the judgment reported in 2017 (14) SCC 2017 in the case of J.Balaji Singh Vs. Diwakar Cole and others, wherein, at paragraph No.17, the Supreme Court has held as follows: "17. So far as the impugned order is concerned, the High Court, in our view, committed jurisdictional error when it also again examined the case on merits and set aside the judgment of the first appellate Court and restored the judgment of the trial Court. Diwakar Cole and others, wherein, at paragraph No.17, the Supreme Court has held as follows: "17. So far as the impugned order is concerned, the High Court, in our view, committed jurisdictional error when it also again examined the case on merits and set aside the judgment of the first appellate Court and restored the judgment of the trial Court. The High Court, in our opinion, should not have done this for the simple reason that it was only examining the legality of the remand order in an appeal filed under Order 43 Rule 1 (u) of the Code. Indeed, once the High Court came to a conclusion that the remand order was bad in law, then it could only remand the case to the first appellate Court with a direction to decide the first appeal on merits." 9. In my considered opinion, in the case on hand, the suit is ripe for trial and, therefore, the said Judgment relied on by the petitioner is not applicable to the present case on hand. 10. In view of the law laid down by the Division Bench of this Court in the Judgment, referred to above, I may mention that the review is not an appeal in disguise. I cannot consider any of the new materials, which were not placed before the Court, argued and not considered. Applying the said legal principles to the facts of the present case, if I analyze the grounds of review, I find no error apparent on the face of record in the order of this Court. Thus, the Review Application is liable to be dismissed. 11. Accordingly, this Review Application is dismissed. However, considering the facts and circumstances of the case, the learned Trial Judge is directed to dispose of the suit in O.S.No.108 of 2016 on merits and in accordance with law, within a period of three months from the date of receipt of a copy of this order. Consequently, the connected miscellaneous petition is closed.