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2018 DIGILAW 951 (MAD)

N. Kerubakaran v. B. Manoharan

2018-03-08

M.VENUGOPAL, S.VAIDYANATHAN

body2018
JUDGMENT : S. Vaidyanathan, J. 1. The petitioners have come forward with these W.M.Ps. seeking to grant leave/permission to file Review Petitions to review the order dated 05.02.2018 in W.P.No.28791 of 2017. 2. The petitioners submitted that even though they are not the owners of the properties and that the properties originally belonged to one Chakrapani Mudaliar, they cannot be evicted and that they are in possession of the properties for more than three/four decades and that the Writ Petitioner-B.Manoharan ought to have approached the Civil Court seeking appropriate orders. According to the petitioners, as stated supra, they are there in the properties for more than three/four decades and the petitioners have stated that they have been paying necessary electricity charges, possessing family cards, voter's I.D. card, etc. 3. From the documents produced before this Court, it is clear that all the documents are after judgment and decree of the Civil Court, dated 30.11.1996 in O.S.No.1289 of 1987 on the file of the District Munsif Court, Poonamallee. Even assuming that the petitioners do possess the documents, namely ration cards, etc., prior to the said judgment and decree, it is admitted that they are not the owners of the properties. As there is judgment and decree stated supra, dated 30.11.1996 in O.S.No.1289 of 1987 by the District Munsif Court, Poonamallee, which has become final, wherein the said Chakrapani Mudaliar was granted a decree of permanent injunction restraining the defendants, their men, agents and servants from trespassing into the suit property and making any construction in the suit property. 4. This Court, while passing the order dated 05.02.2018 in W.P.No.28791 of 2017, taking note of the fact that for no fault of the encroachers, their children should not be affected, disposed of the said Writ Petition in W.P.No.28791 of 2017, by observing as follows in paragraph 6: "6. Though the encroachers are not made parties before this Court and that there is possibility of the children of those persons who may be studying the said school, we make it clear that while taking action under the provisions of the Tamil Nadu Land Encroachment Act or under any other enactment, the electricity supply to those encroachers must be disconnected with effect from 14.06.2018. In this regard, we suo-motu implead the Assistant Engineer, TANGEDCO/TNEB, Kumananchavadi Range, Senneerkuppam Village, Poonamallee, Chennai-56, as fifth respondent in this Writ Petition." 5. In this regard, we suo-motu implead the Assistant Engineer, TANGEDCO/TNEB, Kumananchavadi Range, Senneerkuppam Village, Poonamallee, Chennai-56, as fifth respondent in this Writ Petition." 5. Under the guise of seeking leave/permission to file Review Petitions, the petitioners are trying to knock out the said judgment and decree of the Civil Court in O.S.No.1289 of 1987, which has already become final. 6. The basic principle to entertain a Review Application under Order 47 Rule 1 C.P.C. is to correct the errors, but not to substitute a view. The judgment under review cannot be reversed (or) altered taking away the rights declared and conferred by the Court under the said judgment; once a judgment is rendered, the Court becomes functus-officio and it cannot set aside its judgment or the decree; no inherent powers of review were conferred on the Court; the review Court cannot look into the trial Court judgment; it can look into its own judgment for limited purpose to correct any error or mistake in the judgment pointed out by the review petitioner, without altering or substituting its view in the judgment under review; the review Court cannot entertain the arguments touching the merits and demerits of the case and cannot take a different view disturbing the finality of the judgment; the review cannot be treated as appeal in disguise, as the object behind review is ultimately to see that there should not be miscarriage of justice and shall do justice for the sake of justice only and review on the ground that the judgment is erroneous cannot be sustained. 7. In "Meera Bhanja vs. Nirmala Kumari Choudhury” reported in ( 1995 (1) SCC 170 , the Supreme Court, while considering the scope of the power of review of the High Court under Order 47, Rule 1, C.P.C., held as under: "The review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47, Rule 1 C.P.C. The review petition of error apparent on the face of the record and not on any other ground. An error apparent on the face of the record must be such an error which must strike one on mere looking at the record and would not require any long-drawn process of reasoning on points where there may conceivably be two opinions. An error apparent on the face of the record must be such an error which must strike one on mere looking at the record and would not require any long-drawn process of reasoning on points where there may conceivably be two opinions. The limitation of powers on court under Order 47, Rule 1, C.P.C. is similar to jurisdiction available to the High Court while seeking review of the orders under Article 226." 8. Further, the Supreme Court in the decision reported in 2013 (8) SCC 320 (Kamlesh Verma Vs. Mayawati), considered the scope of the review jurisdiction and summarised the factors as to when the review will be maintainable and when the review will not be maintainable and the same reads as follows: "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 the record; (iii) Any other sufficient reason. The words "any other sufficient reason" have been interpreted in Chhajju Ram Vs. Neki ( (1921-22) 49 IA 144 : (1922) 16 LW 37 : AIR 1922 PC 112 ) and approved by this Court in Moran Mar Basselios Catholicos Vs. Most Rev. Mar Poulose Athanasius ( AIR 1954 SC 526 : (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. ( (2013) 8 SCC 337 : 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, undermines its soundness or results in miscarriage of justice. (v) A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error. (iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice. (v) A review is by no means an appeal in disguise whereby an erroneous decision is reheard 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." 9. Moreover, a Review Application merely cannot be entertained, following the judgment of the Supreme Court reported in 1997 (9) SCC 736 (Tamil Nadu Electricity Board Vs. N.Raju Reddiar), wherein in paragraph 1, it has been observed as follows: "1. ... ..... When an appeal/special leave petition is dismissed, except in rare cases where error of law or fact is apparent on the record, no review can be filed; that too by the Advocate-on-Record who neither appeared nor was party in the main case. It is salutary to note that the court spends valuable time in deciding a case. Review petition is not, and should not be, an attempt for hearing the matter again on merits. Unfortunately, it has become, in recent time, a practice to file such review petitions as a routine; that too, with change of counsel, without obtaining consent of the Advocate-on-Record at earlier stage. This is not conducive to healthy practice of the Bar which has the responsibility to maintain the salutary practice of profession. ... " 10. Further, in another decision of the Supreme Court reported in 2014 (5) SCC 75 (Subramanian Swamy Vs. State of T.N), it has been observed in paragraph 52 as follows: "52. ... ... This is not conducive to healthy practice of the Bar which has the responsibility to maintain the salutary practice of profession. ... " 10. Further, in another decision of the Supreme Court reported in 2014 (5) SCC 75 (Subramanian Swamy Vs. State of T.N), it has been observed in paragraph 52 as follows: "52. ... ... 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. (Vide - Rajender Kumar Vs. Rambhai - 2007 (15) SCC 513 : 2010 (3) SCC (Cri) 584 : AIR 2003 SC 2095 )." 11. Further, in respect of filing a review petition, it has to be observed that an error on the face of record must be such an error, which must strike one or mere looking at the record and would not require any long drawn process of reasoning. The power of Review is not to be confused with an Appeal in disguise, which enables an Appellate Court to correct an erroneous decision by the process of "Rehearsing and Corrected". Review and Appeal cannot go together and Re-arguments in a case are not permissible in Review. 12. Even without going into the Review aspect, as the petitioners herein are encroachers, they have no locus-standi, more particularly, when the judgment and decree, dated 30.11.1996 in O.S.No.1289 of 1987 by the District Munsif Court, Poonamallee, has attained finality. 13. For all the reasons stated above, leave/permission to file Review Applications cannot be granted to the petitioners. Accordingly, W.M.P.Nos.6410 to 6414 of 2018 are dismissed. Consequently, Review Application S.Rs. are rejected. No costs.