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2021 DIGILAW 2494 (MAD)

Perumal (Died) v. Karuppaiah

2021-09-22

T.KRISHNAVALLI

body2021
ORDER : (Prayer : Review Petition has been filed under Order 47 r/w Rule 1 & 2 and Section 114 of the Civil Procedure Code, to review the petition as against the order in S.A(MD)No.884 of 2003, dated 25.02.2019 on the file of this Court. Review Petition has been filed under Order 47 r/w Rule 1 & 2 and Section 114 of the Civil Procedure Code, to review the petition as against the order in S.A.(MD)No.785 of 2008, dated 25.02.2019 on the file of this Court.) 1. These Review Applications are directed against the common judgment passed by this court in S.A(MD)Nos.884 of 2003 and 785 of 2008, dated 25.02.2019. 2. The case of the petitioners in THE Review Application (MD)No.18 of 2020 is that the husband of the 1st petitioner Perumal filed the suit O.S No.281 of 2004 on the file of the Additional District Munsif Court, Pudukkottai for the relief of declaration and permanent injunction in respect of the suit schedule properties against the respondent herein. The learned Additional District Munsif, Pudukkottai, by judgment, dated 27.06.2005 dismissed the suit. Against which, the 1st petitioner's husband preferred an appeal in AS No.60 of 2006 on the file of the Subordinate Judge, Pudukkottai, which was also dismissed on 17.07.2007. Aggrieved over the same, Second Appeal was preferred before this Court. Before arguing in the Second Appeal, the husband of the 1st petitioner was expired on 05.01.2019. However, the Second Appeal was disposed, on 25.02.2019. Since the petitioners are not brought on record as legal heirs of the deceased Perumal, the petitioners preferred review application against the order passed in the second appeal. 3. The case of the petitioners in the Review Application (MD)No.19 of 2020 is that the husband of the 1st petitioner Perumal filed the suit O.S No.218 of 2004 on the file of the Additional District Munsif Court, Pudukkottai, for the relief of declaration and permanent injunction in respect of the suit schedule properties against the respondents herein. The learned Additional District Munsif, Pudukkottai, by judgment, dated 27.06.2005 dismissed the suit. Against which, the 1st petitioner's husband preferred an appeal in AS No.60 of 2006 on the file of the Subordinate Judge, Pudukkottai, which was also dismissed, on 17.07.2007. Aggrieved over the same, Second Appeal was preferred before this Court. Before arguing in the Second Appeal, the husband of the 1st petitioner was expired, on 05.01.2019. Against which, the 1st petitioner's husband preferred an appeal in AS No.60 of 2006 on the file of the Subordinate Judge, Pudukkottai, which was also dismissed, on 17.07.2007. Aggrieved over the same, Second Appeal was preferred before this Court. Before arguing in the Second Appeal, the husband of the 1st petitioner was expired, on 05.01.2019. However, the Second Appeal was disposed, on 25.02.2019. Since the petitioners are not brought on record as legal heirs of the deceased appellant Perumal, the petitioners preferred review application against the order passed in the second appeal. 4. Heard the learned counsel appearing on either side and perused the materials available on record. 5. The learned counsel appearing for the petitioners/appellants submitted that it was not brought to the notice of this court about the death of the appellant Perumal, who expired on 05.01.2019 even before the final argument of the second appeal on 10.01.2019 and it is settled law that when either the appellant or the respondent died before the conclusion of the final argument, the legal heirs might have been brought on record for effective adjudication and in this case, Ex.B2 clearly shows that the possession of the disputed land had been handed over to the petitioners/appellants on the date of exchange deed itself, but it was not properly appreciated by this Court at the time of passing of the judgment in the second appeal and hence, the judgment passed by this court in the second appeal may be reviewed. For that, the learned counsel appearing for the petitioners/appellants submitted the following rulings:- (1) Unreported decision of the Hon'ble Apex Court in the case of Amba Bai and others Vs. Gopal and others (Appeal (Civil) 4156of 1998, dated 08.05.2001. (2) 1995 SCC (5) 115 (N.P.Thirugnanam (D) Lrs Vs. Dr.R.Jagan Mohan Rao & others): and (3) 2001(5) ALD 484 ( Golla Krishna Murthy Vs. Golla Yellaiah (Died) By Lrs and others. 6. On the other hand, the learned counsel appearing for the respondents/respondents submitted that before pronouncing the judgment, the death of the appellant Perumal was not brought to the knowledge of this court, hence, this court correctly passed the judgment. Further, there is no error or mistake in the judgment of this court and hence, it is not necessary to review the judgment passed by this court. Further, there is no error or mistake in the judgment of this court and hence, it is not necessary to review the judgment passed by this court. For that, the learned counsel appearing for the respondents submitted the following rulings:- (1) (1996)6 SCC 755 (M.Poornachandran and another Vs. State of Tamil Nadu and others): (2) 2020(2) CTC 142 ( M.Karuppuraj Vs. M.Ganesan); (3)2016(1)MWN (Civil) 403 ( Velamman Vs. M.Palaniswamy); (4).CDJ 2013 APHC 986 (Annam Uttarudu (died) by Lrs and others Vs. Annam Venkateswara); and (5).2015(3) TLNJ 426 (Civil) (K.Narayanaswamy Pillai Vs. Smt.Kannammal) 7. In this case, after hearing the argument of both sides, the second appeals were reserved for judgment on 10.01.2019 and the common judgment was pronounced on 25.02.2019. In the review applications, the petitioners stated that the appellant Perumal died on 05.01.2019 and hence, the common judgment passed by this court in the second appeal will not bind them. It is to be noted here that till 25.02.2019, said fact was not brought to the knowledge of this court that the appellant Perumal died on 05.01.2019. 8. Rule (1) of Order 47 of the Civil Procedure Code, reads as follows:- (1) Any person considering himself aggrieved- (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred. (b) by a decree or order from which no appeal is allowed, or (c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order. 9. If the review application is found to be lack of the above said ingredients, then it is liable to be dismissed. 10. 9. If the review application is found to be lack of the above said ingredients, then it is liable to be dismissed. 10. The Hon'ble Apex Court in Moran Mar vs. Mar Poulose [1954 SC 526: LNIND 1954 SC 100], has enumerated the following three principles for entertaining a review application :- (i) Discovery of new and important matter or evidence, which after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or made; (ii) Mistake or error apparent on the face of the record; (iii) For any other sufficient reasons. 11. In the judgment reported in 2009(5) CTC 365 in the case of Inderchand Jain (D) through Lrs vs. Motilan (D) through L.Rs., the Hon'ble Apex Court has held as follows:- “25. The High Court had rightly noticed the review jurisdiction of the Court, which is as under: “The law on the subject - exercise of power of review, as propounded by the Apex Court and various other High Courts may be summarized as hereunder: (i) Review proceedings are not by way of Appeal and have to be strictly confined to the scope and ambit of Order 47, Rule 1, C.P.C. (ii) Power of review may be exercised when some mistake or error apparent on the fact of record is found. But error on the face of 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 the points where there may be conceivable be two opinions. (iii) Power of review may not be exercised on the ground that the decision was erroneous on merits. (iv) Power of review can also be exercised for any sufficient reason which is wide enough to include a misconception of fact or law by a Court or even an Advocate. (v) An Application for review may be necessitated by way of invoking the doctrine “actus curiae neminem gravabit” 12. In the judgment reported in (2010)2 MLJ 1177 in the case of M.Jagadeesan vs. K.Selvam and others, this court has held as follows:- “27. (v) An Application for review may be necessitated by way of invoking the doctrine “actus curiae neminem gravabit” 12. In the judgment reported in (2010)2 MLJ 1177 in the case of M.Jagadeesan vs. K.Selvam and others, this court has held as follows:- “27. Be that as it may, on a careful consideration of respective contentions, though this Court is A Court Of Record with plenary powers, yet this Court is of the considered view that the power of Review is restricted under Code of Civil Procedure and by means of review substantial reliefs cannot be asked for and in the grab/guise of review, this Court cannot rehear the parties on the point of law afresh and also there can be no reappraisal and re-appreciation of evidence based on the overall assessment and facts of the matters in issue and moreover the reappraisal of entire evidence on record for finding out the errors will amount to exercise of Appellate Jurisdiction, which is not permissible in law and viewed in that perspective, the review applications are not maintainable and they fail.” 13. In the light of the decisions cited above, I do not find any grounds to review the order. 14. In the result, both Review Application are dismissed without costs.