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P. Lakshmanan(deceased) & Others v/s Kamalasaraswathi & Others

    Rev.Aplc(MD)No. 83 of 2016 in A.S(MD)No. 148 of 2008

    Decided On, 08 June 2018

    At, Before the Madurai Bench of Madras High Court


    For the Appellants: S. Subbiah, Senior Counsel. For the Respondents: ---------------

Judgment Text

(Prayer: Review Application filed under Order XL VII Rule 1 of the Civil Procedure Code praying this Court to review the judgement of this Court made in A.S(MD)No.148 of 2008, dated 18.04.2016.)

K. Ravichandrabaabu, J.

1. This Review Application is filed seeking to review the judgement and decree passed in A.S.(MD)No.148 of 2008 dated 18.04.2016 of the Division Bench of this Court, in an appeal arising out of a suit for partition.

2. The appellants are the legal heirs of the first defendant, who suffered a decree for partition before the Trial Court. The Division Bench of this Court after hearing both sides and considering the merits of the matter as well as the contentions raised by the respective parties, dismissed the appeal, thereby confirming the judgement and decree of the Trial Court.

3. Now the present Review Application is filed by raising two sets of grounds, one being what alleged to have transpired inside the Court at the time of hearing the appeal, according to the applicant, and the other being the contentions raised on merits of the matter once-again.

4. Mr.S.Subbiah, learned Senior Counsel appearing for the Review Applicant even though conceded before us that the grounds raised as to what transpired inside the Court at the time of hearing the appeal cannot be the grounds for review, however, submitted that still, this Court can consider the other grounds raised on merits in respect of item Nos.1 to 5 of the suit properties, which according to the Review Applicant, are not available for partition, since they are not joint family properties. Therefore, he contended that even though such contention was raised before the Division Bench in respect of such items, the same was not considered and therefore, now this Court can consider such issue once again and decide it on merits.

5. We have given our careful consideration to the submissions made by the learned Senior Counsel and perused the judgement rendered by the Division Bench of this Court, dated 18.4.2016.

6. First of all, We would like to place on record that the learned Judges, who constituted the Division Bench which delivered the judgment under review, have already retired. Even otherwise, we express our strong displeasure against the Review Applicant in raising certain contentions as if certain oral expression or view said to have been made by one of the learned judges at the time of hearing the appeal were in favour of the appellants. Needless to state that only the final judgement delivered by the Division Bench will speak the mind of the Court and not the alleged view or expression said to have been expressed during the course of argument. It is usual and not uncommon that the Court while hearing the matters would express some view or expression expressed and based on such view or expression would put some questions to one side, which may appear to be favouring the case of the other side. But actually it is not so. Needless to state that such questions are put to the parties only to elucidate and excavate the hidden facts or for clarifying certain doubts. After elucidating all the facts, the final decision is made ultimately reduces into the form of an order or judgment delivered by the Court. Therefore, no party can take advantage of any view or expression or question put by the Court to any of the party during the course of hearing and contend that in view of such view or expression or question put by the Court at the time of hearing the matter, the final decision rendered latter was wrong. Certainly what transpired during the course of hearing, unless and until they form part of the final order, cannot be raised as grounds for review. However, since the learned Senior Counsel for the Review Applicant fairly conceded to the above position and submitted that the review applicant is not pressing those grounds, we desist ourselves further from making any other observations against the conduct of the Review Applicant in this aspect.

7. The next contention is on the merits of the matter, more particularly, in respect of item Nos.1 to 5 of the properties. The grievance of the review applicant is that those items are not joint family properties and therefore, not available for partition and however, the Division Bench has not considered the said objection and dismissed the appeal even in respect of such properties.

8. Perusal of the judgment under review would show that the above contention of the applicant was referred to at para 6 of the judgment. Needless to say that non-consideration of a submission, even assuming to be true, cannot be a ground for review, more particularly, when the Division Bench, after extracting such contentions raised by the appellant, has come to the conclusion that the arguments of the learned counsel for the appellant were liable to be rejected. If such conclusion is not correct, the Review Applicant can only challenge the judgement and decree by way of further appeal and not by seeking review of the judgement. At this juncture, it is to be noted that the scope of review under Order 47 Rule 1 of C.P.C is very limited. It is well-settled that under the guise of review, no party can be permitted to re-argue the matter once-again on the merits of the matter, as the review jurisdiction is not an appellate jurisdiction. In this context, it is useful to note the following decisions of the Hon'ble Supreme Court and this Court:-

(i) In (2013)8 SCC 337 (Union of India vs. Sandur Manganese and Iron Ores Ltd.,), it has been held at paragraph 23 and 24 as follows:-

'23. It has been time and again held that the power of review jurisdiction can be exercised for the correction of a mistake and not to substitute a view. In Parsion Devi V. Sumitri Devi (1997)8 SCC 715, this Court held as under (SCC p.719 para 9)

9. Under Order 47 Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the fact of the record. An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the fact of the record justifying the court to exercise its power of review under Order 47 Rule 1 CPC. In exercise of the jurisdiction under Order 47 Rule 1 CPC it is not permissible for an erroneous decision to be 'reheard and corrected'. A review petition, it must be remembered has a limited purpose and cannot be allowed to be 'an appeal in disguise'.

24. This Court, on numerous occasions, had deliberated upon the very same issue, arriving at the conclusion that 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 CPC.'

(ii) In (2013)8 SCC 320 (Kamalesh Verma Vs. Mayawati), the Hon'ble Apex Court has observed when the review will be maintainable and when the review will not be maintainable as follows:-

'The principles relating to review jurisdiction may be summarised as follows:-

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 (1921-22) 49 IA 144 and approved by this Court in Moran Mar Basselios Catholicos, AIR 1954 SC 526 to mean 'a reason sufficient on grounds at least analogous to those specified in the rule.'

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) 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.'

(iii) In (2014)5 SCC 75 (Subramania Swamy vs. State of Tamil Nadu), it has been observed at paragraph No.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 v. Rambhai) (2007)15 SCC 513 : (2010)3 SCC (Cri) 584: AIR 2003 SC 2095'

(iv) The Division Bench of this Court in the decision reported in (2008)4 MLJ 173 (K.Alliammal vs. Spl. Tahsildar) has observed at paragraph Nos.4 and 8 as follows:-

'We are of the view that the scope of exercising the review power is very limited. The power of review may be exercised on the discovery of new and important matter or evidence which, after exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits and the review petitioners have not been properly represented at that time of arguing the case or the counsel who argued on behalf of the review petitioners has not placed any relevant materials before the Court. That would be the province of a Court of appeal. A power of review is not to be confused with appellate powers which may enable an appellate Court to correct all manner of errors committed by the subordinate Court or crept in the judgment and decree which is appealed again.

A much volume of a judicial interpretation has been gathered around the interpretation of the expression 'apparent from the face on record' occurring in the above Section. The one uniform principle that runs through the catena of decisions is that 'a mistake apparent on record' must be an abvious and apparent mistake and not something, which can be established by a long-drawn process of reasoning o

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n points on which there may conceivably be two opinions. An error which is not self evident and is to be deducted by process of reasoning can hardly be said to be an error apparent on the fact of the record.' 9. The above decisions of the Hon'ble Apex Court and the Division Bench of this Court, would make it very clear that the grounds raised by the review applicant on the merits of the matter cannot be entertained as they are nothing but an attempt to re-argue the matter once again on merits, which would not fall under the scope and purview of Order 47 Rule 1 of CPC. 10. The learned Senior Counsel for the review applicant further submitted that an interim application filed to receive additional document was not considered by the Division Bench. It is seen that the Division Bench while dismissing the appeal has also closed the miscellaneous petitions filed along with the appeal. Therefore, we find that the above contention cannot be a ground for reviewing the judgment. 11. Considering the above stated facts and circumstances, We find that the review has to fail as the applicant has not made out a case for review. 12. Hence, the Review Application is dismissed. No costs.