(Prayer: Review Application filed under Order XLVII Rule 1 of Code of Civil Procedure, to review the Judgment made in S.A.No. 675 of 2019 dated 28.05.2020.)1. The Application had come up for admission on 15.12.2020. It must be stated at the very outset that the main grievance of the learned counsel for the review applicant is that grounds of appeal which had been raised in the Second Appeal and had been argued orally and the written arguments and the precedents which have been cited had not been considered by the Court and therefore the Judgment dated 28.05.2020 in S.A.No. 675 of 2019 has to be reviewed.2. Mr.S.Sathiaseelan, learned counsel for the review applicant stated that the Hon’ble Supreme Court has laid down that when a finding has been rendered on the issues framed, skipping the arguments and evidence on record, then the Judgment can be reviewed by the Court. The review applicant has filed several grounds seeking to interfere with the Judgment already passed.3. I must also point out that though Mr.S.Sathiaseelan wanted to argue the matter in detail, the Court had stated that it will examine the rounds stated in the review and then take a decision whether to admit the same or not.4. With respect to the first substantial question of law, in paragraph 7(a), it had been stated that the decision of the Hon’ble Supreme Court on an identical fact situation, deciding the life interest given by a Hindu Male to his wife to enjoy the property and income out of the property till her natural life and ultimately would go to her minor son after her life time in a gift deed, namely (2010) 9 SCC 602 [ Gaddam Ramakrishna Reddy’s case) paras 24 to 29 had not been mentioned in the Judgement under review.5. In paragraph 7(b), it had been further stated that pre-existing right of maintenance though available to all married female Hindu as against husband and unmarried female Hindus daughter as against father can be enforced only on the denial of maintenance or if there is no means or no other property available in her name.6. In paragraph 7(c), it had been stated that the decision of the Hon’ble Supreme Court reported in (2016) 2 SCC 56 [Jupudy Pardha Sarathy case], wherein it had been held that though no specific language, namely, in lieu of maintenance is mentioned that the property was given as life interest was in lieu of female Hindu’s maintenance but in the facts and circumstances of the case, namely, right to reside, right to fetch water, etc., was in recognition of a pre-existing right of maintenance and then only the limited ownership would enlarge into absolute title under Section 14(1) of the Hindu Succession Act, 1956. It was stated that in the instant case, apart from not specifically mentioning in Ex.A-1, there were no other facts, to support the same and therefore, the subject matter fell under Section 14(2) of the Act.7. In paragraph 7(d), it had been further mentioned that in Exs. A-64 & A-65, Saradambal had herself admitted that she was living separately together and that the property given to her in Ex.A-1 was only for managing the property as life interest and she herself relinquished only her right, title and interest for life in the property. It had been stated that no finding had been given to that effect.8. In paragraph 7(e), it had been stated that with respect to the decisions relied, namely, (2008) 17 SCC 491 [ Bachhaj Nahaar Vs. Nilima Mandal]; (2008) 12 SCC 302 [ G.Rama Vs. T.G. Seshagiri Rao]; and (2003) 1 SCC 212 [Gulabrao Balwantrao Shinde Vs. Chhabubai Balwantrao Shinde]; it had been wrongly observed in the Judgment that the petitioner had relied only on the head note of the decision reported in (2003) 1 SCC 212 [Gulabrao Balwantrao Shinde Vs. Chhabubai Balwantrao Shinde]. It was stated that the counsel had placed reliance on paragraph No. 7 of the above Judgment.9. With respect to the second substantial question of law, it had been stated in paragraph 7(f) on the application of Article 65 of the Limitation Act 1963, that if only the adverse possession had already been prescribed to the appellant within the fours of law by necessary pleadings in the plaint, dehors or without relying on Exs. A2, A3 and Exs. A8 to A28, then Article 65 of the Limitation Act will be attracted as against the defendants. It had been stated that there is no question of application of Article 65 of the Limitation Act and the Judgment of the Madras High Court in (2018) 6 CTC 645 [ Hemanakumar Vs. Melvinkumar] was not considered by the Court.10. In paragraph No. 7(g), it had been stated that Saradambal had released only her title, right and interest for life in the subject matter of the property in favour of her husband Dhanakoti Naicker through Exs. A64/65 and that such a transfer or release of life interest is void. It was stated that the said submissions also skipped the attention of the Court and no finding to that effect was given.11. In paragraph No. 7(h), it was stated that in the decision reported in 2019 SCC Online SC 1260 [Narayanamma Vs. Govindappa], the appellants vested their claims on grounds which are illegal and void. It had been stated that the said submission was also not considered by the Court.12. In paragraph 7(i), it had been stated that the Judgments of the Hon’ble Supreme Court in (2002) 3 SCC 676 [Shrimant Shamrao Suryavanshi case] and (2019) 6 SCC 409 [ Thulasidhara Vs. Narayavanshi Case), had not been considered by the Court.13. In paragraph 7(j), it had been stated that no ingredients of adverse possession has been pleaded in the plaint. It had been stated that to invoke Article 65, the petitioner had relied on the following decisions of the Hon’ble Supreme Court (1) 2017 (6) CTC 195 (SC) [ Dagadabai Vs. Abbas @ Gulab Rustam Pinjari]; (2) (2007) 6 SCC 59 [ P.T. Muni Chikkanna Reddy Vs. Ravanamma]; (3) (2015) 14 SCC 450 [State of Madhya Pradesh Vs. Nomi Singh]; (1995) 2 SCC 543 [Anna Sahib Bapu Sahib Patel Vs. Balwant]; (2020) 1 SCC 1 [Ram Janmabhumi Temple’s Case]; and (2019) 8 SCC 729 [Ravinder Karu Grewal Vs. Manjit Kaur], it was stated that these Judgments had skipped the attention of the Court.14. In paragraph 7(k), it was stated that in the light of Ex.A-1 on the adoption of third defendant in the year 1962, symbolic possession created in favour of the third defendant under Section 14(2) of the Hindu Succession Act, 1956 does not dispossess the third defendant and it was submitted that the alleged adverse possession of the appellants, the personal law plays vital role to construe the nature of possession and a Judgment of the Hon’ble Supreme Court relied on, namely, (2019) 8 SCC 729 [Ravinder Kaur Grewal Vs. Manjit Karu] had also skipped the attention of the Court.15. In paragraph 7(l), it was stated that the Judgment of the Hon’ble Supreme Court reported in (2006) 5 SCC 353 [Prem Singh Vs. Birbal], to the effect that Exs.A-2, A-3 and A64/65 are documents void ab initio, a decree for setting aside the same would not be necessary as the same is non est in the eye of law had skipped the attention of the Court.16. With respect to the fourth substantial question of law in paragraph 7(m), it had been stated that the decision of the Hon’ble Supreme Court in (1978) 3 SCC 55 [Chettiar Vs. Chettiar]; (2005) 12 SCC 290 [Basavajappa Vs. Gurubasavamma]; and 2019 SCC OnLine SC 819 [Pharez John Abraham Vs. Arul Jothi Siva Subramanian. K]; whether adopted son of the third defendant could be considered as children born to her and it had been stated that the third defendant had already become reversioner as per Ex.A1. It was stated that the said statement had skipped the attention of the Court.17. In paragraph 7(n) with respect to Section 12 of Hindu Adoption and Maintenance Act, 1956, it was stated the Judgments, namely (1995) 1 SCC 537 [ Harish Tandon Vs. Addl. District Magistrate] and (2010) 8 SCC 612 [Ittianam Vs. Cherichi], had skipped the attention of the Court.18. In paragraph 7(o), it was stated that the Court held that the subject matter of property was given to Saradhambal as right of residence in lieu of maintenance which is contrary to the evidence available on record.19. In paragraph 8, it had been stated that the Court had come to a concrete conclusion that the third defendant had received the sale consideration from the properties sold by Dhanakoti Naicker by extracting the covenants in Exs. A-2 and A-3. It was stated that the Court had failed to notice that the third defendant was not a party or signatory to Exs. A-2 and A-3.20. It was stated in paragraph 9 that in (2000) 1 SCC 666 [M.M.Thomas Vs. State of Kerala], it had been held that the Court should not hesitate to review its own earlier order when there exists an error on the face of the record.21. I have to state that the grounds as stated in the grounds for review have been extracted to the best possible extent.22. I have carefully considered the grounds.23. The scope of a Review Application is narrow if appeal lies against the Judgment against which the review had been filed. To the extent to which the Court has considered possible, the Judgments, which had been cited or had been felt to be relevant to the facts in issue have been stated in the Judgment now sought to be reviewed.24. Again to the extent to which the pleadings have to be considered have been considered. To the extent to which the evidence has to be considered has been considered. If while considering the same, there is a material error on the face of the record, then most certainly review is permissible. If according to the learned counsel for the review applicant as stated in the ground for review, Judgments which have been cited has skipped the attention of the Court, then on the same hand, it is to be pointed out that further Judgments have been relied on which the Court felt were more relevant to the facts to decide the issues between the parties. To that extent, the Judgment had been passed after examining all the issues raised by all the parties. No grounds have been stated, that material facts have been omitted. No contention has been raised in the review application that evidence recorded has been overlooked. No grounds have been raised in the review application that though evidence is available, they have been wrongly interpreted. It is to be seen that primarily the facts will have to be established. They have been established. Error on the face of such facts have not been pointed out. Thereafter, on the point of law, while interpreting the evidence on record, the precedents which appeared to be relevant, have been taken into consideration. To the extent possible, Judgments which were required to be cited have been cited.25. The entire grounds for review have been extracted above. To repeat, there has been no averment that there has been error on the face of the record. The points taken by the review applicant are appealable issues. It is only an appellate Court which can examine these aspects and if so warranted, interfere with the Judgment passed by this Court.26. It is highly inappropriate on the part of the review applicant to meander and circulate around this Court and seek review of a Judgment by raising grounds which forces this Court to sit in appeal over the Judgment. Even if two views are possible, and one view had been taken, an appellate Court alone can correct such interpretation.27. The learned counsel might have a grievance that the Court did not permit him to argue the review application, but the learned counsel was only repeating the grounds of review which are already available in written form before the Court. Every ground has been extracted above. Each one of them are grounds for appeal against the Judgment. Even in these grounds, to repeat, it has not been mentioned that facts have been wrongly stated, that vital facts have been ommitted to be stated, that evidence recorded has not been considered, and that evidence recorded has been wrongly interpreted. But, calling upon the Court to examine the position of law with respect to each and every substantial question of law may not be proper. The review applicant is at liberty to file an appeal as against the Judgment. In fact, the Court would invite him to do it as it would be a test whether the Judgment rendered by this Court withstands the scrutiny of a higher forum.28. I further hold that an application for review cannot be a substitute for a regular appeal. The learned counsel for the review applicant probably feels that some Judgments are more relevant. There are a number of Judgments which have been cited, which the Court had felt are actually relevant. This is an issue of perception and it is an issue of applying the law to the facts of the case. When a law or a precedent had been wrongly applied, then the Appellate Forum would certainly correct it by applying the correct law. If according to the review applicant, the correct precedent had not been cited then he can cite them at the appellate stage and get a reversal of the Judgment. Review of the Judgment is not the course to be adopted particularly when error on the face of the record has not been pointed out.29. The learned counsel cannot deny that more than sufficient opportunity had been granted to him and to the Senior Counsels to argue the Second Appeal. As a matter of fact, the learned counsel for the review applicant, had passed imputation against another learned Judge of this Court (R.Subramanian, J) and thereafter, the matter was posted before this Court as a Specially Ordered case. The learned Judge had specifically named the counsel, Mr.S.Sathiaseelan and had recused from hearing the case. It appears to be a common practice ingrained in the counsel to unnecessarily raise imputations if a Judgment is pronounced adverse to him. The learned counsel should advise the appellant to file an appeal and seek necessary orders which he feels are right in the circumstances of the case.30. The Review Application has been filed with the sole intention to raise imputations as against this Court. The learned counsel had done so once. The learned counsel is doing so again. The majesty of the Court will have to be upheld.31. In Arivandandam Vs. T.V.Satyapal and Anr., reported in 1977 4 SCC 467, the Hon’ble Supreme Court had an occasion to comment the role of counsels albeit in an entirely different context. It would be worth while to extract the same as it is obvious that the grounds of review has been drafted by the counsel:“7. We regret the infliction of the ordeal upon the learned Judge of the High Court by a callous party. We more than regret the circumstance that the party concerned has been able to prevail upon one lawyer or the other to present to the Court a case which was disingenuous or worse. It may be a valuable contribution to the cause of justice if counsel screen wholly fraudulent and frivolous litigation refusing to be beguiled by dubious clients. And remembering that an advocate is an officer of justice he owes it to society not to collaborate in shady actions. The Bar Council of India, we hope will activate this obligation. We are constrained to make these observations and hope that the cooperation of the Bar will be readily forthcoming to the Bench for spending judicial time on worthwhile disputes and avoiding the distraction of sham litigation such as the one we are disposing of. ......”32. It has to be pointed out that the other respondents in the Second Appeal have not thought it necessary to file similar Review Applications.33. In (1997) 8 SCC 715 [ Parsion Devi and Others Vs. Sumitri Devi and Others], the Hon’ble Supreme Court has held as follows:-“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 face 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 face of the record justifying the court to exercise its power 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 limited purpose and cannot be allowed to be “an appeal in disguise.10. Considered in the light of this settled position we fine that Sharma, J. clearly over-stepped the jurisdiction vested in the court under Order 47 Rule 1 CPC. The observation of Sharma, J. that “accordingly”, the order in question is reviewed and it is held that the decree in question is reviewed and it is held that the decree in question was of composite nature wherein both mandatory and prohibitory injunction were provided “and as such the case was covered by Article the scope of Order 47 Rule 1 CPC. There is a clear distinction between an erroneous decision and an error apparent on the face of the record. While the first can be corrected by the higher forum, the later only can be corrected by exercise of the review jurisdiction. While passing the impugned order, Sharma, J. found the order in Civil Revision dated 25.4.1989 as an erroneous decision, though without saying so in so many words. Indeed, while passing the impugned order Sharma, J. did record that there was a mistake or an error apparent on the face of the record which not of such a nature, “Which had to be detected by a long drawn process of reasons“ and proceeded to set at naught the order of Gupta, J. However, mechanical use of statutorily sanctified phrases cannot detract from the real import of the order passed in exercise of the review jurisdiction. Recourse to review petition in the facts and circumstances of the case was not permissible. The aggrieved judgment debtors could have approached the higher forum through appropriate proceedings, to assail the order of Gupta, J. and get it set aside but it was not open to them to seek a “review of the order of petition. In this view of the matter, we are of the opinion that the impugned order of Sharma, J. cannot be sustained and accordingly accept this appeal and set aside the impugned order dated 6.3.1997.”34. In (2008) 11 SCC 107 [ T.Thimmaiah (dead) by Lrs. Vs. Venkatachala Raju (dead) Lrs.], the Hon’ble Supreme Court has held as follows:-“2. During the course of hearing, the learned counsel for the appellant has pointed out that a bare perusal of the order in review would reveal that it is based on a
Please Login To View The Full Judgment!
complete reappreciation of the matter on facts and the provisions of Order 47 Rule 1 of the Code of Civil Procedure w hich would govern an application for review, have been completely ignored. It has been submitted by the counsel that the Single Judge had, in the first Judgment, examined the facts and dismissed the appeal and on a reconsideration of the same facts, had allowed the same, which was not justified. We find merit in this plea. From a bare perusal of the Judgment in review, it is clear that the principles laid down under Order 47 Rule 1 CPC have been completely ignored. We accordingly allow the appeal, set aside the order in review dated 26.2.2001 and dismiss the appeal in the suit. We, however, give liberty to the respondent herein to challenge the Judgment dated 16.2.1999, if so advised.”35. In (2018) 4 SCC 587 [ Sivakami and Others Vs. State of Tamil Nadu and Others], the Hon’ble Supreme Court has held as follows:-“18. The scope of the appellate powers and the review powers are well defined. The power of review under Order 47 Rule 1 of the Code of Civil Procedure, 1908 is very limited and it may be exercised only if there is a mistake or an error apparent on the face of the record. The power of review is not to be confused with the appellate power. The review petition/application cannot be decided like a regular intra court appeal. On the other hand, the scope of appeal is much wider wherein all the issues raised by the parties are open for examination by the Appellate Court.19. A fortiori, what was not decided in appeal by the Division Bench could not be decided by the Division Bench while deciding the review application. It is for this reason, we are also constrained to set aside the review order.”36. The ratio laid down are binding. To repeat, no error on the face of the record has been pointed out in the grounds of review.37. For the above reasons, I hold that the Review Application cannot be considered and the same is rejected. No costs. Consequently, connected Miscellaneous Petition is closed.