IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 29.4.2008 CORAM: THE HONOURABLE MR.JUSTICE M.JAICHANDREN Review Application No.89 of 2003 M.G.Venkatesan .. petitioner Vs. 1. Kamachi 2. Corporation of Madras rep. by its Commissioner Rippon Building Chennai-600 003 : Respondents Prayer: The Review Petition is filed against the judgment and decree, dated 12.7.2002, made in S.A.No.751 of 1990 on the file of this Court. For petitioner : Dr.A.E.Chelliah Senior Advocate for Mr.C.Vasanthakumari Chelliah For Respondent : Mr.S.V.Jayaraman Senior Advocate for Mr.J.R.K.Bhavanantham ORDER
The review application has been filed praying that this Court may be pleased to review the judgment and decree passed by this Court, on 12.7.2002, in the second appeal S.A.No.751 of 1990.
2. The applicant had filed the review application on the various grounds as stated therein. It has been stated that while this Court had observed in paragraph 12 of the judgment that it is of the view that the lane has been commonly used by both the parties without causing detriment to the interest of the others, in the concluding paragraph of the judgment, it has been stated that the plaintiff is entitled to get the relief of declaration, declaring that the 4 feet lane belongs to the petitioner, exclusively.
3. It has also been stated in the review application that the interpretation of the Will, dated 1.7.1966, and the Codicil, dated 1.7.1971, needs a review in the light of the words used therein seeking to recognise the right of the applicant in the lane in question. The conclusion arrived at by the learned Judge in the judgment, dated 12.7.2002, construing the words used in the Will and the Codicil, for granting exclusive right to the respondent needs review to clarify as to whether the full ownership in the lane is given exclusively to the respondent or it is only the right of way for the using the common passage.
4. The applicant had stated, inter alia, that there is no 4 feet lane existing in the suit property, as stated in the judgment and decree, dated 12.7.2002.
5. The learned counsel appearing for the applicant had submitted that the judgment and decree of this Court, dated 12.7.2002, made in S.A.No.751 of 1990, needs a review as there are errors apparent on the face of the record as contemplated under Order 47 of the Civil Procedure Code, 1908.
6. While reading the Will, dated 1.7.1966, marked as Exhibit A.1 and the Codicil, dated 1.7.1971, marked as Exhibit A.2, in the suit O.S.No.7218 of 1984, it is clear that the applicant has the right to use the common passage. It has been held in the judgment, dated 12.7.2002 that the respondent is entitled to use the common passage, exclusively. In such circumstances, unless the review application is allowed, it would cause irreparable loss and hardship to the applicant.
7. Per contra, the learned counsel appearing for the respondent had submitted that the judgment and decree of this Court, dated 12.7.2002, made in S.A.No.751 of 1990, is very clear. The findings and conclusions arrived at are cogent and there is nothing in the said judgment or the decree, which is ambiguous. There is no error apparent on the face of the record to be reviewed as the Will, dated 1.7.1966, marked as Exhibit A.1 and the Codicil, dated 1.7.1971, marked as Exhibit A.2, in the suit are correctly conveying the intention of the propounder of the Will and the Codicil. According to the Will, dated 1.7.1966, the absolute estate has been given to the mother of the respondent whereas by the Codicil, dated 1.7.1971, the Will has been modified giving the mother only the life estate in the suit properties and absolute ownership in the two daughters, including the respondent. The review application would be sustainable only under limited conditions.
8. The learned counsel appearing for the respondent had relied on the following decisions of the Supreme Court in support of his contentions:
8.1. In MEERA BHANJA Vs. NIRMALA KUMARI CHOUDHURY (AIR 1995 S.C.455), the Supreme Court citing its decision in ARIBAM TULESHWAR SHARMA Vs. ARIBAM PISHAK SHARMA (AIR 1979 SC 1047), had observed, with regard to the review powers under Article 226 of the Constitution of India, as follows:
8. It is well settled that 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. In connection with the limitation of the powers of the Court under Order 47, Rule 1, while dealing with similar jurisdiction available to the High Court while seeking to review the orders under Article 226 of the Constitution of India, this Court, in the case of ARIBAM TULESHWAR SHARMA Vs. ARIBAM PISHAK SHARMA (AIR 1979 SC 1047), speaking through Chinnappa Reddy, J., has made the following pertinent observations:
“It is true there is nothing in Article 226 of the Constitution to preclude the High Court from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the Power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the 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. That would be the province of a Court of Appeal. A power of review is not to be confused with appellate power which may enable an Appellate Court to correct all manner of errors committed by the Subordinate Court.”
8.2. In DEVARAJU PILLAI Vs. SELLAYYA PILLAI (AIR 1987 S.C.1160), it was held that if the party is aggrieved by the judgment of the single judge sitting in Second Appeal the appropriate remedy for the party is to file an appeal against that judgment. A remedy by way of an application for review is entirely misconceived and if a single Judge entertains the application for review then he totally exceeds his jurisdiction in allowing the review, merely because he takes a different view on construction of the document.
9. Based on the contentions raised by the learned counsels appearing for the parties concerned and on a perusal of the judgment and decree of this Court, dated 12.7.2002, and in view of the decisions cited, this Court is of the considered view that the applicant had not shown sufficient cause or reason for this Court to review the judgment and decree of this Court, dated 12.7.2002, made in S.A.No.751 of 1990. There is no error apparent on the face of the record in the said judgment and decree, dated 12.7.2002, as stated by the applicant. The review jurisdiction of this Court is limited and it can be exercised only under certain specified conditions.
10. From the perusal of the records available before this Court, it is clear that such conditions do not exist in the present case to review the judgment and decree of this Court, dated 12.7.2002, made in S.A.No.751 of 1990. If the applicant had been aggrieved by the judgment and decree, dated 12.7.2002, it was open to him to have challenged the same in the manner known to law. However, the review application filed by the applicant is not sustainable in the facts and circumstances of the present case. Hence, the review application stands dismissed. Consequently, connected C.M.P.Nos.10918 to 10920 of 2003 are also dismissed. No costs.
29.4.2008
Index : Yes
Internet: Yes
lan
To:
1. Corporation of Madras
rep. by its Commissioner
Rippon Building
Chennai-600 003
M.JAICHANDREN J.,
lan
Review Application No.89 of 2003
29.4.2008