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D.S.Kanagarajan vs N.S.Spance on 30 April, 2010

Madras High Court
D.S.Kanagarajan vs N.S.Spance on 30 April, 2010
       

  

  

 
 
 IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:    30.04.2010
CORAM:
THE HONOURABLE MR.JUSTICE.M.DURAISWAMY
Rev.Petn.No.74 of 2008
In
S.A.No.1340 of 1993
And
M.P.Nos.1 and 2 of 2008

D.S.Kanagarajan                    	                         ...Petitioner

Vs.

1.N.S.Spance
2.T.A.Dhayavathi (Since 
   Deceased in the year 2000)                                 ...Respondents


	Petition filed under section 114 of the Civil Procedure Code against the order dated 14.12.2004 passed in S.A.No.1340 of 1993 on the file of this Hon'ble High Court.


		For petitioner	:Mr.S.V.Jayaraman
                                           S.C. for Mr.P.Anand
		For respondents	:Mr.V.Ayyadurai

ORDER

The first respondent in the above second appeal has filed the above review application.

2.By judgment dated 14.12.2004, this Court set aside the judgments and decrees of the Courts below and allowed the second appeal thereby decreed the suit.

3.Heard Mr.S.V.Jayaraman Senior Counsel for the review applicant and Mr.V.Ayyadurai for the first respondent.

4.The learned Senior counsel appearing on behalf of the applicant submitted that since the second respondent in the above second appeal died in the year 2000, the judgment against a dead person without bringing on record, the legal representatives of the deceased second respondent in the second appeal is not sustainable in law. Therefore, the judgment in second appeal is liable to be set aside.

5.The learned Senior counsel also contended that the mere pendency of the partition suit in O.S.No.69 of 1968 cannot be construed that the possession is not with the review applicant; that the judgment of this Court in the second appeal to the effect that the physical possession is not with the review applicant when the final conclusion was arrived and clearly established the right and title of the property in favour of the review applicant for his half share by negativing the plea of adverse possession; that the land in question is a vacant site and there is nobody in physical possession and the first respondent’s claim of right based on title deeds and also claiming adverse possession could not be granted.

6.The learned Senior counsel in support of his contentions relied upon the following judgments reported in:

AIR 1964 Supreme Court 215 (Union of India Vs. Ram Charan(deceased) through his Legal Representatives) wherein the Hon’ble Apex Court held that the limitation for bringing on record the legal representatives start from the date of death of the party and not from the date of knowledge on the part of plaintiff or appellant.

AIR 1998 Madras 379 (Krishnaveni and others Vs. Ramachandra Naidu and another) wherein this Court held that for exemption under Order 22, Rule 4(4) of C.P.C. the very substitution of the legal representative of a deceased defendant can be given by the Court under the said sub rule at any time before the pronouncement of the judgment without even an application.

7.Per contra, the learned counsel appearing for the respondent submitted that the review application is liable to be dismissed since there is no mistake or error apparent on the face of the record in the judgment of this Court warranting reconsideration of the judgment.

8.The learned counsel appearing for the respondents relied upon the following judgments reported in:

AIR 1992 Madras 159 (Elisa and others Vs. A.Doss) wherein this Court held that a decree obtained against a dead person without complying with Order 22, Rule 4(4) of CPC is a nullity and not executable against the legal representatives of the deceased defendant.

2000 (III) CTC 141 (M.Muthuroyappa Vs.Muniappa and 2 others) wherein this Court held that the death of one defendant cannot result in abatement of suit in another defendant as right to sue for entrying suit lands owned by remaining defendant survives.

1988 (Supp) Supreme Court Cases 578 (Collector of 24 Parganas and others Vs. Lalith Mohan Mullick and others) wherein the Apex Court held that it is not possible to uphold the plea that the appeal had abated and the judgment on merits rendered by the Court requires to be set aside on that ground. Further the Apex Court also held that a new ground cannot be taken into consideration for the purpose of the review application.

(2010) 2 MLJ 1177 (M.Jagadeesan Vs. K.Selvam and others) wherein this Court held that the power of review can be exercised by a Court of law for correction of mistakes and not to substitute the view already taken. Further, this Court also held that though the High Court is a Court of record with inherent powers yet the said power is restricted and substantial relief cannot be asked for in the guise of review.

2010 (2) CTC 40 (R.Karuppusamy Vs. 1.The Regional Manager, Tamil Nadu Co-op. Marketing Federation, Coimbatore and 3 others) wherein this Court held that in review, re-hearing matter on merits is not permissible.

2009 (5) CTC 365 (Inderchand Jain (D) through LRs. Vs. Motilal (D) through LRs.) wherein the Hon’ble Apex Court also held that re-hearing of matter in review is impermissible in law.

9.On a careful consideration of the materials available on record and the submissions made by both the counsels, it could be seen that the first respondent in the second appeal died as early as in the year 2000. The appellant did not take steps to bring on record the legal representatives of the deceased and in fact it was not brought to the notice of this Court when the appeal was taken up for hearing on 14.12.2004. That apart on a perusal of the records it could be seen that the deceased second respondent did not file any separate written statement in the suit. The respondents in the second appeal engaged the same counsel to appear on their behalf before the trial court and also before the lower appellate court. Even in the second appeal both the respondents were represented by the same counsel. In that case the first respondent ought to have informed the Court about the death of the second respondent atleast at the time of hearing. The first respondent having failed to inform this Court about the death of the second respondent can not take advantage of his own mistake and pray for setting aside the judgment in this review application. Under Order 22 Rule 10A CPC, the counsel appearing for a party comes to know of the death of that party he shall inform the Court about it. In the present case the review applicant did not inform the Court about the death of the second respondent, who according to him died in the year 2000 itself. This Court allowed the appeal on merits as if the second respondent was alive. This Court by judgment dated 14.12.2004 set aside the judgments and decrees of the Courts below and allowed the second appeal.

10.With regard to the contention of exempting the appellant from bringing on record the legal representatives of the deceased second respondent under Order 22 Rule 4(4) C.P.C. in AIR 2009 SC 2367 (T.Gnanavel Vs. T.S.Kanagaraj & Another) the Apex Court held that the exemption must be obtained before the pronouncement of the judgment. In the present case the appellant did not obtain any exemption before the pronouncement of the judgment. Therefore no exemption can be granted to the appellant now.

11.The first respondent filed the above review application only on 17.03.2006. By order dated 24.04.2008, this Court condoned the delay of 388 days in filing the review application. The present review application has been filed by the first respondent in the second appeal. It is also pertinent to note that the legal representatives of the deceased second respondent have not filed any application to review the judgment. If the legal representatives of the deceased second respondent are aggrieved by the judgment in second appeal, they would have filed a petition to review the judgment dated 14.12.2004 and to implead themselves as legal representatives of the deceased second respondent in the aforesaid appeal. That apart, entire appeal shall not be dismissed as abated on the death of the second respondent. Therefore on this ground the applicant cannot ask for reviewing the judgment.

12.Applying the principles laid down in the above referred judgment, it is settled principle of law that review of the judgment is permitted only within the provisions of Order 47 of CPC and sec.114 of CPC. The judgment can be reviewed only in the case of mistake or error apparent on the face of the record requiring correction of such mistake or error in the judgment. The contentions raised by the review applicants are on the merits of the second appeal which cannot be reviewed. Further an erroneous finding is not a ground for review. Similarly improper consideration of evidence available on record and over looking important evidence are not sufficient grounds for review. Reappraisal of evidence to come to a different conclusion would amount to exercise of Appellate jurisdiction and not review jurisdiction. In review application, the Court does not sit on appeal over its own judgment. A re-hearing of matter is impermissible in law. It constitutes an exception to the general rule that once a judgment is signed or pronounced, it should not be altered. The power of review can be exercised for correction of a mistake and not to substitute a view. The review cannot be treated as an appeal in disguise.

13.Therefore the exercise of power of review as pronounced by the Apex Court and various 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 and 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’.”

14.The contentions put forth by the applicant that the learned judge has not properly appreciated his case while dealing with the second appeal, could be the basis for an appeal and not review. There is no error or mistake apparent on the face of the record which comes within the purview of the Order 47 of C.P.C. and Section 114 of C.P.C.

15.In these circumstances, the review application is liable to be dismissed. Accordingly, the review application is dismissed. No costs. In view of the order passed in the review application, the miscellaneous petitions namely, M.P.Nos. 1 and 2 of 2008 are closed.

.04.2010
Index:Yes/No
Internet:Yes/No
pri

M.DURAISWAMY,J
pri

Pre-Delivery Order in
Rev.Petn.No.74 of 2008
In
S.A.No.1340 of 1993
And
M.P.Nos.1 and 2 of 2008

.04.2010

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