IN THE HIGH COURT OF KERALA AT ERNAKULAM
RP.No. 284 of 2010()
1. NAGESH KAMATH, S/O.BHASKARA KAMATH
... Petitioner
2. M/S.K.VASUDEVA KAMATH & COMPANY
Vs
1. BEEPATHUMMA, W/O.MOHAMMED ISMAIL
... Respondent
2. ASYAMMA, W/O.DR.AHAMAD MORGAL
For Petitioner :SRI.P.N.KRISHNANKUTTY ACHAN(SR.)
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :26/03/2010
O R D E R
THOMAS P JOSEPH, J.
----------------------------------------
R.P.No.284 of 2010
in
S.A.No.25 of 1996
---------------------------------------
Dated this 26th day of March, 2010
ORDER
Respondents in the second appeal have sought review of
judgment and decree of this court dated 05-01-2010 on the ground,
among other things that when a person makes available an interest
which belonged to him into a partnership firm including himself, it does
not involve any transfer and it is only that property of the individual is
brought into the common stock of the partnership firm. Learned
Senior Advocate contends that this important aspect of the matter was
not considered by this court while deciding the second appeal.
Learned Senior Advocate has placed reliance on the decisions in
P.J.Jacob Vs. T.J.Jacob (1977 KLT 224) and Amarnath Agarwalla
Vs. Dhillon Transport Agency (2007(4) SCC 306. Learned
counsel for respondents (in the review petition) would contend that
said question was also considered by this court and it was held that so
far as respondents are concerned, the partnership firm (petitioner
No.2) of which the original lessee is said to have been a partner is a
different legal entity unconnected with the lessee and hence
petitioners are not entitled to the protection of Section 106 of the
Kerala Land Reforms Act (for short, “the Act”).
R.P.No.284 of 2010 in S.A.No.25 of 1996
2
2. The case is that plaint A schedule property was let out to
one Sarvothama Kamath by the predecessor-in-interest of respondents
as per a registered lease deed dated 13-04-1951 for a period of 35
years and reserving an annual rent of Rs.50/-. Respondents who
inherited the suit property sought eviction of petitioners, a partnership
firm and its partner on the expiry of the period of lease. The
partnership firm and the partner (petitioners in the review petition)
sought protection of section 106 of the Act. Courts below found in
favour of petitioners and refused to order eviction. That judgment and
decree were under challenge in the second appeal. In this court it was
argued on behalf of the respondents that petitioners (respondents in
the second appeal) could not seek protection of section 106 of the Act
since it is not a case where the structures were put up by the lessee
but by a partnership firm (petitioner No.2) which had nothing to do with
the lease. This court held that the lease was in favour of Sarvothama
Kamath as per registered lease deed and hence so far as the landlords
are concerned lessee is the said Sarvothama Kamath. Petitioners had
no case that the impugned constructions were made by the lessee or
by the petitioners on behalf of the lessee. Instead, their contention
was that Sarvothama Kamath obtained the lease for and on behalf of
petitioner No.2, the partnership firm and that the said partnership firm
put up the structures. This court held that there was no privity of
contract between the landlord and petitioner No.2 and that
R.P.No.284 of 2010 in S.A.No.25 of 1996
3
Sarvothama Kamath at the time of lease was or later became a partner
in petitioner No.2 made no difference so far as contractual relationship
between the landlord and Sarvothama Kamath was concerned. This
court held that hence the only person who could claim protection of
section 106 of the Act is Sarvothama Kamath. This court also held that
being a partner of petitioner No.2., Sarvothama Kamath could have
probably successfully resisted an attempt for his eviction on the
ground of sublease but that did not enable petitioner No.2 to claim
protection of section 106 of the Act. This court also considered the
question whether petitioners could be treated as assignees of
Sarvothama Kamath, the lessee invoking explanation to section 106 of
the Act in view of Ext.B1, copy of registered assignment deed executed
by the legal representatives of Sarvothama Kamath in favour of
petitioner No.2. This court held that Ext.B1 is not an assignment of
leasehold right of Sarvothama Kamath which devolved on his legal
representatives consequent to his death and hence in that way also
petitioners could not claim protection of section 106 of the Act. This
court held from the evidence that as the structure was put up by
petitioner No.2 which was neither the lessee nor assignee of the lessee
it could not claim protection under section 106 of the Act. Now, the
ground urged for review is that Sarvothama Kamath, the lessee had
brought his leasehold right in the suit property into the partnership
(petitioner No.2) of which he was a partner and hence that does not
R.P.No.284 of 2010 in S.A.No.25 of 1996
4
amount to an assignment. It is for the above purpose that learned
Senior Advocate had placed reliance on the decisions (surpa).
Question considered in those decisions was whether a lessee who
formed partnership with others could be evicted on the ground of
sublease. It was held that it was not a case of transfer of exclusive
possession of the demised premises in favour of the partnership firm in
which lessee continued to be a partner and hence eviction cannot be
ordered on the ground of sublease as it was not a case of lessee
assigning his leasehold interest in favour of the partnership firm.
3. In fact, the question now raised was considered by this
court in paragraph 6 of the judgment sought to be reviewed. This
court opined that such a defense could have been raised by
sarvothama kamath if his eviction was sought for on the ground of
sublease but petitioners cannot seek protection of section 106 of the
Act as they are neither the lessee nor assignees of the lessee and as
the construction was made not by the lessee but by petitioner No.2
who had no privity of contract with the landlord.
4. The decision of this court rest on the finding that to avail
protection of section 106 of the Act, construction has to be made by
the lessee, his legal representatives or assignee as the explanation to
section 106(1) of the Act says whereas, in this case it is admitted that
construction was not made by the lessee, his legal representative or
assignee and there is no case of assignment of leasehold right in
R.P.No.284 of 2010 in S.A.No.25 of 1996
5
favour of petitioners.
5. A review is not a substitute for an appeal. Even an
erroneous decision on merit cannot be the subject matter of a review.
A review is permitted when there is a mistake or error apparent on the
face of record or when any of the other grounds mentioned in Order 47
Rule 1 of the Code of Civil Procedure (for short, “the Code”) exist. No
error can be said to be apparent on the face of record if it required a
long drawn reasoning to establish it (See Kurian Varghese Vs. State
of Kerala (1989 (2) KLJ 723) and Delta foundations &
Constructions Vs. K.S.C. Corporation (2003(1) KLT 626). “Error
apparent on face of record” means an error which strikes one on mere
looking at the record (See Meera Bhanja Vs. Nirmala Kumari
Choudhury (AIR 1995 SC 455). I have gone through the judgment
sought to be reviewed and the grounds urged in this petition. What is
urged is virtually a rehearing of the appeal itself. But a review court
cannot act as an appellate court. I am satisfied that there is no
mistake or error apparent on the face of record or any other reason as
provided under order 47 Rule 1 of the Code to justify a review.
This petition is therefore dismissed but without any order as to
costs.
THOMAS P JOSEPH,
JUDGE
Sbna/