Thresiakutty Mathew vs Elikutty
2021 Latest Caselaw 12269 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

                THE HONOURABLE MR. JUSTICE A.HARIPRASAD

       FRIDAY, THE 7TH DAY OF MAY 2021/17TH VAISAKHA, 1943

                   RP.No.262 OF 2021 IN AS. 484/1998

  AGAINST THE    JUDGMENT DATED 16-11-2018 IN AS 484/1998 OF HIGH
                           COURT OF KERALA


REVIEW PETITIONERS/APPELANTS 2 TO 7       :

      1      THRESIAKUTTY MATHEW, W/O. LATE MATHEW,
             RESIDING AT VALLIYOTTIL, MANGALAM AMSOM,
             ALATHUR TALUK, PALAKKAD DISTRICT.

      2      SEBASTIAN MATHEW @ JOY,
             S/O. LATE MATHEW, RESIDING AT VALLIYOTTIL,
             MANGALAM AMSOM, ALATHUR TALUK, PALAKKAD DISTRICT.

      3      BENNY MATHEW,
             S/O. LATE MATHEW, RESIDING AT VALLIYOTTIL,
             MANGALAM AMSOM, ALATHUR TALUK, PALAKKAD DISTRICT.

      4      MARY PAUL,
             D/O. LATE MATHEW, RESIDING AT VALLIYOTTIL,
             MANGALAM AMSOM, ALATHUR TALUK, PALAKKAD DISTRICT.

      5      SIGI SAJI,
             D/O. LATE MATHEW, RESIDING AT VALLIYOTTIL,
             MANGALAM AMSOM, ALATHUR TALUK, PALAKKAD DISTRICT.

      6      JOMON MATHEW,
             S/O. LATE MATHEW, RESIDING AT VALLIYOTTIL,
             MANGALAM AMSOM, ALATHUR TALUK, PALAKKAD DISTRICT.

             BY ADVS.SRI.P.R.VENKATESH.


RESPONDENTS/RESPONDENTS    :

      1      ELIKUTTY, W/O. ULAHANNAN,
             RESIDING AT THANICHUVATTIL,
             KUTHATTUKULAM VILLAGE AND DESOM,
             MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT-686661.

      2      SIMMY, S/O. ELIKUTTY, RESIDING AT THANICHUVATTIL,
             KUTHATTUKULAM VILLAGE AND DESOM, MUVATTUPUZHA TALUK,
             ERNAKULAM DISTRICT-686661.
 R.P.No.262 of 2021
       in                         2
A.S.No.484 of 1998

       3       SHONE,
               S/O. ELIKUTTY, RESIDING AT THANICHUVATTIL,
               KUTHATTUKULAM VILLAGE AND DESOM,
               MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT-686661.

       4       JOMON,
               S/O. ELIKUTTY, RESIDING AT THANICHUVATTIL,
               KUTHATTUKULAM VILLAGE AND DESOM, MUVATTUPUZHA
               TALUK, ERNAKULAM DISTRICT-686661.

                     BY ADV.SRI.ABRAHAM VAKKANAL (SENIOR ADVOCATE)



     THIS  REVIEW   PETITION   HAVING  BEEN   FINALLY  HEARD    ON
22-03-2021, THE COURT ON 07-05-2021 PASSED THE FOLLOWING:
 R.P.No.262 of 2021
       in                                  3
A.S.No.484 of 1998




                                 A.HARIPRASAD, J
                              ------------------------------

R.P NO.262 OF 2021 IN A.S NO.484 OF 1998

--------------------------------

Dated this the 7th day of May, 2021

Review petitioners are the appellants 2 to 7 in A.S.No.484 of 1998,

disposed by this Court as per judgment dated 16.11.2018. The suit was one for

specific performance of Ext.A3 contract dated 18.09.1993 executed between the

plaintiff and the 1st defendant for herself and on behalf of her children

(defendants 2 to 4) who were minors at that time. Above suit was tried by the

court below along with O.S.No.164 of 1994. That was a suit for prohibitory

injunction simplicitor filed by the defendants in O.S.No.166 of 1994 against the

original plaintiff/appellant. In the injunction suit, the averments were that the

defendant therein tried to trespass upon the property involved in Ext.A3 contract

and to reduce the property into his possession. After jointly trying the above

suits, the trial court found that the original appellant (plaintiff) was not entitled to

get a relief of specific performance of Ext.A3 contract and therefore the suit was

dismissed. Consequently, O.S.No.164 of 1994 filed by the respondents was

decreed. Aggrieved by the decree in O.S.No.164 of 1994 the original appellant

preferred an appeal before the District Court. That court dismissed the appeal in

limine at the stage of admission itself under Order XLI Rule 11 of the Code of

Civil Procedure, 1908 (in short, "the Code"). Learned District Judge observed R.P.No.262 of 2021

A.S.No.484 of 1998

that the trial Judge was fully justified in decreeing O.S.No.164 of 1994. Learned

District Judge further observed that the judgment and decree in O.S.No.164 of

1994 would not operate as res judicata in respect of O.S.No.166 of 1994

because there was no issue regarding right of the appellant to get a decree for

specific performance of Ext.A3 contract. With the above observations, the appeal

was dismissed by the District Court in limine. Finer questions relating to Section

11 and Order II Rule 2 of the Code arose in the appeal for consideration.

2. Ext.A3 is a disputed document. Plaintiff in the above suit contended

that himself and the 1st defendant entered into a contract for sale of plaint

schedule property on 18.09.1993. Admittedly, the properties scheduled to the

plaint belonged to the 1 st defendant and her deceased husband. It is the

assertion in the plaint that the 1st defendant herself and on behalf of her minor

children executed Ext.A3. Price agreed to between the parties was `62,000/- per

acre and an amount of `1,00,000/- was paid by the plaintiff to the 1st defendant

as advance sale consideration. Balance sale consideration was to be paid after

measurement of the property. In spite of repeated demands the 1 st defendant

was not ready to discharge her obligations under Ext.A3.

3. Defendants opposed the plaint claim contending that the plaintiff had

earlier filed a suit for prohibitory injunction as O.S.No.37 of 1994 and it was

dismissed on 24.08.1994. Plaint schedule property admittedly belonged to 1 st

defendant and her minor children. This fact was known to the plaintiff at the time

of entering into Ext.A3 contract. No permission under the Guardians and Wards

Act, 1890 was obtained by either of the parties from the District Court concerned. R.P.No.262 of 2021

A.S.No.484 of 1998

Ext.A3 was not beneficial to the minor's interest. According to the defendants,

Ext.A3 is legally unenforceable and it is bad for misrepresentation, threat, fraud

and coercion.

4. Trial court dismissed O.S.No.166 of 1994. It did not even order

return of advance amount to the plaintiff. In the appeal, this Court, on re-

appreciation of the entire evidence, held that the review petitioners (plaintiffs) are

not entitled to get a decree for specific performance of Ext.A3 contract. Appeal

was dismissed finding no merit. However, as conceded by the learned senior

counsel on behalf of the contesting respondents that they are prepared to return

the advance money with 9% interest per annum from the date of Ext.A3 till the

date of judgment of this Court, such a relief was granted to the review

petitioners.

5. It is also brought to notice that the review petitioners unsuccessfully

made an attempt to challenge the judgment and decree passed by this Court in

A.S.No.484 of 1998 before the apex Court. However, the Supreme Court

dismissed the Special Leave Petition.

6. Questions relating to the applicability of Order II Rule 2 of the Code

to the pleas raised by the review petitioners, as appellants, were considered in

extenso by this Court in paragraphs 9 to 23. In the course of discussion, this

Court has considered not only the statutory provisions but also the ratio

decidendi in Gurbux Singh v. Bhooralal (AIR 1964 SC 1810), Virgo Industries

(Eng.) Private Limited v. Venturetech Solutions Private Limited ((2013) 1

SCC 625), Sasidharan Nair v. Kunju Mohammed Unni (2017 (3) KLT 751) and R.P.No.262 of 2021

A.S.No.484 of 1998

Rathnavathi v. Kavita Ganashamdas ((2015) 5 SCC 223).

7. Learned counsel submitted notes of arguments on behalf of the

review petitioners and respondents. After hearing the learned counsel for review

petitioners and the learned senior counsel for contesting respondents and on

perusal of notes of arguments, coupled with the relevant decisions cited, I am of

the view that the review is not maintainable for the following reasons.

8. According to the learned counsel for the review petitioners, finding of

this Court that the plaintiffs' suit is barred under Order II Rule 2 of the Code is

erroneous since in Virgo Industries (supra) no law or stipulation or any straight

jacket formula has been laid down that in all cases based on agreement for sale,

filing of any suit for injunction prior to the filing of suit for specific performance will

result in the suit being hit by Order II Rule 2 of the Code. According to him, the

decisions in Virgo Industries, Rathnavathi and Sucha Singh Sodhi v. Baldev

Raj Walia ((2018) 6 SCC 733) are distinguishable on facts. Per contra, learned

senior counsel would contend that the judgment rendered by the Supreme Court

in Virgo Industries explaining the principles under Order II Rule 2 of the Code is

binding on this Court as a law declared by the Supreme Court under Article 141

of the Constitution. Learned senior counsel also placed reliance on Gurbux

Singh to reinforce the bar under Order II Rule 2 in this case. It is also pointed out

that the decision in Virgo Industries has been followed by another Division

Bench of this Court in Sasidharan Nair. For that reason also a Single Judge is

bound to follow the ratio in Virgo Industries.

9. Review petitioners' counsel strongly contended that the decision in R.P.No.262 of 2021

A.S.No.484 of 1998

Virgo Industries arose from a proceeding under Article 227 of the Constitution

filed before the Madras High Court wherein the defendants sought to strike off

the plaint filed for specific performance on the ground that they had earlier filed a

suit for injunction. That court declined to exercise its jurisdiction under Article 227

of the Constitution and also that the suits were not hit by Order II Rule 2 of the

Code. That proceeding was challenged before the Supreme Court and the

Supreme Court allowed the appeal setting aside the judgment of the Madras

High Court and the plaints were struck off. Forceful arguments advanced by the

learned counsel for the review petitioners is that the ratio in Virgo Industries

shall not be followed because the basis of the same was on a proceeding under

Article 227 of the Constitution and therefore the dictum cannot have force of law

under Article 141 and it can only be one under Article 142. This argument is

stoutly denied by the learned senior counsel contending that on a complete

reading of the judgment in Virgo Industries, it will not support such a legal

proposition. Moreover, that decision has been followed by the apex Court and

this Court in so many other decisions. Single Benches are bound to follow the

ratio in the Larger Bench decisions of this Court and the Supreme Court. If at all

there is any remedy available to the review petitioners, it is to approach the apex

Court for appropriate reliefs.

10. In addition to that, this Court in the judgment rendered in appeal has

also held that the claim in the suit is barred by res judicata under Section 11 of

the Code by virtue of the attainment of finality in the judgment in O.S.No.164 of

1994. That aspect is also beyond any challenge at this point in time. Decision in R.P.No.262 of 2021

A.S.No.484 of 1998

Virgo Industries is rendered by two Hon'ble Judges of the Supreme Court.

Reliance placed by the learned counsel for review petitioners on Vithalbhai (P)

Ltd. v. Union Bank of India ((2005) 4 SCC 315), a decision by a co-equal

bench, cannot salvage the situation. Considering the ratio in Gurbux Singh

rendered by a Constitution Bench, I find that the decision in Inbasagaran v.

S.Natarajan ((2015) 11 SCC 12) does not lay down a different principle.

Therefore, that plea raised by the review petitioners is also not sustainable.

11. Learned senior consel relying on a large number of decisions

rendered by the apex Court and this Court contended that the review court does

not sit in appeal over its own order. A re-hearing of the matter is impermissible in

law. To support this argument, reliance is placed on Shri Ram Sahu (dead)

through Lrs. v. Vinod Kumar Rawat and others (SLP (Civil) No.28150 of

2017 - judgment dated 03.11.2020). In that decision all the relevant decisions

pertaining to the powers of review have been reiterated. I need not cite all the

decisions referred to in Shri Ram Sahu over and over again since it is a well

settled principle that it is not permissible for an erroneous decision to be re-heard

and corrected. A review petition has a limited purpose and cannot be treated as

an appeal in the disguise. This principle has been lucidly held in Kerala State

Electricity Board v.Sulabha Marketing (P) Ltd. (2018 (1) KLT 765). It has been

held in State of West Bengal and others v. Kamal Sengupta and another

((2008) 8 SCC 612) that the term "mistake or error apparent" by its very

connotation signifies an error which is evident per se from the record of the case

and does not require a detailed examination, scrutiny and elucidation either of R.P.No.262 of 2021

A.S.No.484 of 1998

the facts or the legal position. If an error is not self-evient and detection thereof

requires long debate and process of reasoning, it cannot be treated as an error

apparent on the face of the record for the purpose of Order XLVII Rule 1 of the

Code.

Having regard to the factual issues and legal propositions, I am of the view

that the review petitioners miserably failed to establish any error apparent on the

face of the record or other reasons referable to Order XLVII Rule 1 of the Code

to claim a review. Hence the review petition is dismissed.

A.HARIPRASAD

JUDGE

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