Kerala High Court
Happy Maxwell vs Maxwell.M.Chennur on 13 June, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
TUESDAY, THE 13TH DAY OF JUNE 2023 / 23RD JYAISHTA, 1945
REVIEW PETITION NO. 592 OF 2023
AGAINST THE JUDGMENT DATED 25.11.2022 IN MAT.APPEAL
NO.447 OF 2014 OF THE HIGH COURT OF KERALA
REVIEW PETITIONER/APPELLANT:
HAPPY MAXWELL
AGED 49 YEARS, D/O E.K.ANTONY, ELANKUNNAPUZHA
HOUSE NAYARAMBALAM VILLAGE, NAYARAMBALAM P.O
ERNAKULAM HISTRICT, PIN - 682509.
BY HAPPY MAXWELL(Party-In-Person)
RESPONDENTS/RESPONDENTSS:
1 MAXWELL.M.CHENNUR,
AGED 60 YEARS, S/O MICHAEL.J.CHENNUR, CHENNUR
HOUSE, VYDYARUPADI STOP, PALLIPURAM P.O.,
ERNAKULAM DISTRICT, PIN - 682509.
2 BINURAJ ANTONY,
S/O ANTONY, RESIDING AT ALAPPAT HOUSE, CHURCH
AVENUE ROAD, NORTH PARAVUR, PARAVUR VILLAGE,
PARAVUR TALUK ERNAKULAM DISTRICT, PIN - 683513.
BY ADV R.LEELA
THIS REVIEW PETITION HAVING COME UP FOR ADMISSION
ON 09.06.2023, THE COURT ON 13.06.2023 DELIVERED THE
FOLLOWING:
2
Review Petition No.592 of 2023
in Mat.Appeal No.447 of 2014
ORDER
P.G. Ajithkumar, J.
The appellant in Mat.Appeal No.447 of 2014 is the
petitioner. She filed this Review Petition invoking the provisions
of Section 114 of the Code of Civil Procedure, 1908.
2. The petitioner filed Mat.Appeal No.447 of 2014
assailing the judgment and decree in O.P.No.1968 of 2009 of
the Family Court, Ernakulam. The appeal was allowed as per
the judgment dated 25.11.2022 and O.P.No.1968 of 2009 was
remanded to the Family Court for fresh disposal. That
judgment is sought to be reviewed.
3. Heard the petitioner, who appeared in person and
Advocate R.Leela, the learned counsel appearing for the 1st
respondent.
4. The petitioner wants to review the judgment dated
25.11.2022 as regards the observation/direction in paragraph
No.18 of the judgment that "the witness already examined
shall be recalled for the purpose of further chief examination
and cross examination, if any." The petitioner would contend
that the Family Court acting upon the aforesaid direction in
Review Petition No.592 of 2023
in Mat.Appeal No.447 of 2014
the judgment dated 25.11.2022, particularly, "if any" allowed
I.A.No.7 of 2023 filed by the 1st respondent and issued
summons to the Doctors, who issued Exts.X1 to X3 medical
record/certificate. In the view of the petitioner, examination of
those witnesses would invade upon her privacy, which is not
permissible. The petitioner would contend that summoning of
the Doctors became possible on account of the aforesaid
direction in paragraph No.18 of the judgment dated
25.11.2022, which stands as an error and it requires review.
5. After the remand O.P.No.1968 of 2009 was
transferred to the Family Court, North Paravur on its
commencement, where it was numbered as O.P.No.1 of 2023.
As per the order in I.A.No.7 of 2023 in O..P.No.1968 of 2009
witnesses were summoned. Against that order, the petitioner
filed O.P.(FC) No.132 of 2023. That Original Petition was
dismissed by this Court as per the judgment dated
22.05.2023. The petitioner filed O.P.(FC) No.132 of 2023
raising contentions similar to those in this petition. This Court
after considering the contention of the petitioner that
examination of the Doctors would amount to infringement of
Review Petition No.592 of 2023
in Mat.Appeal No.447 of 2014
her right to privacy, in the light of the law laid down by the
Apex Court in Justice K.S Puttaswamy (Retired) and
another v Union of India and others [(2017) 10 SCC 1]
dismissed that Original Petition. This Court further directed
the Family Court, North Paravur to dispose of O.P.No.1 of
2023 within a period of three months.
6. One of the grounds of appeal in Mat.Appeal No.447
of 2014 filed by the petitioner was that the Family Court
received the medical evidence, Exts.X1 to X3; without any
basis. The petitioner wanted to set aside the judgment dated
26.10.2013 in O.P.No.1968 of 2009 (presently O.P.No.1 of
2023 before the Family Court, North Paravur) since that
judgment was rendered without hearing her and considering
her evidence. Accepting that contention the decree in
O.P.No.1968 of 2009 was set aside and the matter was
remanded for fresh consideration. The learned counsel for the
1st respondent, Advocate R.Leela, would point out that once a
matter is remanded for fresh trial, both parties will have the
right and opportunity to adduce further evidence. Apart from
that, in order to afford a further opportunity to the petitioner
Review Petition No.592 of 2023
in Mat.Appeal No.447 of 2014
to challenge the evidence already let in by the opposite party
and also to adduce further evidence, if any, on her side, such
a direction was given. In that fact situation, how can the
petitioner contend that such a direction/observation is an
error apparent on the face of the record?
7. In Meera Bhanja v. Nirmala Kumari Choudhury
[(1995) 1 SCC 170] the Apex Court held that review
proceedings are not by way of an appeal and have to be
strictly confined to the scope and ambit of Order XLVII, Rule 1
of the Code.
8. In Parsion Devi v. Sumitri Devi [(1997) 8 SCC
715] the Apex Court, in the context of the power of review
under Order XLVII, Rule 1 of the Code held that, 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 that 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
of review under Order XLVII, Rule 1 of the Code. In the
exercise of the jurisdiction under Order XLVII, Rule 1 of the
Review Petition No.592 of 2023
in Mat.Appeal No.447 of 2014
Code, it is not permissible for an erroneous decision to be
"reheard and corrected". A review petition has a limited
purpose and cannot be allowed to be "an appeal in
disguise".
9. In Lily Thomas v. Union of India [(2000) 6
SCC 224] the Apex Court reiterated that, the power of review
can be exercised for correction of a mistake but not to
substitute a view. The review cannot be treated as an appeal
in disguise. The mere possibility of two views on the subject is
not a ground for review.
10. In Anantha Reddy N. v. Anshu Kathuria
[(2013) 15 SCC 534] the Apex Court held that, the review
jurisdiction is extremely limited and unless there is mistake
apparent on the face of the record, the order/judgment does
not call for a review. The mistake apparent on record means
that the mistake is self-evident, needs no search, and stares
at its face. Surely, review jurisdiction is not an appeal in
disguise. The review does not permit the rehearing of the
matter on merits.
Review Petition No.592 of 2023
in Mat.Appeal No.447 of 2014
11. The Apex Court in S.Madhusudhan Reddy v.
V.Narayana Reddy and others [2022 SCC OnLine SC
1034 : 2022 (5) KLT SN 18] held that the Court's
jurisdiction of review is not the same as that of an appeal. A
judgment can be open to review if there is a mistake or an
error apparent on the face of the record, but an error that has
to be detected by a process of reasoning, cannot be described
as an error apparent on the face of the record for the Court to
exercise its powers of review under Order XLVII Rule 1 of the
Code.
12. From the proposition of law laid down in the
aforesaid decisions, it is clear that one cannot apply for review
by asking the court to substitute a view taken in the
judgment. An error that is apparent on the face of the record
alone can be a ground for review. The ground for review
urged by the petitioner that examination of the doctors will
infringe her privacy is one set forth newly when her challenge
to the order in I.A.No.7 of 2023 in O.P.No.1 of 2023 failed.
Such a plea was never raised in the appeal. The contentions in
the petition do not establish that there is an apparent error in
Review Petition No.592 of 2023
in Mat.Appeal No.447 of 2014
the judgment dated 25.11.2022. In such circumstances, we
are of the view that the review petition is bereft of any merit
and it is only liable to be dismissed.
Accordingly, this Review Petition is dismissed.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
P.G. AJITHKUMAR, JUDGE
dkr
Review Petition No.592 of 2023
in Mat.Appeal No.447 of 2014
APPENDIX OF RP 592/2023
PETITIONER ANNEXURES
Annexure 1 TRUE COPY OF THE ORDER DATED
23/02/2023 IN IA 7/2023 IN OP NO.
1/2023 PASSED BY THE HONBLE FAMILY
COURT NORTH PARAVUR.
Annexure 2 TRUE COPY OF THE JUDGEMENT DATED
22/05/2023 IN OP(FC) 132 OF 2023
Annexure 3 TRUE COPY OF THE DATED 03/12/2021 IN
WPC NO. 102933/2021 OF HONBLE HIGH
COURT OF KARNATAKA, DHARWAD BENCH.
