Kerala High Court
K.Rathindran vs Pathapoyil Raghavan on 7 May, 2024
Author: T.R. Ravi
Bench: T.R.Ravi
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
TUESDAY, THE 7TH DAY OF MAY 2024 / 17TH VAISAKHA, 1946
RP NO. 480 OF 2021
AGAINST THE JUDGMENT IN RSA 756/2019 OF HIGH COURT OF
KERALA
AS No.41/2015 OF ADDITIONAL DISTRICT COURT-III, THALASSERY
OS No.365/2012 OF MUNSIFF COURT, THALASSERY
REVIEW PETITIONERS/APPELLANTS:
1 K.RATHINDRAN
AGED 65 YEARS
S/O. LATE KRISHNAN KUNIYIL, RESIDING AT RAIL
VIEW, KODIYERI AMSOM, EDANNUR DESOM, P. O.
KURUCHIYIL, THALASSERY TALUK.
2 K. MANOJ
S/O. LATE KRISHNAN KUNIYIL, AGED 59 YEARS,
RESIDING AT RAIL VIEW, KODIYERI AMSOM, EDANNUR
DESOM, P. O. KURUCHIYIL, THALASSERY TALUK.
3 JANAKI
W/O. LATE KRISHNAN KUNIYIL, AGED 90 YEARS,
RESIDING AT RAIL VIEW, KODIYERI AMSOM, EDANNUR
DESOM, P. O. KURUCHIYIL, THALASSERY TALUK.
4 NALINI
D/O. LATE KRISHNAN KUNIYIL, AGED 73 YEARS,
RESIDING AT RAIL VIEW, KODIYERI AMSOM, EDANNUR
DESOM, P. O. KURUCHIYIL, THALASSERY TALUK.
5 PAVITHRAN
S/O. LATE KRISHNAN KUNIYIL, AGED 71 YEARS,
RESIDING AT RAIL VIEW, KODIYERI AMSOM, EDANNUR
DESOM, P. O. KURUCHIYIL, THALASSERY TALUK.
6 MOHANAN
S/O. LATE KRISHNAN KUNIYIL, AGED 68 YEARS,
RESIDING AT RAIL VIEW, KODIYERI AMSOM, EDANNUR
DESOM, P. O. KURUCHIYIL, THALASSERY TALUK.
7 VALSALA
D/O. LATE KRISHNAN KUNIYIL, AGED 69 YEARS,
RESIDING AT RAIL VIEW, KODIYERI AMSOM, EDANNUR
DESOM, P. O. KURUCHIYIL, THALASSERY TALUK.
R. P. No.480 of 2021
2
8 BEENA
D/O. LATE KRISHNAN KUNIYIL, AGED 62 YEARS,
RESIDING AT RAIL VIEW, KODIYERI AMSOM, EDANNUR
DESOM, P. O. KURUCHIYIL, THALASSERY TALUK.
9 REENA
D/O. LATE KRISHNAN KUNIYIL, AGED 60 YEARS,
RESIDING AT RAIL VIEW, KODIYERI AMSOM, EDANNUR
DESOM, P. O. KURUCHIYIL, THALASSERY TALUK.
10 RAJESH
S/O. LATE KRISHNAN KUNIYIL, AGED 57 YEARS,
RESIDING AT RAIL VIEW, KODIYERI AMSOM, EDANNUR
DESOM, P. O. KURUCHIYIL, THALASSERY TALUK.
BY ADVS.
SRI T.C.SURESH MENON
SRI P.S.APPU
RESPONDENT/RESPONDENT:
PATHAPOYIL RAGHAVAN
AGED 69 YEARS
S/O. MADHAVIU, RESIDING AT THAYYIL HOUSE,
KODIYERI AMSOM, EDANNUR DESOM, P. O. KURUCHIYIL,
THALASSERY TALUK, PIN-670102.
BY ADVS.
SRI RAJESH V.NAIR
SRI R.PARTHASARATHY
THIS REVIEW PETITION HAVING COME UP FOR ADMISSION
ON 18.12.2023, THE COURT ON 7.5.2024 DELIVERED THE
FOLLOWING:
R. P. No.480 of 2021
3
T.R. RAVI, J.
--------------------------------------------
R. P. No.480 of 2021
in
R.S. A. No.756 of 2019
--------------------------------------------
Dated this the 7th day of May, 2024
ORDER
The review petitioners are the appellants in R.S.A.No.756
of 2019. The Second Appeal was dismissed by this Court at the
admission stage, finding that no substantial questions of law
arose. The petitioners have filed this review petition stating
that this Court has committed an error in dismissing the Second
Appeal, without issuing notice to the respondent. It is argued
that hardship will be caused to the review petitioners if the right
of way is provided to the plaintiff since it would divide their
property into two. It is also sought to be contended that the
plaintiff has no access to his property.
2. The scope for a review under Section 140 read with
Order XLVII Rule 1 of the Code of Procedure, 1908 has been
considered elaborately, recently, by the Hon'ble Supreme Court
in the judgment in State of Telangana V. Muhammed Abdul
Kazim [2024 SCC online SC 548]. The Court has held that
the words "as it thinks fit" cannot be interpreted to mean
anything beyond what is conferred under Order 47 Rule 1. The
Court further held that the words "due diligence" though one of
fact, places the onus heavily on the one who seeks a review.
Paragraph 20 of the judgment is extracted for reference.
"20. Mistake or error apparent on the face of record would
debar the court from acting as an appellate court in disguise,
by indulging in a re-hearing. A decision, however, erroneous,
can never be a factor for review, but can only be corrected in
appeal. Such a mistake or error should be self-evident on
the face of record. The error should be grave enough
to be identified on a mere cursory look, and an omission so
glaring that it requires interference in the form of a review.
Being a creature of the statute, there is absolutely no room
for a fresh hearing. The court has got no role to involve itself
in the process of adjudication for a second time. Instead, it
has to merely examine the existence of an apparent mistake
or error. Even when two views are possible, the court shall
not indulge itself by going into the merits."
3. It can be seen from the law declared/reiterated by
the Hon'ble Supreme Court that a decision, however erroneous,
can never be a factor for review but can only be corrected in an
appeal. It is further evident that being a creature of a Statute,
there is absolutely no room for a fresh hearing in a review
application and the Court has no role to involve itself in a
process of adjudication for a second time. The role of the Court
is merely to examine the existence of an apparent mistake or
error. Keeping in view the contours of jurisdiction on a review
petition, let me examine the case on record.
4. This Court while dismissing the appeal considered the
two questions which were raised in the memorandum of Second
Appeal and another question that was sought to be raised at the
time of the hearing and found that none of the questions would
arise in the case. The Court found that there is no inconsistency
in the pleadings of the plaintiff, that the plaintiff has specifically
pleaded easement by prescription, that the existence of an
alternate pathway, even if it is to be found, will not destroy the
claim for easement by prescription and that it is not a case
where the plaintiff had tendered evidence on the question of
easement of necessity and not for easement of prescription.
There is nothing legally wrong or factually wrong in the above-
said findings. The Court has also considered the fact that the
review petitioners had not tendered any evidence in the case
and had not chosen to mount the box to state their case. None
of the requirements justifying the exercise of the power of
review have been made out.
The review petition fails and is dismissed.
/- Sd/-
T.R. RAVI
JUDGE
dsn
