Madras High Court
Bovas vs George on 7 October, 2021
REV.APLC(MD)No.38 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 28.06.2022
PRONOUNCED ON :14.07.2022
CORAM
THE HONOURABLE MR.JUSTICE K.MURALI SHANKAR
REV.APLC(MD)No.38 of 2022
Bovas : Petitioner
Vs.
1.George
2.Anitha Bose
3.Victor Bose
4.Ramani : Respondents
PRAYER: Review Application has been filed under Order 47 Rule 1 C.P.C., to
set aside the order passed in C.R.P.(MD)No.720 of 2021, dated 07.10.2021.
For Petitioner : Mr.M.P.Hari Prasad
For Respondents : Mr.M.P.Senthil
for R.1
: No Appearance for R.2 to R.4
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REV.APLC(MD)No.38 of 2022
ORDER
The petitioner in the Civil Revision Petition has filed the above review
application to review the order passed in C.R.P.(MD)No.726 of 2021, dated
07.10.2021. The Civil Revision Petition has been filed against the order passed
in I.A.No.1 of 2021 in A.S.No.15 of 2019, dated 30.03.2021, on the file of the
Additional District Judge, Kuzhithurai dismissing the petition filed under Order
6 Rule 17 C.P.C.
2. The petitioner has filed a suit in O.S.No.205 of 2012 for partition and
allotment of ½ share in the suit properties. The learned Subordinate Judge, after
trial, has passed a judgment and decree dated 15.12.2018 dismissing the suit.
The petitioner, aggrieved by the dismissal of the suit, has preferred an appeal in
A.S.No.15 of 2019 and the same is pending on the file of the Additional District
Court, Kuzhithurai. Pending appeal, the petitioner has fled a petition in I.A.No.1
of 2021 under Order 6 Rule 17 C.P.c., for amending the plaint. The learned
Additional District Judge, Kuzhithurai, after enquiry, has passed an order dated
13.03.2021, dismissing the same. The petitioner, challenging the said order of
dismissal, has filed a revision in C.R.P.(MD)No.726 of 2021. Since the
respondents have not turned up, this Court, after hearing the arguments advanced
by the petitioner's side and upon considering the materials placed on record, has
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REV.APLC(MD)No.38 of 2022
passed the impugned order dated 07.10.2021, dismissing the revision.
Challenging the dismissal of the revision petition, the above review application
came to be filed.
3. The main contention of the petitioner is that the question as to whether
the trial Court was justified in not giving a reasonable opportunity to the
petitioner for amending the plaint before delivering the judgment, when one
defect was noticed by the Court in the extent of the schedule property itself is the
main ground for the dismissal of the suit has not been considered, that the
revisional Court has not considered that the trial Court, out of three defects,
found out only one defect and the other two defects were noticed by the
petitioner himself, that the third defect is only with respect to sub division
numbers, which were erroneously shown, that the appellate Court as well as the
revisional Court have failed to consider that the proposed amendment does not
affect other issues, that there is also no dispute with respect to the proposed
extent of the suit schedule properties and that the revisional Court has also failed
to consider that the first appellate Court should have exercised its discretion in
favour of the proposed amendment.
4. The learned Counsel for the first respondent would strongly contend
that the very review application is legally not maintainable, that there is no
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REV.APLC(MD)No.38 of 2022
apparent error on the face of the record warranting the review of the order, that
the above review application does not fit within the purview of Order 47 Rule 1
C.P.C., and that therefore, the review application is liable to be dismissed.
5. A perusal of the Order 47 Rule 1 C.P.C., shows that the review of a
judgment or an order could be sought (a) from the discovery of the new and
important matters or evidence which after the exercise of due diligence was not
within the knowledge of the applicant; (b) such important or evidence could not
be produced by the applicant at the time when the decree was passed or the order
made and (c) on account of some mistake or error apparent on the face of the
record or any other sufficient reason. It is settled law that the review
proceedings are not by way of an appeal and have to be strictly confined to the
scope and ambit of Order 47 Rule 1 C.P.C.. The Hon'ble Supreme Court in
Parsion Devi and Others vs Sumitri Devi and Others reported in (1997)8 SCC
715, has observed thus:
“9. Under Order 47 Rule 1 CPC 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 which 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 47 Rule I CPC. In
exercise of the jurisdiction under Order 47 Rule 1 CPC it is not
permissible for an erroneous decision to be "reheard and
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REV.APLC(MD)No.38 of 2022
corrected". A review petition, it must be remembered has a limited
purpose and cannot be allowed to be "an appeal in disguise". “
6. In Lily Thomas, Etc. vs Union Of India and Others reported in
(2000)6 SC 224, the Hon'ble Apex Court has held that the power of review can
be exercised for correction of a mistake and not to substitute a view and such
powers can be exercised within the limits of the statute dealing with the exercise
of power. It is beyond any doubt or dispute that the review Court does not sit in
appeal over its own order. It is settled law that a rehearing of the matter is
impermissible in law. The word “review” would mean the act of looking offer
something again with a view to correction or improvement. No doubt, the
review is the creation of a statute and not an inherent power. It is also not an
appeal in disguise. A judgment may be open to review inter alia if there is a
mistake or an error apparent on the face of the record under Order 47 Rule 1
C.P.C. An error which 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 to review under Order 47 Rule 1 C.P.C,
it is not permissible for an erroneous decision to be reheard and corrected, but a
review petition must be remembered has a limited purpose and cannot be
allowed to be an 'appeal disguise'.
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REV.APLC(MD)No.38 of 2022
7. The learned Counsel for the first respondent has relied on a judgment of
this Court in M.Kamala Kannan and Others Vs. M.Manikandan reported in
2014(3) CTC 28. A learned Senior Judge of this Court, after referring to various
decision of the Hon'ble Supreme Court and other High Courts, has reiterated the
position of law that a review petition cannot be construed to be an appeal in
disguise and the relevant passage is extracted herein:
“ 11. It is settled position of law that a Review Petition cannot
be construed to be an Appeal in disguise. Even in case of an
erroneous decision also, Review is not permissible to rehear the
Appeal. The Judgment can be reviewed only if there is an error
apparent on the face of the record as contemplated under Order 47,
Rule 1 of the Code of Civil Procedure. The Review Petitioner
cannot reargue the matter on merits and in such case, the remedy
available to the Review Petitioner is to file an Appeal and not
review, when the findings in the Appeal are adverse to them. The
review power may be exercised when some mistake or error
apparent on the face of the record is found and the review power
cannot be exercised on the ground that decision was erroneous on
merits. The Review proceedings are not by way of Appeal and have
to be strictly confined to the scope and ambit of Order 47, Rule 1 of
the Code of Civil Procedure. An error on the face of the record
must be such an error which must strike one on mere looking at the
record and would require any long drawn process of reasoning on
the points where there may be conceivable be two opinions. A
rehearing of the matter is impermissible in law. It constitutes an
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REV.APLC(MD)No.38 of 2022
exception to the general rule that once a Judgment is signed or
pronounced, it should not be altered. It is also trite that exercise of
inherent jurisdiction is not invoked for reviewing any order.”
8. Now coming to the case on hand, this Court, while dismissing the
revision petition, has specifically observed that though the defendants have filed
a written statement raising a specific plea with regard to the description of the
properties and the trial Court has also framed a specific issue and that the
petitioner had participated in the trial and adduced evidence in respect of the
issues framed and thereafter only, the trial Court has given a specific finding
with respect to that issue. The proviso to Order 6 Rule 17 Cr.P.C., makes it clear
that the amendment application cannot be allowed after the trial was commenced
unless and until the Court comes to the conclusion that inspite of due diligence,
the party could not have raised the matter before the commencement of trial.
Since the respondents have taken a specific defence with respect to the
description of properties and a specific issue was framed by the trial Court, it
cannot be said that inspite of his due diligence, he could not introduce the
proposed amendments before the trial Court. This Court, by observing so and
also by recording its agreement with the decision of the appellate Court in
dismissing the amendment petition, dismissed the revision petition.
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REV.APLC(MD)No.38 of 2022
9. As rightly contended by the learned Counsel for the first respondent,
the petitioner has nowhere whispered in the review petition as to how Order 47
Rule 1 C.P.C., gets attracted to the case on hand. The learned Counsel for the
petitioner has reiterated his arguments with regard to the merits of the case, but
not with respect to the grounds or reasons on the basis of which the review was
preferred.
10. As already pointed out, the review petitioner cannot reargue the matter
on merits. Moreover, he does not come within the purview of Order 47 Rule 1
C.P.C., warranting review of the order. Considering the above, this Court is of
the view that the petitioner has not shown any error apparent on the face of the
record or any other ground to attract Order 47 C.P.C., to interfere with the order
of the revisional Court. Hence, this Court concludes that the Review Application
is absolutely devoid of merits and the same is liable to be dismissed.
11. In the result, the Review Application is dismissed. No costs.
14 .07.2022.
Index : Yes/No
Internet : Yes/No
SSL
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REV.APLC(MD)No.38 of 2022
NOTE: In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may be
utilized for official purposes, but, ensuring that the copy of
the order that is presented is the correct copy, shall be the
responsibility of the advocate/litigant concerned.
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REV.APLC(MD)No.38 of 2022
K.MURALI SHANKAR, J.
SSL
PRE-DELIVERY ORDER MADE IN
REV.APLC(MD)No.38 of 2022
14.07.2022
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