Madras High Court
Pattammal vs Natesan on 10 August, 2022
Rev.Appl.No. 147 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 10.08.2022
CORAM
THE HONOURABLE MR. JUSTICE C.V.KARTHIKEYAN
Rev.Appl.No. 147 of 2019
and
C.M.P.No. 15482 of 2019
1. Pattammal
2. D.Boopathy
3. D.Kamaraj
4. D.Kalyanasundaram
5. Sulochana ... Review Petitioners/Respondents 5 to 9
(L.Rs of 4th defendant)
Vs
1. Natesan
2. Govindarajulu ... Respondents 1 & 2/Appellants
3. Pappammal
4. Chennaiah Naidu (died)
5. Abdul Azeez Saheb (died)
https://www.mhc.tn.gov.in/judis 1
Rev.Appl.No. 147 of 2019
6. P.Duraisamy (died)
... Respondents 3 to 6 / Respondents 1to 4
Prayer: Review Application filed under Order 47 Rule 14 r/w Section 114
CPC seeking to review the judgment dated 04.02.2019 in S.A.No. 1814 of
1997 on the file of this Court.
****
For Petitioners : Mr. D.Shivakumaran
For RR 1 & 2 : Mr.J.Hariharan
for Mr. V.Nicholas
ORDER
Heard Mr. D.Shivakumaran, learned counsel for the review applicants.
2. The Review Application has been filed by the 5th to 9th respondents,
who are the legal representatives of the 4th respondent, seeking re-
visitation of the Judgment of this Court dated 04.02.2019 in S.A.No. 1814
of 1997.
3. It must be mentioned that the appellants in S.A.No. 1814 of 1997 were
the plaintiffs in O.S.No. 678 of 1981. They had instituted the suit in the
District Munsif Court, Krishnagiri, for partition and separate possession.
Rev.Appl.No. 147 of 2019
4. By Judgment dated 26.09.1991, the District Munsif, Krishnagiri, had
dismissed the suit.
5. Challenging that Judgment, the plaintiffs had filed A.S.No. 49 of
1994 before the learned Additional Special Judge, Krishnagiri. By
Judgment dated 27.07.1995, the learned Additional Special Judge,
Krishnagiri, had dismissed the Appeal Suit. Questioning such dismissal,
the plaintiffs had then filed S.A.No. 1814 of 1997.
6. Two substantial questions of law had been framed at the time of
admission of the Second Appeal on 09.01.1998. Thy were as follows:-
“1. Whether the school entries show the
correct date of birth of the
appellants/plaintiffs?
2. Whether the First Appellate court is
correct in rejecting the documents while
deciding the question of limitation?”
Rev.Appl.No. 147 of 2019
7. The arguments in the Second Appeal were advanced on 28.01.2019
and Judgment was pronounced on 04.02.2019. The Second Appeal was
been allowed with costs.
8. Claiming that there are reasons to review the said Judgment, the present
Review Application had been filed as aforesaid by the 5th to 9th respondents
in the Second Appeal, who are the legal representatives of the 4 th defendant
in the suit.
9. Two points have been raised by Mr.D.Shivakumaran, learned counsel
for the review applicants. The first one is the interpretation given by this
Court to Exs. A-4 and A-5 and the reasons given for their admissibility and
acceptance of the contents thereof. The second point revolves around the
observations made by this Court while allowing the Second Appeal
holding that since no cross objections had been filed by the respondents
herein, answer to the two substantial questions of law would suffice. The
Second appeal was allowed on the answers given.
Rev.Appl.No. 147 of 2019
10. Let me first address the second issue raised by Mr.D.Shivakumaran
in the first instance. The learned counsel had relied on a Judgment of the
Hon'ble Supreme Court reported in 2022 1 CTC 235 :: 2021 AIR (SC)
3673 [ Shri Saurav Jain and another Vs. M/s. A.B. P. Design and
Another]. The Hon'ble Supreme Court in that particular case had held that
it was not necessary that a challenge to an adverse finding of a Lower
Court need to be made in the form of a memorandum of cross objection. It
was stated that the principles stipulated under Order 21 Rule 22 of the
Code of Civil Procedure Code can be applied to petitions under Article
136 of the Constitution of the India. While holding so, the Hon'ble
Supreme Court had actually exercised of its plenary jurisdiction under
Article 136 of the Constitution of the India read with the powers vested to
do complete justice under Article 142 of the Constitution of India and had
stated that new grounds raised for the first time if it involves a question of
law and which does not require additional evidence concerning jurisdiction
of the Court, and which go to the root of the matter can be taken up for
consideration.
Rev.Appl.No. 147 of 2019
11. It is thus seen that in that particular case even though reliance was
placed on the facts of that case, still the Hon'ble Supreme Court had
invoked its power under Article 142 of the Constitution which power is
specifically endowed only on the Hon'ble Supreme Court and not on the
High Court.
12. The position of law is very clear. If, a party is aggrieved by a
particular finding then Order 41 Rule 22 of the Code of Civil Procedure
gives him the necessary leverage to raise grounds of cross objections even
though he might be otherwise satisfied with the Judgment of the trial/First
Appellate Court.
13. Order 41 Rule 22 of the Code of Civil Procedure is as follows:-
“22. Upon hearing respondent may object to decree
as if he had preferred a separate appeal.
(1) Any respondent, though he may not have
appealed from any part of the decree, may not only
support the decree but may also state that the finding
Rev.Appl.No. 147 of 2019
against him in the Court below in respect of any issue
ought to have been in his favour; and may also take
any cross-objection to the decree which he could have
taken by way of appeal provided he has filed such
objection in the Appellant Court within one month
from the date of service on him or his pleader of
notice of the day fixed for hearing the appeal, or
within such further time as the Appellate Court may
see fit to allow.
[Explanation-
A respondent aggrieved by a finding of the Court in
the judgment on which the decree appealed against is
based may, under this rule, file cross-objection in
respect of the decree in so far as it is based on that
finding, notwithstanding that by reason of the
decision of the Court on any other finding which is
sufficient for the decision of the suit, the decree, is,
wholly or in part, in favour of that respondent.]
(2) Form of objection and provisions applicable
thereto- Such cross-objection shall be in the form of a
memorandum, and the provisions of rule 1, so far as
they relate to the form and contents of the
memorandum of appeal, shall apply thereto.
Rev.Appl.No. 147 of 2019
(3) Unless the respondent files with the objection a
written acknowledgement from the party who may be
affected by such objection or his pleader of having
received a copy thereof, the Appellate Court shall
cause a copy to be served, as soon as may be after the
filing of the objection, on such party or his pleader at
the expense of the respondent.
(4) Where, in any case in which any respondent has
under this rule filed a memorandum of objection, the
original appeal is withdrawn or is dismissed for
default, the objection so filed may nevertheless be
heard and determined after such notice to the other
parties as the Court thinks fit.
(5) The provisions-relating to appeal by indigent
persons shall, so far as they can be made applicable
apply to an objection under this rule. ”
14. The provision provides a statutory right to file a cross objection if
there is a grievance over a particular finding on a Judgment, which was
substantially otherwise in his favour.
15. In the particular case cited by Mr.D.Shivakumaran the Hon'ble
Supreme Court had also taken recourse to Article 142 of the Constitution.
Rev.Appl.No. 147 of 2019
This Court cannot do so. It will have to confine itself only to the
provisions under Order 41 Rule 22 of the Code of Civil Procedure. If a
cross objection is raised and filed it has to be examined even if the appeal
is withdrawn. If cross objection is not filed, then this Court cannot
undertake an exercise to search grounds to assist the respondents in the
Second Appeal. To that extent, I must state that this Court is limited by the
four corners of Order 41 Rule 22 of the Code of Civil Procedure and
certainly and should not, as a rule of law, invoke or even contemplate
invoking the powers under Article 142 of the Constitution which
jurisdiction vests solely and absolutely and only with the Hon'ble Supreme
Court and not with any other Court of this country.
16. Now let me revert back to the first point raised by
Mr.D.Shivakumaran. The learned counsel had relied on a Judgment of the
Hon'ble Supreme Court in (2005) 9 SCC 359 [Gangamma and Others Vs.
Shivalingaiah]. The substantial question of law framed by the High Court
in that Second Appeal was with respect to a registered sale deed which was
30 years old and the High Court had stated that there was a legal
presumption regarding the authenticity of the recitals and examined
whether a plea contrary can be taken up.
Rev.Appl.No. 147 of 2019
17. In the instant case, Section 90 of the Indian Evidence Act had not at
all been referred to in the Judgment under review. The only stray area
assistance of the provision was drawn to was that Exs. A-4 and A-5, on the
basis of which the Judgment under review had been decided, were more
than 30 years old. But it must be mentioned that the documents were not
taken for granted as being correct or as being authentic on the basis that
they were 30 years old.
18. The contents were considered to be being correct on the basis of the
evidence of PW-4 Ramasamy, Head Master of Jagadevi Municipal
Elementary School, who stated during his evidence that he signed Ex.A-1
which was a transfer certificate which reflectrf that the first plaintiff
Natesan was born on 20.12.1960. This evidence on oath was relied on by
this Court. The second aspect is the evidence of PW-7, Natarajan, who
was the Headmaster from 1961 till 15.07.1966. He deposed on oath that
he made the entry in Ex.A-4 which was the admission registry for Jagadevi
Municipal Elementary School for the period June 1961 to 1975. In the
said register in page No. 23 in serial no. 454, the said plaintiff Natesan, son
of Perumal was shown to have been admitted as a student on 19.06.1966
Rev.Appl.No. 147 of 2019
and his date of birth was given as 20.12.1960. The further evidence of
PW-8 Seenan, who was also the Headmaster in the same school, that he
admitted the second plaintiff Govindarajulu, son of Perumal Naidu under
Ex.A-5 where the date of birth was given as 25.12.1963.
19. The evidence thus recorded were considered by this Court while
delivering the Judgment. The observation of the First Appellate Court was
that the evidence of the said witnesses were based on presumptions. That
observation was negatived by this Court by stating that witnesses had
spoken about the entires in the registers and they had spoken directly about
the said entries since they had made the entries and they had signed the
registers. Thereafter, as a ancillary fact, it was also stated that the
documents were 30 years old. No presumption was drawn that they were
authentic because they were 30 years old. That was an additional factor
stated. The primary conclusion was on the basis of the evidence of PW-4,
PW-7 and PW-8. That evidence should have been tested during the
course of trial. Even if they had been challenged during the course of trial,
the First Appellate Court, also as a Court to examine the evidence recorded
should have examined the evidence in chief of those witnesses and the
Rev.Appl.No. 147 of 2019
corresponding cross examination and they should have been given a proper
reason for rejecting that particular evidence. The First Appellate Court had
however stated that it was rejecting the evidence since it felt that such
evidence was based on presumptions. That observation of the First
Appellate Court was interfered with by this Court in the Judgment in the
Second Appeal.
20. The learned counsel for the review petitioner also relied on the
Judgment of a learned Single Judge of this Court reported in 1995 1 MLJ
381 [ N.Krishnaswamy Reddiar and others Vs. Manickavasagam]. The
learned Single Judge held that a review would lie not only an error on fact
but also on an error of law.
21. Order 47 Rule 1 CPC deal with review applications. The said
provision is as follows:-
“1. Application for review of Judgment
(1) Any person considering himself
aggrieved-
Rev.Appl.No. 147 of 2019
(a) by a decree or order from which an
appeal is allowed, but from which no appeal has
been preferred, (b) by a decree or order from
which no appeal is allowed, or
(c) by a decision on a reference from a Court
of Small Causes,
and who, from the discovery of new and
important matter or evidence which, after the
exercise of due diligence was not within his
knowledge or could not be produced by him at
the time when the decree was passed or order
made, or on account of some mistake or error
apparent on the face of the record of for any
other sufficient reason, desires to obtain a review
of the decree passed or order made against him,
may apply for a review of judgment to the Court
which passed the decree or made the order.
(2) A party who is not appealing from a
decree or order may apply for a review of
judgment notwithstanding the pendency of an
appeal by some other party except where the
ground of such appeal is common to the
applicant and the appellant, or when, being
respondent, he can present to the Appellate
Rev.Appl.No. 147 of 2019
Court the case on which he applies for the
review.
Explanation-
The fact that the decision on a question of
law on which the judgment of the Court is based
has been reversed or modified by the subsequent
decision of a superior Court in any other case,
shall not be a ground for the review of such
judgment.”
22. In the said provision, the explanation states that even if the question
of law on which the Judgment is based had been reversed or modified by a
subsequent decision of a superior Court review of such Judgment shall not
lie.
23. The point urged by Mr.D.Shivakumaran that this Court had
presumed that Exs. A-4 and A-5 must be taken as genuine merely because
they were 30 years old is not well taken. The evidence adduced on those
documents had been examined and it had therefore been stated that the said
documents can be taken as reflecting correct entries. Unless that evidence
had been shattered during cross examination, it would not be appropriate
for this Court to re-examine that particular aspect. The First Appellate
Rev.Appl.No. 147 of 2019
Court had brushed aside that particular evidence saying that the witnesses
must have provided the dates of birth of the plaintiffs by themselves. The
said statement that the dates were provided by the witnesses themselves
was a statement on presumption by the First Appellate Court. That
finding /statement had been interfered with by this Court. No amount of
oral evidence can be given as against a written document. The written
document speaks for itself.
24. Exs.A-4 and A-5 had given the dates of birth of the appellants in the
Second Appeal / plaintiffs in the suit.
25. The learned counsel then relied on a Judgment of a learned Single
Judge of this Court repoted in (2019) 1 MLJ 339 [ S.Thiyagaraja
Gurukkal and Others Vs. Thirukazhukundram Aadhi Saiva
Sivachariargal Sangam]. In that particular case, the learned Single Judge
had rejected a document which had been accepted by the trial Court on the
ground that it was 30 years old. The facts reveal that the said particular
document, namely, a settlement deed, Ex.A-1 had not actually been placed
by the plaintiff before the trial Court. In the Second Appeal, the learned
Rev.Appl.No. 147 of 2019
Single Judge observed that the original settlement deed had not been
placed and only a copy of the document had been marked as Ex.A-1 and
therefore, stated that the presumption under Section 90 should not have
been drawn.
26. In the instant case, the original registers had been produced. The
Headmasters of the School, who actually wrote down the registers and
signed them had been examined as witnesses.
27. The learned counsel then relied on a Judgment of a learned Single
Judge reported in 2017 (6) CTC 380 [ Chinnamuniamma and Others Vs.
Pattammal and others] with respect to the observations that under Section
90 of the Indian Evidence Act, 1872 what could be presumed is the
custody alone and not the contents of the document.
28. In the instant case, the witnesses, who actually wrote down the
documents and signed them had been examined. They affirmed their
signatures. They affirmed their hand writings. They affirmed the dates
given in the registers. If at all such evidence has to be shattered then it is
Rev.Appl.No. 147 of 2019
for the counsel for the defendants during trial to have put proper questions
during cross examination. Having failed to do so, a better case at the stage
of Second Appeal cannot be permitted to be built up on the basis of the
extraneous presumption.
29. The observation of the First Appellate Court that the dates would
have been written by the witnesses themselves is an observation based on
presumption and that presumption alone had been interfered with by this
Court in the Second Appeal. Reliance had been placed on Exs. A-4 and A-
5 only because witnesses were produced to speak about directly Exs. A-4
and A-5.
30. It must also be mentioned that the substantial questions of law had
been framed at the time of admission of the Second Appeal in the year
1998 and when the Second Appeal was argued in January 1990, no
endeavour was made to insist that the substantial questions of law so
framed, were not proper, or were not correct, or that further substantial
questions of law arise. If such an argument had been advanced then an
obligation would have been placed on the Court to frame further
Rev.Appl.No. 147 of 2019
substantial questions of law. The Code provides for that procedure but that
line of argument was not advanced.
31. The learned counsel for the respondent relied on a Judgment of a
learned Single Judge of this Court reported in 2019 (2) CTC 142 (Mad)
[ Balambal Vs. D.Prakash], wherein the learned Single Judge had stated
that the Court cannot sit in Appeal over its own Judgment, in the guise of
examining a review application. I would agree with that observation.
32. I hold that the Review Application should suffer an order of dismissal.
33. Accordingly, the Review Application is dismissed. Consequently,
connected Civil Miscellaneous Petition is also dismissed. No costs.
10.08.2022
Index :Yes/No
Internet:Yes/No
vsg
C.V.KARTHIKEYAN, J.
vsg
Rev.Appl.No. 147 of 2019
Rev.Appl.No. 147 of 2019
and
C.M.P.No. 15482 of 2019
10.08.2022
https://www.mhc.tn.gov.in/judis 19
