State By vs S.Vaikundarajan
2022 Latest Caselaw 598 Mad

                                                                              Rev.Aplc.No.95 of 2016
                                                                      in C.R.P.(NPD).No.1065 of 2016

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                   DATED: 11.01.2022

                                                        CORAM:

                                  THE HONOURABLE MS.JUSTICE V.M.VELUMANI

                                            Review Application No.95 of 2016
                                                           in
                                             C.R.P.(NPD).No.1065 of 2016

                 State by
                 Superintendent of Police,
                 CBI, ACB, Chennai.                                       .. Review Petitioner

                                                         Vs.

                 1.S.Vaikundarajan
                 2.S.Jagadeesan
                 3.Janaki                                                 .. Respondents


                 Prayer: This Review Petition is filed under Order XLVII, Rule 1 of Civil Procedure
                 Code R/W Section 114 of Civil Procedure Code, against the order dated 28.04.2016
                 made in C.R.P.(NPD).No.1065 of 2016.


                                       For Review Petitioner   : Mr.K.Srinivasan
                                                                 Special PP for CBI

                                       For R1                  : Mr.S.Meenakshisundaram
                                                                 Senior Counsel
                                                                 for M/s.Kingsly Solomon J


                 1/12


https://www.mhc.tn.gov.in/judis
                                                                               Rev.Aplc.No.95 of 2016
                                                                       in C.R.P.(NPD).No.1065 of 2016

                                       For R2                  : Mr.S.Ashok Kumar
                                                                 Senior Counsel
                                                                 for Mr.Y.Prakash

                                                       ORDER

(The matter is heard through “Video Conferencing”)

This Review Petition is filed to reconsider the order dated 28.04.2016 made

in C.R.P.(NPD).No.1065 of 2016 by expunging paragraph Nos.11 & 21 of the

order dated 28.04.2016.

2.The review petitioner is 1st respondent in C.R.P.(NPD).No.1065 of 2016

filed by the respondents 1 & 2 herein. The 3 rd respondent is 2nd respondent in

C.R.P.(NPD).No.1065 of 2016.

Facts of the case:

3.A case was registered in RC MA1 2012 A 0055 against one A.Subbaiah,

I.A.S., Secretary, Department of IT, West Bengal, former Chairman of V.O.C. Port

Trust, Tuticorin and six others including the 3rd respondent herein, Mother of said

A.Subbaiah and one A.Jayaraman, brother of said A.Subbaiah. In the course of

https://www.mhc.tn.gov.in/judis Rev.Aplc.No.95 of 2016 in C.R.P.(NPD).No.1065 of 2016

investigation of CBI, the petitioner found SB account No.606601508801 of ICICI

Bank, Kancheepuram Branch in the name of A.Jayaraman and 3 rd respondent

herein. The said account was frozen on 03.01.2013 by order under Section 102 of

the Code of Criminal Procedure. While so, the respondents 1 & 2 obtained an

arbitration award against the 3rd respondent and filed E.P.No.50 of 2012 on the file

of the District Court No.II, Kancheepuram. The SB account frozen by the petitioner

was opened in E.P. and by the order dated 15.04.2014, the application filed by the

respondents 1 & 2 to send the amount was ordered.

3(a). On coming to know about the E.P. and orders passed therein, the

petitioner filed E.A.No.33 of 2015 in E.A.No.22 of 2014 in E.P.No.50 of 2012 in

A.R.C.No.2 of 2012 for impleading and to set aside the order sending the above

amount. The learned II District Judge, Kancheepuram allowed E.A.No.33 of 2015

impleading the petitioner as party.

3(b). The respondents 1 & 2 filed the C.R.P.(NPD).No.1065 of 2016

challenging the order impleading the petitioner. This Court by the order dated

28.04.2016 disposed of the C.R.P.(NPD).No.1065 of 2016 imposing certain

conditions.

https://www.mhc.tn.gov.in/judis Rev.Aplc.No.95 of 2016 in C.R.P.(NPD).No.1065 of 2016

4.The petitioner has come out with the present Review Application to review

the order dated 28.04.2016 made in C.R.P.(NPD).No.1065 of 2016 by expunging

paragraph Nos.11 & 21 of the order dated 28.04.2016 and to extend the Bank

guarantee ordered by this Court till disposal of the RC55(A)/2012 OF CBI, ACB,

Chennai.

5.The learned Special Public Prosecutor for CBI appearing for the petitioner

submitted that the investigation by CBI is in progress and not yet completed and

final report has to be filed in the case and findings in paragraph Nos.11 & 21 will

weaken the case of the CBI against the accused person. The criminal case was not

an issue in the C.R.P. Inspite of the same, this Court on 28.04.2016 passed order on

merits with regard to criminal case while investigation is still in progress. There is

an error apparent in the order of this Court and paragraph Nos.11 & 21 are liable to

be expunged.

6.Per contra, the learned Senior Counsel appearing for the 1 st respondent

submitted that this Court has made sufficient conditions to safeguard the interest of

CBI and there is no necessity to impose further conditions. Unless there is an error

https://www.mhc.tn.gov.in/judis Rev.Aplc.No.95 of 2016 in C.R.P.(NPD).No.1065 of 2016

on the face of the record of the order, it cannot be reviewed. The Hon'ble Apex

Court has held that even if it is a legal error, parties cannot file review petition to

review the same. In support of their contention, they relied on the following

judgments:

(i) 1995 (1) CTC 493, [The Tamil Nadu Housing Board Rep.... Vs.

A.Viswam and 10 others];

“ ... 11. The Supreme Court in the above case law, has listed out legal ratio to be followed in the review proceedings in the following words.

" 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 review petition has to be entertained only on the ground of error apparent on the face of the record and not on any other ground. An error on the face of record must be such an error which must strike one on mere looking at the record and would not require any long drawn process of reasoning on points where there may conceivably be two opinions. The limitation of powers of court under Order 47 Rule 1 C.P.C. is similar to

https://www.mhc.tn.gov.in/judis Rev.Aplc.No.95 of 2016 in C.R.P.(NPD).No.1065 of 2016

the jurisdiction available to the High Court while seeking review of the orders under Article 226."

(ii) 2009 (5) CTC 365, [Inderchand Jain (D) through L.Rs. Vs. Motilal (D)

through L.Rs.];

“ ... 10. It is beyond any doubt or dispute that the review court does not sit in appeal over its own order. A re-hearing of the matter is impermissible in law. It constitutes an 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. Review is not appeal in disguise.

In Lily Thomas v. Union of India [AIR 2000 SC 1650], this Court held :

'56. It follows, therefore, that the power of review can be exercised for correction of a mistake and not to substitute a view. Such powers can be exercised within the limits of the statute dealing with the exercise of power. The review cannot be treated an appeal in disguise.'

https://www.mhc.tn.gov.in/judis Rev.Aplc.No.95 of 2016 in C.R.P.(NPD).No.1065 of 2016

25. The High Court had rightly noticed the review jurisdiction of the court, which is as under: "The law on the subject - exercise of power of review, as propounded by the Apex Court and various other High Courts may be summarized as hereunder:

(i) Review proceedings are not by way of appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1 C.P.C.

(ii) Power of review may be exercised when some mistake or error apparent on the fact of record is found. But error on the face of record must be such an error which must strike one on mere looking at the record and would not require any long drawn process of reasoning on the points where there may be conceivable be two opinions.

(iii) Power of review may not be exercised on the ground that the decision was erroneous on merits.

(iv) Power of review can also be exercised for any sufficient reason which is wide enough to include a misconception of fact or law by a court or even an Advocate.

https://www.mhc.tn.gov.in/judis Rev.Aplc.No.95 of 2016 in C.R.P.(NPD).No.1065 of 2016

(v) An application for review may be necessitated by way of invoking the doctrine `actus curiae neminem gravabit'."

(iii) 2019 (1) CWC 540, [Asharfi Devi (D) thr. L.Rs. Vs. State of U.P. and

Ors.];

“ ... 23. We find no merit in any of his submissions for more than one reason. First, as mentioned above, this appeal does not arise out of the main order but arises out of review order only and, therefore, we cannot examine the legality and correctness of the main order in this appeal like an Appellate Court.”

The learned Senior Counsel appearing for 1st respondent referred to the

counter filed by the petitioner in Civil Revision Petition and submitted that the

petitioner invited the findings in paragraph Nos.11 & 21 by making allegations

against the respondents. Aggrieved by the order, they have to file an appeal only

before the Hon'ble Apex Court and they cannot file a review applicatio to reconsider

the order dated 28.04.2016 made in C.R.P.(NPD).No.1065 of 2016 as there is no

https://www.mhc.tn.gov.in/judis Rev.Aplc.No.95 of 2016 in C.R.P.(NPD).No.1065 of 2016

error in the order of the learned Judge and prayed for dismissal of the review

application.

7.Mr.S.Ashok Kumar, learned Senior Counsel appearing for the 2nd

respondent submitted that this Court only after considering the materials available,

passed an order and findings in paragraph Nos.11 & 21 are in order. This Court

considered the check period with regard to alleged disproportionate sale and the fact

that 3rd respondent purchased the property long before the check period and passed

the order. Only when there is an error apparent in the order, the said order can be

reviewed. In the present case, there is no error in the order and prayed for dismissal

of the review application.

8.Heard the learned Special Public Prosecutor for CBI appearing for the

petitioner as well as the learned Senior Counsel appearing for the 1st respondent and

the learned Senior Counsel appearing for the 2nd respondent and perused the entire

materials on record.

9.From the order dated 28.04.2016 made in C.R.P.(NPD).No.1065 of 2016,

it is seen the issue before the Court is whether impleading the petitioner in

https://www.mhc.tn.gov.in/judis Rev.Aplc.No.95 of 2016 in C.R.P.(NPD).No.1065 of 2016

E.P.No.50 of 2012 pending on the file of the District Court No.II, Kancheepuram as

party is correct or not. This Court considering the materials, held that there are two

sets of facts namely, one set leading to civil dispute and another set leading to

investigation and nothing being done by the petitioner with regard to

disproportionate wealth case. Having held so, an error is crept in order namely, the

Court has given a finding in paragraph Nos.11 & 21 in respect of criminal case

being registered and investigated, when the F.I.R. and criminal case are not put up

before the Court in C.R.P.

10.The contention of the learned Special Public Prosecutor appearing for the

petitioner that the investigation is in progress and final report is not filed and

criminal case is not an issue in C.R.P. and findings in paragraph Nos.11 & 21 have

to expunged has considerable force and it is acceptable. When an error is pointed

out by the party, it is for the Court to set aside the same.

11.For the above reason, paragraph No.11 and words “(which of course does

not appear to be correct)” and “(if need be)” in paragraph No.21 in the order dated

28.04.2016 made in C.R.P.(NPD).No.1065 of 2016 are expunged.

https://www.mhc.tn.gov.in/judis Rev.Aplc.No.95 of 2016 in C.R.P.(NPD).No.1065 of 2016

12.This Court to safeguard the interest of petitioner, in paragraph No.23,

directed the respondents 1 & 2 to furnish the Bank guarantee, but no time limit was

fixed. In view of the same, the respondents 1 & 2 are directed to furnish Bank

guarantee and keep it alive till the disposal of criminal case in RC55(A)/2012 of

CBI, ACB, Chennai.

13.With the above directions, this Review Petition is allowed. No costs.

                                                                                         11.01.2022


                 krk

                 Index : Yes / No
                 Internet     : Yes / No

NOTE: Registry is directed to issue fresh order copy.

https://www.mhc.tn.gov.in/judis Rev.Aplc.No.95 of 2016 in C.R.P.(NPD).No.1065 of 2016

V.M.VELUMANI, J., krk

Review Application No.95 of 2016 in C.R.P.(NPD).No.1065 of 2016

11.01.2022

https://www.mhc.tn.gov.in/judis