Madras High Court
G.Krishnamoorthy vs S.Dhanasekar on 9 March, 2023
Rev. Appl. No.221 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 09.03.2023
CORAM :
THE HONOURABLE MR. JUSTICE S.S. SUNDAR
Rev.Appl.No.221 of 2022
against
S.A.No.93 of 2017
1.G.Krishnamoorthy
2.Anushiya
3.Hemalatha
4.Kishore Kumar ... Review Petitioners
Vs.
1.S.Dhanasekar
2.S.Chandrasekar ... Respondents
Prayer : Review Application filed under Order 47 Rule 1 read with Section
114 of Code of Civil Procedure to review the findings recorded in Paragraph-
10 of the judgment and decree dated 09.04.2021, made in S.A.No.93 of
2017, passed by this Court.
For Petitioners : Mr.E.Prabu
ORDER
The above Review Application is filed seeking to review the
judgment and decree, dated 09.04.2021, in S.A.No.93 of 2017.
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Rev. Appl. No.221 of 2022
2.The review petitioners are the respondents in S.A.No.93 of 2017
and plaintiffs 2 to 5 in the suit in O.S.No.3986 of 2011. The review
petitioners filed the suit in O.S.No.3986 of 2011 to declare the passage
described in Schedule-B in the sale deed dated 30.07.1975 as their exclusive
passage and for mandatory injunction directing defendants 1 to 3 to remove
the building erected by encroaching the portion of the said passage. The trial
Court dismissed the suit. However, the lower Appellate Court set aside the
judgment and decree of the trial Court and granted declaratory relief in
favour of the review petitioners over the common passage. Aggrieved by the
judgment and decree of the lower Appellate Court, the defendants in the suit
preferred the Second Appeal in S.A.No.93 of 2017. The said Second Appeal
was dismissed by judgment and decree dated 09.04.2021. However, while
dismissing the Second Appeal, this Court has made certain observations in
favour of the defendants for using the common passage, even though the
defendants' claim of title was negatived.
3.Stating that the defendants have not pleaded that they are entitled
to easement by prescription, learned counsel appearing for the review
petitioners stated that the observations and findings of this Court recognizing
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Rev. Appl. No.221 of 2022
the defendants' right of easement is unwarranted and that therefore, the
judgment of this Court in the Second Appeal should be reviewed. Learned
counsel then submitted that, by virtue of the findings of this Court in the
Second Appeal holding that the defendants have a right of easement, the
defendants have filed a suit to establish their right of easement and that such
a finding which is not supported by pleadings cannot be allowed as the
plaintiffs will be put to irreparable hardship if they are forced to face another
litigation at the instance of the defendants merely on the basis of the findings
as to the easementary right of defendants.
4.First of all, there are two aspects that are involved, as submitted
by the learned counsel appearing for the review petitioners. The first issue is
regarding maintainability of the Review Application on the ground raised.
This Court and Hon'ble Supreme Court repeatedly held that review is not an
alternative for appeal. Order 47 Rule 1 of CPC specifically refers to the
grounds on which such review application can be filed. A review is
maintainable only if there is an error apparent on the face of the record. Even
if the Court is required to analyse and examine the merits of the findings, a
review cannot be entertained. In short, if the Court requires a process of
reasoning to find out whether there is an error on the face of the record, a
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Rev. Appl. No.221 of 2022
review application will not fall within Order 47 Rule 1 of CPC.
5.Secondly, learned counsel appearing for the review petitioners
submitted that the finding in favour of the defendants in the suit filed by the
appellants is that defendants are entitled to right of easement even though
their claim of title is disbelieved. The learned counsel contended that the
defendants have now filed a suit for declaration of their easement right only
by virtue of the findings, though it is not even pleaded in the written
statement filed by the defendants in the previous suit that they are entitled to
a right of easement.
6.It is seen that a plea of easement involves admission of title of the
other side against whom the plea is raised. When a person claims exclusive
title, it is true that he cannot be granted relief on the basis of a right of
easement. In the present case, this Court has not granted any relief in favour
of the defendants on the basis of the findings recorded in the Second Appeal.
In such circumstances, when no part of the decree is in favour of the
defendants, the review need not be entertained. This Court might have
observed the entitlement of defendants to exercise a right of easement. So
long as a decree is not granted in favour of the defendants in recognition of
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Rev. Appl. No.221 of 2022
their right of easement, it is open to the review petitioners to canvass every
ground that may be possible or available to them to defend the suit, if the
defendants seek the relief on the basis of the findings of this Court.
7.This Court, therefore, does not find any reason or ground to
review the judgment and decree passed by this Court, dated 09.04.2021, in
the Second Appeal in S.A.No.93 of 2017. Hence, this Review Application is
dismissed. No costs.
09.03.2023
mkn
Internet : Yes
Index : Yes / No
S.S. SUNDAR, J.
https://www.mhc.tn.gov.in/judis
Rev. Appl. No.221 of 2022
mkn
Rev.Appl.No.221 of 2022
09.03.2023
https://www.mhc.tn.gov.in/judis
