Chinnaponnu vs Lakshmi
2023 Latest Caselaw 14439 Mad

Madras High Court

Chinnaponnu vs Lakshmi on 21 November, 2023

                                                                                Rev.Appl.No.51 of 2018

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                     DATED : 21.11.2023

                                                          CORAM

                                   THE HONOURABLE MR. JUSTICE S.SOUNTHAR

                                                 Rev.Appl.No.51 of 2018
                                                          and
                                                 CMP.No.5090 of 2018

                 1.Chinnaponnu
                 2.Gnanvadivel
                 3.Rajendran
                 4.Maniappan
                 5.Krishnan
                 6.Mani                                                               ... Applicants
                                                              Vs.


                 1.Lakshmi
                 2.Kannan                                                             ...
                 Respondents


                 Prayer: Review Appeal filed under Order 47 Rule 1 and 2 r/w 114 of the

                 Code of Civil Procedure, against the order dated 11.12.2017 passed in

                 S.A.No.652 of 2017 passed by this Court.



                                    For Applicants        :     Mr.P.Rathanavel
                                                               for Mr.C.Mariappan



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                 1/4
                                                                               Rev.Appl.No.51 of 2018




                                                        ORDER

This application has been filed seeking to review the judgment

and decree passed by this Court in S.A.No.652 of 2017 dated 11.12.2017.

2. The learned counsel for the applicants submitted that the

respondents herein claimed easement of necessity and existence of alternative

pathway available for the respondents were not at all considered by this Court

at the time of disposal of the Second Appeal.

3. The learned counsel for the applicants further submitted that

the review petitioners were not offered with the opportunity to cross examine

the Advocate Commissioner, who had submitted the report and plan before the

Courts below.

4. It is settled law that the Review Application can be entertained

by this Court only on the limited ground unless the applicant is able to show an

error apparent on the face of the record, this Court can not exercise its review

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jurisdiction. In the case on hand, in para 9 of the judgment, this Court

considered the availability of existence of alternative pathway pointed out by

the defendants and rejected the same on the ground that the said pathway is on

different heights or levels at different places and hence not fit for usage as

pathway. In such circumstances, the submission made by the learned counsel

for the review applicants as if the availability of alternative pathway has not

been considered by this Court is not correct.

5. As far as the opportunity for cross examination of Advocate

Commissioner is concerned, the review applicants could have filed an

application for examination of Advocate Commissioner before the trial Court.

When they failed to do so before trial Court, it is not open for them to argue in

the Second Appeal that too in a review application that they were not afforded

with an opportunity to cross examine the Advocate Commissioner. Therefore,

the applicants have not made out any ground to review the judgment and

decree passed by this Court on 11.12.2017.

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S.SOUNTHAR, J.

dna

6. Accordingly, this Review Appeal is dismissed. No costs.

Consequently, connected Miscellaneous Petition is closed.

                                                                                       21.11.2023

                 Index        : Yes/No
                 Internet     : Yes/No
                 Neutral Citation Case       : Yes/No
                 dna





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