Madras High Court
S.J. Lakshmi @ S. Jayalakshmi vs P.S.S. Somasundaram Chettiar (Died) on 3 September, 2024
Author: M. Sundar
Bench: M. Sundar
2024:MHC:3382
Review Application No.104 of 2003
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 03.09.2024
CORAM :
THE HON'BLE MR. JUSTICE M. SUNDAR
and
THE HON'BLE MR. JUSTICE R. SAKTHIVEL
Review Application No.104 of 2003
S. Sathappan (Died)
1. S.J. Lakshmi @ S. Jayalakshmi
2. Minor S.S. Seetha
3. Minor S. Jagan Somasundaram Applicants
Minors represented by their mother, second
applicant.
(Applicants 1 to 3 brought on record as legal
representatives of the deceased sole appellant vide
order dated 23.10.2002 in C.M.P. No.15957 of 2000)
Applicants 2 and 3 declared as major and their
mother (1st applicant) is discharged from
guardianship and they are permitted to contest the
review application vide order of Court dated
01.08.2024 made in C.M.P. Nos.168 and 169 of 2014
and 3 of 2011 in Rev. A. No.104 of 2003 in O.S.A.
No.261 of 1995)
vs.
1 P.S.S. Somasundaram Chettiar (Died)
2. S. Nagamanickam Chettiar (Died)
3. S. Kubendran Chettiar
4. S.RM. Sathappa Chettiar
5. Chandragandhi Govindarajulu
representing G.R.G. Charities Trust and
Krishnammal Educational College Trust
Peelamedu
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Coimbatore District
Page 1 of 53
Review Application No.104 of 2003
6 Nedungadi Bank Ltd., Head Office
Calicut
7 Canara Banking Corporation Ltd.
presently known as Corporation Bank
Oppanakara Street
Coimbatore District
8 K.G. Kanagaraj
9 K.G. Sathiamoorthi
10 M. Shanmugam
11 Bala Jayaraman
12 Sathianarayanan
13 Dandapani
14 Sundararajan
(RR 11 to 14 recorded as legal representatives of
the deceased R2 as per order dated 05.04.1999
in C.M.P. No.4732 of 1999)
15 Rangasami Rajkumar (Minor) representated by
father and guardian G. Devarajan
16 G. Rangasami
17 A.K. Gopal Chettiar
18 S. Krishnakumar
19 S. Meenakshi Achi
20 G. Krishnamoorthi
21 Ranjini
22 Vijai
23 Balaji
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Review Application No.104 of 2003
24 Sundar
25 R.P. Ganesh
Proprietor, Theatre Paradise
Pollachi
(R25 impleaded as per order dated
22.02.1999 in C.M.P.No.1621 of 1999)
26 A.R. Seetha
27 A. Sita
28 M. Meena Respondents
(R1 died) RR 26 to 28 are brought on record
and petitioners 2 and 3 (already on record)
are recorded as legal heirs of deceased R1 –
P.S.S. Somasundaram Chettiar) vide order
dated 01.08.2024 made in C.M.P. Nos.168
and 169 of 2014 and 3 of 2011 in
Rev.A.No.104 of 2003 in O.S.A. No.261 of
1995.
Review Application filed under Order XLVII Rule 1 of the Code
of Civil Procedure seeking review of the judgment and decree dated
13.11.2002 passed in O.S.A. No.261 of 1995 insofar as the findings
in respect of the properties at No.116, Arun Chambers, Tardeo,
Bombay – 34 and at No.5, Bishop Garden, Chennai – 600 028 in the
judgment in C.S. No.188 of 1972 are concerned.
For applicant Mr. T.V. Ramanujun
Senior Counsel
for Mrs. R. Ramya
For RR 26-28 Mr.R.Parthasarathy, Sr. Counsel
for Ms.S. Rekha
Ms. R. Supraja & Ms.Tanushree Arvind
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Review Application No.104 of 2003
ORDER
(made by M. SUNDAR, J.)
Ten months, one year and half a century ago, to be precise,
15.11.1972 and this is the date of a plaint which was presented on
the Original Side of this Court, this plaint, on institution of suit,
became C.S. No.188 of 1972. This suit was originally filed by mother
of one S. Sathappan who was a minor at that time and interestingly,
first defendant in the suit one Somasundaram Chettiar is none other
than Sathappan's father. One of the classic cases of exception to the
age-old adage 'Blood is thicker than water'.
2. Considering the legal perimeter within which the
captioned review application should perambulate, it is really not
necessary to dilate on facts qua lis. It will suffice to state that
aforereferred 'C.S. No.188 of 1972' shall hereinafter be referred to
as 'partition suit' as Sathappan sought partition of properties
adumbrated in as many as ten schedules in the plaint. To be noted,
in some of the schedules, multiple items of properties have been set
out.
3. Sathappan who was a minor in 1972 was represented by
his mother and next friend S. Meenakshi Achi, subsequently,
(obviously) he attained majority, he was declared a major, his
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Review Application No.104 of 2003
mother and next friend was transposed as one of the defendants and
Nature overtook both Sathappan and his father. To put it differently,
both of them died pending suit/appeal, they are no more and their
legal heirs are on board and for self same reason set out in the
earlier part of this narrative, we are not dilating more on these facts.
4. In 1976, a bank, viz., Corporation Bank filed a money
suit in 'C.S. No.366 of 1976' (hereinafter referred to as 'bank suit' for
the sake of convenience) claiming certain sums of money. In this
bank suit, a mill which went by the name 'The Kaleeswarar Mills Ltd.,'
(for brevity 'Kaleeswarar Mills'), Sathappan and his father P.S.
Somasundaram Chettiar were arrayed as D1, D3 and D2
respectively. National Textiles Corporation (Tamil Nadu and
Puducherry) {'NTC' for brevity} was arrayed as D4.
5. In September of 1983, Somasundaram Chettiar
(Sathappan's father) filed a suit being C.S. No.442 of 1983 with a
prayer to declare that he has legal right over properties which are
absolute / independent and for a further declaration that Sathappan
does not have any legal right either by birth or succession over his
absolute properties. This suit (C.S. No.442 of 1983) shall hereinafter
be referred to as 'declaration suit' for the sake of convenience.
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6. Considering the factual overlap, all the three
aforereferred suits, viz., partition suit, bank suit and declaration suit
were taken up for joint trial and after full contest, a Hon'ble Single
Judge on the Original Side of this Court, in and by a common
judgment dated 07.10.1994, passed preliminary decrees in the
partition suit, bank suit, and dismissed the declaration suit.
7. In this regard, before we proceed further, we deem it
appropriate to write that in the plaint in the declaration suit (more
particularly paragraph 13 thereat), there is a mention about two
immovable properties and they are (i) No.5 Greenways Road, Bishop
Garden, Chennai 600 028 which is a house property with land area of
about 9 grounds and built up superstructure of about 8,000 sq. ft.
(hereinafter referred to as 'Bishop Garden house property' for the
sake of convenience) and (ii) a fully furnished air conditioned flat in
Bombay (now Mumbai) in a Office Complex which went by the name
'Arun Chambers' (hereinafter referred to as 'Bombay furnished flat
property' for the sake of convenience) but to be noted, there is no
schedule to the said plaint.
8. It is equally important to write that both the Bishop
Garden house and Bombay furnished flat properties do not find place
in the ten schedules in the partition suit. It is nobody's case that
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these two properties viz., Bishop Garden house and Bombay
furnished flat properties form part of the bank suit. In the bank suit,
the preliminary decree is to the effect that D1 and D4 thereat, viz.,
Kaleeswarar Mills and NTC, are liable to pay certain sums of money
to the bank and that the same can be recovered by the bank by
adopting 'procedure known to law'. Most importantly, the bank suit
was dismissed as against Sathappan as well as his father, viz., D3
and D2 respectively. As the money was directed to be recovered by
what is described as 'procedure known to law', it is in the nature of a
mortgage suit qua The Kaleeswarar Mills and NTC and therefore, a
preliminary decree appears to have been made but that is really
outside the perimeter within which instant legal drill perambulates.
9. As already alluded to supra, as regards declaration suit,
though there is a mention about two immovable properties in the
plaint, viz., Bishop Garden house and Bombay furnished flat
properties in paragraph 3 of the plaint, there is no schedule and this
suit was dismissed lock, stock and barrel. It is also necessary to write
(for better appreciation of this order) that in the common judgment,
the partition suit in C.S. No.188 of 1972 was the lead suit as the
evidence let in and the documents marked as exhibits in the partition
suit were taken as deposition and documents respectively as regards
the common judgment.
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10. As against the aforementioned common judgment, three
intra Court appeals, i.e., '3 Original Side Appeals' ('OSAs' for the sake
of brevity), viz., OSA No.261 of 1995, 237 of 1996 and 284 of 1996
were filed. While OSA No.261 of 1995 was filed by Sathappan, O.S.A.
Nos.237 and 284 of 1996 were filed by Somasundaram Chettiar. The
details of these three appeals as culled out from the earlier Bench
order read as follows:
'The plaintiff in C.S. No.188/1972 filed O.S.A.
No.261/1995 having aggrieved by the disallowed portion with
reference to his claim in the judgment and decree passed in the said
suit.
2. O.S.A. No.284/1996 is by the 1st defendant in the said
suit, having aggrieved by the judgment and decree therein rejecting
his claim that the plaint schedule properties are his absolute
properties and nobody can claim any title, interest or whatsoever in
the same during his lifetime.
3. The 1st defendant filed another appeal in O.S.A.
No.237/1996 against the dismissal of his suit in C.S. No.442/1983
filed by him for a declaration that he is the owner of all the
properties. For the convenience, the parties are referred to herein as
their description in C.S. No.188/1972.'
11. All three OSAs were taken up, heard together and were
disposed of by a common judgment dated 13.11.2002 made by
Predecessor Hon'ble Division Bench. This judgment has been
reported in a law journal which goes by the name 'Law Weekly'. The
citation is 2003-1-L.W. 58. We find that the reported citation refers to
the date of judgment as '03.11.2002' whereas the (correct) date as per
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Court records is '13.11.2002'. It appears to be a printer's devil but
we deem it appropriate to leave it at that.
12. Before we proceed further, we need to make it clear that
the crux and gravamen or in other words, the kernel of the captioned
review application is paragraph 269 of the common judgment dated
07.10.1994 made in the three suits and the same reads as follows:
'269. It is thus seen that almost substantial part of the suit
properties were acquired by Diwan Bahadur Somasundaram Chettiar and
after his death by his adopted son P.S.Sathappan Chettiar and by his wife
late Seethai Achi and that during their lifetime the family of the first
defendant were identified in an affluent situation with several industries,
textile mills, companies and landed and house properties and also were
found with fame and glory and was in a peak period. It is noticed that the
plaintiff as P.W.1 during his oral evidence has admitted that certain items
of the suit properties were the self-acquisitions of the first defendant but
however, he added that though the said items were acquired by the first
defendant by taking the document in his name, consideration for acquiring
the said properties, about which, I have referred to in the previous
paragraphs, were taken only from the property and income of the joint
family property and that therefore, all the properties were unequivocally
and unambiguously treated by the plaintiffs and the defendants 1 to 4 as
the joint family properties. As I have already adverted to, there was no
evidence or materials available before this Court to show that the first
defendant had received any remuneration or scale or pay, whatever the
consideration may be, for his working as the Managing Director or the
local agent of the several textile mills and industries belonging to his
family. Equally so, it was not the case of the first defendant either through
evidence or pleadings that he has purchased certain properties out of his
own independent income but however separately, from doing so, without
any income from the joint family property. What must be the
consideration passed in acquiring every property must necessarily have
been begotten only from the joint family properties, which are ancestral in
nature and not by any self-acquisition of the first defendant. That apart,
there is evidence made available by P.W.1 and the contra plea made on
behalf of the first defendant with regard to two items of properties, one a
house property bearing door number 5 situated in Greenways Road,
Madras and another flat acquired in Bombay municipal town. Though
these two properties were not added as items in the plaint schedule,
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Review Application No.104 of 2003
parties herein. It was the contention made on behalf of the first defendant
that he paid the entire consideration for acquiring the house property
situated in Greenways Road, Madras, but the document was taken in the
name of the plaintiff. The same stand was taken with regard to the
property at Bombay. However, it was controverted by the plaintiff stating
that he had purchased the same out of his own exertion independently.
When P.W.1 was confronted in cross-examination by the learned counsel
appearing for the first defendant, P.W.1 would simply claim that he got
the funds by way of presentations made by his relatives. But it is curious
enough to note that the plaintiff who pleaded self-acquisition of the said
items virtually failed to establish the fact as to how and when and what
part of the consideration he acquired in order to purchase the said two
items of properties. If the tenor of the cross-examination made to P.W.1
with regard to the claim of his self-acquisition is considered, as was done
by Mr.Vedantham Srinivasan, learned counsel for the first defendant, it
was made clear that the plaintiff during the time of purchase of the said
two items was not in a position to acquire such part of considertion and
that therefore, the said items of properties must have been purchased in
the name of the plaintiff with the funds derived from the joint family
property. By carefully analysing the entire adduced evidence, I am fully
constrained to hold that either the plaintiff or the first defendant had no
independent avocation or profession to purchase or acquire any separate
property, except the source of money derived from the joint family
properties, which are very much involved in this suit.'
13. The aforementioned paragraph has been assailed by
Sathappan in his OSA, viz., O.S.A. No.261 of 1995. The most
relevant grounds in the memorandum of grounds are grounds 84 to
90 and the same read as follows:
'84. The learned Judge erred in including the properties that
were purchased by the plaintiff during the pendency of the suit in
his name with his own funds.
85. The learned Judge failed to see that the property at Door
No.5, Bishop Garden, Madras-28 is the absolute property of the
plaintiff which has been purchased by the plaintiff after attaining
majority by means of a registered sale deed dated 3.08.1974.
86. The learned Judge failed to see that the property in
Bombay viz., 116, Arun Chamber Tardeo, Bombay-34 about 213
sq.ft. has been purchased by the plaintiff with his own funds after
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Review Application No.104 of 2003
shares in a co-operative society.
87. The learned Judge failed to see the properties purchased
by the plaintiff at No.5, Bishop Garden, Madras 28 and No.116,
Arun Chambers, Bombay-34 are his self-acquired properties and
they cannot be made the subject matter of the suit because on the
date of filing of the suit, there was disruption of status and there
was no joint family.
88. The learned Judge erred in holding that door No.5,
Bishop Garden, Madras 28 and No.116, Arun Chambers, Bombay-
34 are joint family properties.
89. The learned Judge failed to see that these two items were
not mentioned in the schedules in the written statement and there is
absolutely no pleading.
90. The learned Judge failed to see that the 1st defendant has
not eneterd the witness box to speak anything about these two
properties which are self-acquired properties of the plaintiff and
that too, during the pendency of the suit.'
14. We find that aforementioned ground 89 is the epicentre
of the captioned review. As would be evident from ground 89 which
is a pointed ground set out with specificity, the two items of
properties alluded to supra, viz., Bishop Garden house and Bombay
furnished flat properties have not been mentioned in the schedules in
the partition suit but one entire paragraph, viz., paragraph 269 has
been dedicated to these two properties and in this paragraph, a
verdict of sorts has been returned saying that neither Sathappan nor
his father Somasundaram Chettiar had any independent avocation or
profession to purchase these two properties and that the only source
was money derived from joint family properties. Be that as it may,
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Review Application No.104 of 2003
there is no disputation that these two properties, viz., Bishop Garden
house and Bombay furnished flat properties do not find place in the
preliminary decree in the partition suit.
15. As is the usual course, pursuant to the preliminary decree
in the partition suit, we are informed that an application for
appointment of Advocate Commissioner, obviously under Order XXVI
Rule 9 of the Code of Civil Procedure (hereinafter referred to as 'CPC'
for the sake of brevity) was taken out, Advocate Commissioner was
appointed and the matter progressed and now, final decree
proceedings are under way.
16. The tremors qua aforereferred the epicentre are in the
nature of claim in the final decree proceedings that these two
properties, viz., Bishop Garden house and Bombay furnished flat
properties should also be included in the partition decree and should
be made available for partition. That it should not be made available
for partition in the light of the narrative thus far is the bedrock of the
review application before us.
17. In the review application taken up by Sathappan seeking
review of the common judgment dated 13.11.2002 made in O.S.A.
No.261 of 1995, Mr. T.V. Ramanujun, learned Senior Counsel
instructed by Ms. R. Ramya, counsel on record for the review
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Review Application No.104 of 2003
applicant was before us in the physical Court.
18. As regards contesting respondents i.e., R26 to R28,
Mr.R.Parthasarathy, learned Senior Counsel was before us on the
video conference platform, Ms. S. Rekha and Ms. T. Supraja, counsel
on record, were before us in the physical Court (to be noted, this is a
hybrid hearing which is a regular/routine/daily feature in this Court).
19. As regards contesting respondents and other
respondents who have been given up, we deem it appropriate to
write that this order shall be read in conjunction with and in
continuation of earlier proceedings of this Court made in
C.M.P.Nos.168 and 169 of 2014 and 3 of 2011. In this regard, to be
noted, in the proceedings made in the listing on 01.08.2024, the
order dated 18.07.2024 has been extracted/reproduced and order
dated 01.08.2024 reads as follows:
Order dated 01.08.2024:
'C.M.P. Nos. 168 and 169 of 2014 and 3 of 2011
in
Rev. A. No.104 of 2003 in O.S.A. No.261 of 1995
M.SUNDAR, J.,
and
K.GOVINDARAJAN THILAKAVADI, J.,
(Order of the Court was made by M.SUNDAR, J.)
This common order will govern the captioned three 'Civil
Miscellaneous Petitions' ('CMPs' in plural and 'CMP' in singular
for the sake of brevity).
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Review Application No.104 of 2003
2. This common order has to be read in conjunction with
and in continuation of earlier proceedings made in the previous
listing on 18.07.2024, which reads as follows:
and
C.M.P. Nos.3 of 2011, 168 and 169 of 2014
M.SUNDAR,J.,
and
K.GOVINDARAJAN THILAKAVADI, J.,
(Order of the Court was made by M.SUNDAR, J.)
Main matter is Review Application No.104 of 2003. If the
review application is vintage, suit from which OSAs arise [review
application is qua common order dated 13.11.2002 in O.S.A.
Nos.261 of 1995, 237 of 1996 and 284 of 1996 (three OSAs)] is
ancient as the OSAs arise out of two suits of the year 1972 and
1983 i.e., C.S.Nos.188 of 1972 and 442 of 1983.
2. Ms.Ramya, learned counsel on record for three review
applicants submits that C.S.No.188 of 1972 is a partition suit filed
by one S.Sathappan, then minor represented by his mother
S.Meenakshi claiming half share in joint family properties. Learned
counsel submits that there are six schedules of properties to the suit
and each schedule consists of multiple items of immovable
properties. The other suit is C.S.No.442 of 1983 and this second
suit has been filed by one P.S.S.Somasundaram Chettiar (against
son Sathappan) seeking a declaration that his legal rights over his
properties is absolute and independent and that Sathappan has no
legal rights either by birth or by succession.
3. On 07.10.1994, a learned single Judge who tried both
suits together partly decreed the partition suit and dismissed the
declaration suit. To be noted, decree is obviously a preliminary
decree as C.S.No.188 of 1972 is a partition suit.
4. Learned counsel for review applicants submits that in this
common judgment dated 07.10.1994 (more particularly paragraphs
269 and 331 thereat), one property at Greenways Road and another
property being a flat in Bombay have been held to be joint family
properties and this now constitutes the kernel of the review
application before us.
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5. The aforementioned three OSAs are directed against this
07.10.1994 common judgment and decree (to be noted, there are
two appeals qua partition suit as it was partly decreed) and these
three OSAs came to be disposed of by a common order dated
13.11.2002 and captioned review application is directed against the
order in one of the three OSAs viz., O.S.A. No.261 of 1995.
6. As regards respondents in the review application, we find
that they are 25 in number. Cause list shows M/s.Surana and
Surana (Law Firm) represents R1 and R2 to R25 have been given
up vide Court order dated 30.08.2005.
7. Learned counsel for review applicants submits that two
CMPs viz., C.M.P.Nos.168 of 2014 and 169 of 2014 have been
taken out with prayers to declare two of the review applicants viz.,
S.S.Seetha and S.Jagan Somasundaram as majors and discharge
their guardianship (mother). The second application has been filed
(C.M.P. No.168 of 2014) with a prayer to bring on record the legal
heirs of deceased R1 / P.S.S.Somasundaram Chettiar. Learned
counsel submits that these two CMPs have to be considered first.
8. Though two CMPs come across as petitions with
innocuous prayers, as no one represented R1 today though name of
the counsel M/s.Surana and Surana (Law Firm) is duly shown in
the cause list, with the intention of giving opportunity to R1 and
counsel for R1, list this matter again on 01.08.2024.'
3. In the aforementioned proceedings in paragraph 2 in Line
No.5, 'six' schedules should read as 'ten' schedules. Ms.R.Ramya,
learned counsel for petitioners in captioned CMPs expressed regret
for the error in the previous proceedings which were made on the
basis of submission made at the Bar. This order will now be read as
errata/corrigendum in this regard qua aforementioned 18.07.2024
proceedings (on being uploaded).
4. Reverting to captioned CMPs, R1 –
Mr.P.S.S.Somasundaram Chettiar is no more, date of demise is
22.09.2013 and date of demise of his spouse is 06.10.2013.
Respondents 2 to 25 have been given up. As regards Respondents
26 to 28, who are to be brought on record, Ms.S.Rekha, learned
counsel has entered appearance and submits that she does not
oppose the prayer in C.M.P.No.168 of 2014. In C.M.P. No.168 of
2014, in the petition, Ms.R.Ramya submits that an inadvertent
typographical error has crept in and requests that 'R25 to R27' may
please be read as 'R26 to R28'. This request is acceded to.
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Review Application No.104 of 2003
5. In the light of captioned C.M.P. No.168 of 2014 not
being opposed and also taking into account the position that it is
not only innocuous but imperative for the matter to proceed,
C.M.P.No.168 of 2014 is ordered as prayed for. Registry to carry
out necessary and consequential amendments in the case file within
ten days from today i.e., by 09.08.2024.
6. As regards C.M.P. No.169 of 2014 which has been filed
with prayer for declaring the petitioners 2 and 3 as majors and for
discharging their guardianship, the position as regards the parties is
pretty much the same. In other words, R1 is no more, date of
demise is 22.09.2013, date of demise of spouse of R1 is
06.10.2013, R2 to R25 given up and R26 to R28 represented by
Ms.S.Rekha, counsel on record does not oppose the prayer.
Considering the nature of the prayer which is not only innocuous
but imperative for the matter to proceed, captioned C.M.P. No.169
of 2014 is also ordered as prayed for. (to be noted there is no
typographical error in the prayer in C.M.P. No.169 of 2014).
7. Registry to carry out necessary and consequential
amendments in the case file within ten days from today i.e., by
09.08.2024.
8. Captioned C.M.P. No.3 of 2011 is disposed of as closed
without expressing any view or opinion on the merits of the matter
as R1 is no more.'
20. The aforementioned proceedings speaks for itself and
therefore, all parties (both sides) which are in contest are
represented by counsel and learned Senior Counsel are leading
them.
21. In the course of the hearing, another factor which
emerged is that the review applicant has taken out two Civil
Miscellaneous Petitions ('CMPs' for the sake of brevity) viz., CMP
Nos.6208 and 6209 of 1998 under Order XLI Rule 27 of CPC with
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prayers to mark additional documents and these additional
documents are to buttress the argument that Somasundaram
Chettiar himself has taken a position that the two properties, viz.,
Bishop Garden house and Bombay furnished flat properties were
properties belonging to Sathappan and one such document sought to
be marked as additional evidence is a letter dated 12.04.1975
addressed by Somasundaram Chettiar to the Tax Recovery Officer
(Headquarters), Office of the Income Tax Department.
22. Before we proceed to set out the points urged as well as
our discussion and dispositive reasoning on each point, we deem it
appropriate to delineate with clarity and specificity the legal
perimeter within which the legal drill qua captioned review
application will perambulate.
23. The captioned review application has been filed, inter
alia under Order XLVII Rule 1 of CPC and therefore, the three
grounds on which a review can be entertained are:
i. discovery of a new and important matter or evidence which
is not within the knowledge of the review applicant and
could not be produced at the time when the decree was
made;
ii. some mistake or error apparent on the face of the record;
and
iii. any other sufficient reason.
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24. The review application was filed in this Court on
04.08.2003 but thereafter on 06.10.2003, the aforementioned
common judgment dated 13.11.2002 in three OSAs was carried to
Hon'ble Supreme Court by way of special leave petitions being
S.L.P.Nos.21044 and 21045 of 2003 and the same came to be
dismissed by the Supreme Court in and by an order dated
15.03.2004 and the same reads as follows:
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25. As regards the dismissal of the special leave petitions,
we remind ourselves of the judgment of the Supreme Court in
Kunhayammed vs. State of Kerala (2000) 6 SCC 359. Relevant
paragraphs in the said judgment are paragraphs 41 and 44 and the
same read as under:
'41. ......Once a special leave petition has been granted, the
doors for the exercise of appellate jurisdiction of this Court have been
let open. The order impugned before the Supreme Court becomes an
order appealed against. Any order passed thereafter would be an
appellate order and would attract the applicability of doctrine of
merger. It would not make a difference whether the order is one of
reversal or of modification or of dismissal affirming the order
appealed against. It would also not make any difference if the order is
a speaking or non-speaking one. Whenever this Court has felt inclined
to apply its mind to the merits of the order put in issue before it though
it may be inclined to affirm the same, it is customary with this Court to
grant leave to appeal and thereafter dismiss the appeal itself (and not
merely the petition for special leave) though at times the orders
granting leave to appeal and dismissing the appeal are contained in the
same order and at times the orders are quite brief. Nevertheless, the
order shows the exercise of appellate jurisdiction and therein the
merits of the order impugned having been subjected to judicial
scrutiny of this Court.
44. To sum up, our conclusions are:
(i) Where an appeal or revision is provided against an order
passed by a court, tribunal or any other authority before superior forum
and such superior forum modifies, reverses or affirms the decision put
in issue before it, the decision by the subordinate forum merges in the
decision by the superior forum and it is the latter which subsists,
remains operative and is capable of enforcement in the eye of law.'
26. Kunhayammed was subsequently reiterated in Khoday
Distilleries Ltd. vs. Sri Mahadeshwara Sahakara Sakkare
Karkhane Ltd., Kollegal, (2019) 4 SCC 376. Relevant paragraph
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from Khoday Distilleries Ltd. is paragraph 28 which reads as
under:
'28. In the instant case, since special leave petition was
dismissed in limine without giving any reasons, the review petition
filed by the appellant in the High Court would be maintainable and
should have been decided on merits. Order dated 12-11-2008 [Sri
Mahadeswara Sahakara Sakkare Karkhane Ltd. v. Khoday
Distilleries Ltd., 2008 SCC OnLine Kar 824] passed by the High
Court is accordingly set aside and matter is remanded back to the High
Court for deciding the review petition on merits. The civil appeal is
disposed of accordingly.' (emphasis supplied)
27. As we have adverted to Kunhayammed and Khoday,
going by the time-honoured declaration of law in celebrated
judgment of the Supreme Court in Padma Sundara Rao and
others v State of Tamil Nadu and others [(2002) 3 SCC 533],
we deem it appropriate to set out facts (very tersely though) in
Kunhayammed and Khoday.
28. In Kunhayammed, State of Kerala enacted the Kerala
Private Forests (Vesting and Assignment) Act, 1971 to vest the
Government with private forests in its State for assignment to
agriculturists for cultivation. The Act and the assent of the President
were published in the Gazette dated 23.08.1971 but the Act was
given a retrospective operation, deeming it to have come into force
on 10.05.1971. A family consisting of 71 members raised a dispute
before the Forest Tribunal, Kozhikode where 1020 acres of land was
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the subject-matter of dispute and vide order dated 11.08.1982 the
Tribunal held that the land did not vest with the Government. An
appeal was preferred by the State and the Kerala High Court
dismissed the same on 17.12.1982, thereafter the State filed a SLP
under Article 136 of the Constitution, which was dismissed vide order
dated 18.07.1983. By an Amendment Act No.36 of 1986 published in
the Gazette dated 01.12.1986, Section 8C was added with
retrospective effect from 19.11.1983. In January 1984, the State
filed a review of the order dated 17.12.1982 before Kerala High
Court. The High Court overruled the preliminary objection as to the
maintainability of the review petition, the petitioners therefore
sought for leave to appeal to Hon’ble Supreme Court and a bench of
two Judges of the Hon’ble Supreme Court referred the matter to a
bench of three Judges owing to the importance of the question
involved.
29. In Khoday, the respondent had filed a suit for recovery of
money along with interest before a City Civil Court at Bangalore.
Even after finding on merits that the appellant was liable to pay
money to the Respondent, the suit was dismissed on 11.11.2005 as
it was barred by limitation. Aggrieved over the same, the respondent
filed a appeal under Section 96 of the CPC which was allowed on
12.11.2008 on the ground that the original suit was filed within
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limitation. The amount claimed by the respondent was also decreed
along with interest. Subsequently, the appellant preferred SLP before
Hon'ble Supreme Court which was dismissed on 04.12.2009.
Following the dismissal of SLP, the respondent filed for the Execution
of the decreed amount before the trial court. However, aggrieved
appellant filed a review petition for the judgment dated 12.11.2008
before the High Court. The review petition was dismissed by the High
Court on the ground that SLP had been dismissed. The Appellant
challenged the dismissal of the review petition and the question of
law that was to be determined in the said circumstances was
whether a review petition is maintainable before a High Court when
an SLP against a judgment had already been dismissed.
30. In the same spirit, in Padma Sundara Rao, the factual
matrix is that a notification issued under Section 6 of the Land
Acquisition Act, 1894 was assailed in Madras High Court and the High
Court relying on N.Narasimhaiah case reported in (1996) 3 SCC 88
held that the same was validly issued. The matter was carried to
Hon'ble Supreme Court on the question of law as to whether after
quashing of a notification under section 6, a fresh period of one year
is available to the State Government to issue another notification
under section 6. It is in this context, i.e., while deciding this legal
question, a Constitution Bench of Hon'ble Supreme Court declared
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the law as regards how courts should place reliance on case laws /
precedents, relevant paragraph in Padma Sundara Rao is
paragraph 9 and same reads as follows:
'9. Courts should not place reliance on decisions without
discussing as to how the factual situation fits in with the fact situation
of the decision on which reliance is placed. There is always peril in
treating the words of a speech or judgment as though they are words in
a legislative enactment, and it is to be remembered that judicial
utterances are made in the setting of the facts of a particular case, said
Lord Morris in Herrington v. British Railways Board [(1972) 2 WLR
537 : 1972 AC 877 (HL) [Sub nom British Railways Board v.
Herrington, (1972) 1 All ER 749 (HL)]] . Circumstantial flexibility,
one additional or different fact may make a world of difference
between conclusions in two cases.' (emphasis supplied)
31. In the light of the narrative thus far, we find that a clear
prima facie case has been made out by the review applicant and
therefore, the review is admitted and with the consent of both sides,
main review application itself is taken up and heard out.
32. Before we write the rest of the order, we deem it
appropriate to say that both learned Senior Counsel very fairly
submitted that the obtaining legal position makes it clear that there
is no impediment whatsoever in having the captioned review
application heard out by this Court in the light of the trajectory the
matter had taken qua special leave petitions.
33. We now proceed to set out the points and also write our
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discussion and dispositive reasoning on the same, one after the
other, by way of an adumbration and the same is as follows:
(i) The first point urged by Mr. R. Parthasarathy
turns on the ground for review. In support of this, learned
Senior Counsel pressed into service two judgments, viz.,
oft-quoted judgment in Kamlesh Verma vs. Mayawati
and Others (2013) 8 SCC 320 and the recent judgment in
Tirupathi Rao vs. M. Lingamaiah and others (2024
SCC OnLine SC 1764).
In Kamlesh Verma, the facts are that Hon'ble
Supreme Court had earlier directed CBI to conduct enquiry
qua the irregularities committed by officers/persons
concerned in the Taj Heritage Corridor Project and submit a
preliminary report, the CBI filed a report, on the basis of the
same, Hon'ble Supreme Court passed an order directing CBI
to conduct an inquiry with respect to the execution of the
Taj Heritage Corridor Project under the Taj Trapezium Zone
(TTZ) area at Agra which culminated in registration of an
FIR dated 05.10.2003 under various provisions of the Indian
Penal Code, 1860 and the Prevention of Corruption Act,
1988 against several persons including Ms. Mayawati. On
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Review Application No.104 of 2003
the very same day, another FIR was lodged against
Ms.Mayawati with respect to acquisition of disproportionate
movable and immovable assets. Aggrieved over filing of this
FIR, Ms. Mayawati and another preferred Writ Petition (Crl.)
No. 135 of 2008 before Hon'ble Supreme Court. One
Mr.Kamlesh Verma also moved an application for
intervention in the said writ petition. Hon'ble Supreme Court
vide order dated 6.7.2012 had quashed the FIR holding that
the order dated 18.09.2003 does not contain any specific
direction regarding lodging of FIR in the matter of
disproportionate assets case against Ms Mayawati and CBI
exceeded its jurisdiction in lodging the same and also
allowed the application for intervention. Feeling aggrieved
over quashing of FIR, Mr.Kamlesh Verma filed a review
petition. In this Kamlesh Verma review petition, Hon'ble
Supreme Court set out principles as to when a review is
maintainable and as to when it is not maintainable.
Relevant paragraph in Kamlesh Verma is paragraph
20 and sub paragraphs thereat which reads as follows:
'20. Thus, in view of the above, the following
grounds of review are maintainable as stipulated by the
statute:
20.1. When the review will be maintainable:
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(i) Discovery of new and important matter or
evidence which, after the exercise of due diligence, was not
within knowledge of the petitioner or could not be
produced by him;
(ii) Mistake or error apparent on the face of the
record;
(iii) Any other sufficient reason.
The words “any other sufficient reason” have been
interpreted in Chhajju Ram v. Neki [(1921-22) 49 IA 144 :
(1922) 16 LW 37 : AIR 1922 PC 112] and approved by
this Court in Moran Mar Basselios Catholicos v. Most
Rev. Mar Poulose Athanasius [AIR 1954 SC 526 : (1955)
1 SCR 520] to mean “a reason sufficient on grounds at
least analogous to those specified in the rule”. The same
principles have been reiterated in Union of India v. Sandur
Manganese & Iron Ores Ltd. [(2013) 8 SCC 337 : JT
(2013) 8 SC 275]
20.2. When the review will not be maintainable:
(i) A repetition of old and overruled argument is not
enough to reopen concluded adjudications.
(ii) Minor mistakes of inconsequential import.
(iii) Review proceedings cannot be equated with the
original hearing of the case.
(iv) Review is not maintainable unless the material
error, manifest on the face of the order, undermines its
soundness or results in miscarriage of justice.
(v) A review is by no means an appeal in disguise
whereby an erroneous decision is reheard and corrected but
lies only for patent error.
(vi) The mere possibility of two views on the
subject cannot be a ground for review.
(vii) The error apparent on the face of the record
should not be an error which has to be fished out and
searched.
(viii) The appreciation of evidence on record is fully
within the domain of the appellate court, it cannot be
permitted to be advanced in the review petition.
(ix) Review is not maintainable when the same
relief sought at the time of arguing the main matter had
been negatived.'
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In Tirupathi Rao, the facts are, one Ms. Sultana
Jahan Begum, instituted an Original Suit seeking a partition
of her father's properties. A preliminary decree was passed
on a compromise on 06.04.1959. On 26.12.2003, the High
Court for the State of Telangana at Hyderabad passed a
final decree in favour of the first respondent. Subsequently,
Nawab Zaheer Yar Jung's descendants claimed the subject
land to be a jagir land which was rejected by Nazim-e-Atiyat
and the land was escheated to the Government as per
Board of Revenue order. Despite this, in 2003, the decree
holders executed an assignment deed in favour of the first
respondent and the final decree in 2003 was also in favour
of the first respondent. The respondent’s attempts to have
the decree enforced through mutation were thwarted,
leading him to file a writ petition. The High Court directed
the Tahsildar to effectuate the mutation but the Tahsildar’s
inaction led to a contempt petition in 2014. The Single
Judge found the Tahsildar guilty vide an order dated
04.10.2017 in contempt. The appeals against this order
resulted in a Division Bench ruling which vide order dated
16.08.2018, held that the contempt petition was barred by
limitation and therefore, the State could not be bound by
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the decree. Hon’ble Supreme Court dismissed the first
respondent’s SLP against the order dated 16.08.2018.
Thereafter, review petitions that were filed against the order
dated 16.08.2018 were allowed by another Division Bench
of the High Court which while recalling the order under
review, dismissed contempt appeal as well as a letters
patent appeal of the appellant. This became the core of the
appeal in Tirupathi Rao, where Hon’ble Supreme Court
concluded that the High Court exceeded both its review and
contempt jurisdiction.
Relevant paragraphs in Tirupathi Rao are paragraphs
11 to 15 which read as under:
'11. While proceeding to determine the correctness
of the impugned order vis-à-vis the exercise of review
jurisdiction, we ought to remind ourselves of certain
cardinal principles. The exercise of review jurisdiction is
not an inherent power given to the court; the power to
review has to be specifically conferred by law. In civil
proceedings, review jurisdiction is governed by section 114
read in conjunction with order XLVII of the CPC and the
court has to be certain that the elements prescribed therein
are satisfied before exercising such power. This Court in
Kamlesh Verma v. Mayawati has succinctly observed that:
“19. 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 CPC.”
(emphasis ours)
12. That the provisions contained in section 114 and
Order XLVII of the CPC relating to review of an order or
decree are mandatory in nature and any petition for review
not satisfying the rigours therein cannot be entertained ex
debito justitiae, by a court of law, is trite.
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13. There is a plethora of decisions analysing the
statutory provisions governing the exercise of review
jurisdiction; however, we would be referring to a few of
them for the purpose of the present exercise. Suffice it to
note that despite legal proceedings having commenced with
institution of the civil suit as far back as in 1953, the
present controversy has, as its source, a writ petition
between the first respondent and the Tahsildar preferred in
2009. Although the explanation to section 141 of the CPC
makes it clear that provisions of the CPC would not apply
to proceedings under Article 226 of the Constitution, there
is authority in abundance that the principles flowing from
the CPC may safely be taken as a guide to decide writ
proceedings but to the extent the same can be made
applicable.
14. To put it plainly, Order XLVII Rule 1 of the
CPC provides three grounds for review:
1) discovery of new and important matter or
evidence which, after the exercise of due diligence was not
within the applicant's knowledge or could not be produced
by the applicant at the time when the decree was passed, or
order made; or
2) mistake or error apparent on the face of the
record; or
3) for any other sufficient reason, which must be
analogous to either of the aforesaid grounds.
15. In Moran Mar Basselios Catholicos v. Most
Rev. Mar Paulose Athanasius, this Court approved the view
that the third ground - “any other sufficient cause” must
mean a reason sufficient on grounds, at least analogous to
the first two grounds. The same view has been reiterated in
a recent decision of this Court in State (NCT of Delhi) v.
K.L. Rathi Steels Ltd.. This Court affirmed that the scope
of the third ground had to be narrowly construed so as to
not traverse beyond the orbit of the first two grounds.'
Adverting to clause (ix) in paragraph 20.2 in Kamlesh
Verma, which according to learned Senior Counsel is
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Review Application No.104 of 2003
buttressed by Tirupathi Rao, learned Senior counsel
submitted that the relief has been sought at the time of
arguing the main matter and has been negatived.
We carefully considered this point. In his effort to
buttress his argument that the kernel of the captioned
review application is a ground which has been argued and
negatived, Mr.R.Parthasarathy, learned Senior Counsel drew
our attention to paragraph 11 of the common judgment in
OSAs, i.e., judgment which is sought to be reviewed which
reads as follows:
'11. In the appeal, the plaintiff has pressed his relief
only with respect to Item Nos.9 and 10 in first Schedule,
Item Nos.1, 6 to 10 and 12 in the IV Schedule, the title
deeds mentioned in VII Schedule with respect to the above
said properties, and the properties mentioned in the VIII to
X Schedules. With respect to other items mentioned in the
plaint, we are not concerned in these Appeals.'
A careful perusal of the common judgment makes it clear
for the appellants that the predecessor Hon'ble Division
Bench for the sake of clarity has set out those of the
schedules on which the appellants are predicating their
arguments. We are unable to persuade ourselves to believe
that paragraph 11 of the order sought to be reviewed
means that grounds 84 to 90 raised by Sathappan in the
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Memorandum of Grounds of Appeal in OSA 261 of 1995 has
been argued and negatived. Therefore, the sequitur is, this
really does not cut ice qua resistance to the review legal
drill. As already alluded to supra, the kernel of the matter
at hand is paragraph 269 of the common judgment which
has been assailed by way of memorandum of grounds vide
grounds 84 to 90 but the judgment dated 13.11.2002 in the
OSAs has neither adverted to those grounds nor considered
the issue. Therefore, we are of the considered view that it
cannot be gainsaid that the point on which the captioned
review application is predicated is a point which turns on a
relief that was sought at the time of arguing the main
matter but had been negatived. It will fall in the category
of a matter where a pointed ground passed sub silentio qua
the appeal judgment that is sought to be reviewed. In the
light of our view with regard to the ground regarding
paragraph 269 of the common judgment passing sub
silentio in the appeal judgment (that is sought to be
reviewed), it follows as a sequitur that review is imperative
as it clearly falls under 'any other sufficient reason' category
as regards review. This is buttressed by the submission of
Mr.T.V.Ramanujun, learned Senior Counsel that two
applications under Order XLI Rule 27 of CPC have been
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taken out but the judgment sought to be reviewed is silent
about this also.
Turning to the applications filed under Order XLI Rule
27 of CPC, the law is well settled now vide Union of India
vs. Ibrahim Uddin and another (2012) 8 SCC 148 and
Malayalam Plantations Ltd. vs. State of Kerala and
another (2010) 13 SCC 487 that such applications have
to be taken up with the main appeal.
In Ibrahim Uddin, the facts are one Mr.Ibrahim
Uddin filed a suit in O.S.No.442 of 1995 before Court of Civil
Judge, Agra seeking a decree for declaration that he was
the owner of the suit property stating that originally suit
land had been with Maratha Government and ancestors of
plaintiff having close association with Maratha Government,
were made a grant in respect of the suit land in the year
1800. The land was subsequently partitioned between the
ancestors of the plaintiff in the year 1819. He became the
absolute owner of the land after the death of his mother
Smt.Hasin Begum. The suit land was given on rent to State
authorities in Agra by executing a rent note. Union of India
had claimed title over the suit land illegally. The suit was
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contested. The trial court came to the conclusion that
plaintiff failed to prove the partition between his ancestors
and the lease deed alleged to have been executed in favour
of the Military Estate Officer under Union of India was not
successfully proved and hence dismissed the suit. Plaintiff
preferred the first appeal before the District Court, Agra and
during the pendency of the said appeal, he preferred an
application under Order XLI Rule 27 of CPC adducing
additional evidence. The said application was allowed by the
first appellate Court and the first appeal was also allowed by
the first appellate Court. Having aggrieved, Union of India
preferred second appeal before the High Court which has
been dismissed. Against the dismissal, the appellant
approached Hon'ble Supreme Court. Hon'ble Supreme
Court, while dealing with the issue qua Order XLI Rule 27 of
CPC, has observed that the general principle is that the
appellate court should not travel outside the record of the
lower Court and cannot take any evidence in appeal.
However, it was held that this Rule is not so absolute that it
does not admit of exception as Order XLI Rule 27 of CPC
was held to enable the appellate court to take additional
evidence in exceptional circumstances but the appellate
court may permit additional evidence only if the conditions
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laid down in the Rule are found to exist.
Relevant paragraphs in Ibrahim Uddin are
paragraphs 36 and 49 and the same read as follows:
'36. The general principle is that the appellate court
should not travel outside the record of the lower court and
cannot take any evidence in appeal. However, as an
exception, Order 41 Rule 27 CPC enables the appellate
court to take additional evidence in exceptional
circumstances. The appellate court may permit additional
evidence only and only if the conditions laid down in this
Rule are found to exist. The parties are not entitled, as of
right, to the admission of such evidence. Thus, the
provision does not apply, when on the basis of the evidence
on record, the appellate court can pronounce a satisfactory
judgment. The matter is entirely within the discretion of the
court and is to be used sparingly. Such a discretion is only a
judicial discretion circumscribed by the limitation specified
in the Rule itself. (Vide K. Venkataramiah v. A.
Seetharama Reddy [AIR 1963 SC 1526] , Municipal
Corpn. of Greater Bombay v. Lala Pancham [AIR 1965 SC
1008] , Soonda Ram v. Rameshwarlal [(1975) 3 SCC 698 :
AIR 1975 SC 479] and Syed Abdul Khader v. Rami Reddy
[(1979) 2 SCC 601 : AIR 1979 SC 553] .)
49. An application under Order 41 Rule 27 CPC is
to be considered at the time of hearing of appeal on merits
so as to find out whether the documents and/or the
evidence sought to be adduced have any relevance/bearing
on the issues involved. The admissibility of additional
evidence does not depend upon the relevancy to the issue
on hand, or on the fact, whether the applicant had an
opportunity for adducing such evidence at an earlier stage
or not, but it depends upon whether or not the appellate
court requires the evidence sought to be adduced to enable
it to pronounce judgment or for any other substantial cause.
The true test, therefore is, whether the appellate court is
able to pronounce judgment on the materials before it
without taking into consideration the additional evidence
sought to be adduced. Such occasion would arise only if on
examining the evidence as it stands the court comes to the
conclusion that some inherent lacuna or defect becomes
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apparent to the court. (Vide Arjan Singh v. Kartar Singh
Review Application No.104 of 2003
[1951 SCC 178 : AIR 1951 SC 193] and Natha Singh v.
Financial Commr., Taxation [(1976) 3 SCC 28 : AIR 1976
SC 1053].)'
In Malayalam Plantations, the facts are, the
appellant Malayalam Plantations owns five estates in South
Wayanad Taluk, Kerala and doing cultivation of tea, coffee,
cocoa, rubber, cardamom and cinnamon. The Kerala Private
Forests (Vesting and Assignment) Act, 1971 came into force
and an area of 5,131 ha of land which was in possession of
Malayalam Plantations was deemed to be vested under the
said Act. Malayalam Plantations filed five applications before
learned Forest Tribunal, Kozhikode in respect of its five
Wayanad estates challenging the vesting of 2,588 ha out of
the 5,131 ha which were either planted with eucalyptus by
them prior to the vesting or were utilised for the purpose of
fuel requirement for its factory and for the use of its
employees. Forest Tribunal vide common order dated
13.03.1979 exempted the entire 2588 ha from the vesting
provisions of the Act. State of Kerala has filed appeals
against the said order before the High Court of Kerala.
Malayalam Plantations has also filed appeals claiming that
exemption was granted only on the ground of estoppel on
account of collection of land tax for the areas involved even
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after the vesting and other grounds urged were not
accepted by the Tribunal. A Full Bench of the Kerala High
Court, vide its judgment dated 29.09.1980, while allowing
the appeals filed by the Government, had upheld the
exemption for the roads and buildings. Aggrieved Malayalam
Plantations filed five appeals before Hon'ble Supreme Court.
The State Government has also preferred appeals. Hon'ble
Supreme Court vide judgment dated 24.08.1992 set aside
the judgment of the Kerala High Court and remanded OAs
Nos. 3, 4, 5, 6 and 26 of 1975 to the Forest Tribunal,
Kozhikode with a direction to determine and exempt the
extent of land required by the appellant Malayalam
Plantations for the purpose of growing trees for fuel
requirement i.e. firewood purposes for its factory as well as
for the employees working in the estates. The Tribunal,
after hearing both parties by common judgment dated
15.12.1994 exempted and excluded 1400 ha of land from
the vesting provisions of the Act as areas required for
firewood purposes. State of Kerala filed an appeal before
the High Court, challenging the said judgment. The
appellant has filed a cross-appeal. By judgment dated
31.05.2002, Hon'ble Division Bench of Kerala High Court
exempted 730.58 ha of eucalyptus lands from vesting but
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held that no forest areas could be exempted for the purpose
of firewood in view of the decision of Hon'ble Supreme
Court in State of Kerala v. Pullangode Rubber & Produce
Co. Ltd. [(1999) 6 SCC 92] holding that such areas should
not be considered for exemption in the absence of proof
that they were actually used in 1971. The Government's
appeal was partially allowed and appellant's cross-appeal
claiming the whole area was dismissed. Both appellant and
the State Government have filed appeals before Hon'ble
Supreme Court. Hon'ble Supreme Court has considered the
issue qua Order XLI Rule 27 of CPC and relevant paragraphs
are paragraphs 15 and 16 which read as follows:
'15. In view of the above provision, in our opinion,
when an application for reception of additional evidence
under Order 41 Rule 27 CPC was filed by the parties, it was
the duty of the High Court to deal with the same on merits.
The above principle has been reiterated by this Court in
Jatinder Singh v. Mehar Singh [(2009) 17 SCC 465 : AIR
2009 SC 354] and Shyam Gopal Bindal v. Land Acquisition
Officer [(2010) 2 SCC 316].
16. If any petition is filed under Order 41 Rule 27 in
an appeal, it is incumbent on the part of the appellate court to
consider at the time of hearing the appeal on merits so as to
find out whether the documents or evidence sought to be
adduced have any relevance/bearing on the issues involved. It
is trite to observe that under Order 41 Rule 27, additional
evidence could be adduced in one of the three situations,
namely, (a) whether the trial court has illegally refused the
evidence although it ought to have been permitted; (b)
whether the evidence sought to be adduced by the party was
not available to it despite the exercise of due diligence; (c)
whether additional evidence was necessary in order to enable
the appellate court to pronounce the judgment or any other
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Review Application No.104 of 2003
The aforementioned Ibrahim Uddin and Malayalam
Plantations principles make it clear that when the OSAs
were disposed of along with the main appeal, the CMPs filed
under Order XLI Rule 27 of CPC ought to have been taken
up and the same should have been decided but the same
was not done and this, by itself, becomes a ground for
review as it falls under the category of 'any other sufficient
reason'.
In this regard, judgments of Hon'ble Supreme Court in
S.Nagaraj and others vs State of Karnataka and
another 1993 Supp (4) SCC 595 and Beghar
Foundation and Justice K.S. Puttaswamy and others
(2021) 3 SCC 1 pressed into service by learned Senior
Counsel Mr. T.V. Ramanujun are relevant.
The facts in S.Nagaraj are that in 1977, the
Government of Karnataka framed a scheme for employment
for unemployed graduates, who come from families earning
less than Rs.3,600/- as their annual income. The
Government framed the Karnataka Civil Services (Special
Recruitment) Rules, 1982, reserving 50% of direct
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recruitment for the stipendiary graduates and local
candidates in various posts including First and Second
Division Assistants in State Civil services, for which a
competitive examination would be conducted. The 1987
amendment made the rules applicable to posts in group ‘C’
in the State Civil services, 50% reservation was split into
40% for stipendiary graduates and 10% for local candidates
and lastly examination was done away with for the posts.
Another set of rules had been framed in 1986 for ‘local
candidates’ as defined in Clause 27-A of Rule 8 of the
Karnataka Civil Service Rules. In a matter that went up to
Hon’ble Supreme Court with respect to Rules, Hon’ble
Supreme Court ordered for the vacancies to be filled in
category ‘C’ by the stipendiary graduates who fulfil the
required qualifications. The petitioners persuaded Hon’ble
Supreme Court to add the word ‘graduate’ before the word
‘qualification’ in its order dated 24.07.1990. For
implementing orders of Hon’ble Supreme Court and
absorbing the stipendiary graduates in posts carrying
graduate qualification, the Government now decided that
absorption could be both against First Division and Second
Division Assistants. For this, the stipendiary graduates, who
by now had become armed not only with orders of
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absorption and regularisation but absorption against posts
carrying graduate qualification, were not willing. They were
not agreeable to accept the post of Lower Division Assistant
in group ‘C’ as the minimum qualification for this was only
SSLC and they being graduates and post graduates could
not be asked to accept a post meant for matriculates. Vide
order dated 30.10.1991, Hon’ble Supreme Court directed
the Government to absorb all stipendiary graduates as First
Division Assistants. It was after both administrative and
financial difficulty, the Government sought for clarification of
the order dated 30.10.1991 as it was beyond the scope of
the order dated 24.07.1990. Hon’ble Supreme Court
modified its order dated 30.10.1991 with a direction that
stipendiary graduates can be appointed as Second Division
Assistants. In this S.Nagaraj case, Hon'ble Supreme Court
has dealt with the issue relating to review of an order.
Relevant paragraphs in S. Nagaraj are 18 and 19
which read as follows:
'18. Justice is a virtue which transcends all
barriers. Neither the rules of procedure nor technicalities of
law can stand in its way. The order of the Court should not
be prejudicial to anyone. Rule of stare decisis is adhered for
consistency but it is not as inflexible in Administrative Law
as in Public Law. Even the law bends before justice. Entire
concept of writ jurisdiction exercised by the higher courts is
founded on equity and fairness. If the Court finds that the
order was passed under a mistake and it would not have
exercised the jurisdiction but for the erroneous assumption
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which in fact did not exist and its perpetration shall result in
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miscarriage of justice then it cannot on any principle be
precluded from rectifying the error. Mistake is accepted as
valid reason to recall an order. Difference lies in the nature
of mistake and scope of rectification, depending on if it is of
fact or law. But the root from which the power flows is the
anxiety to avoid injustice. It is either statutory or inherent.
The latter is available where the mistake is of the Court. In
Administrative Law the scope is still wider. Technicalities
apart if the Court is satisfied of the injustice then it is its
constitutional and legal obligation to set it right by recalling
its order. Here as explained, the Bench of which one of us
(Sahai, J.) was a member did commit an error in placing all
the stipendiary graduates in the scale of First Division
Assistants due to State's failure to bring correct facts on
record. But that obviously cannot stand in the way of the
Court correcting its mistake. Such inequitable consequences
as have surfaced now due to vague affidavit filed by the
State cannot be permitted to continue.
19. Review literally and even judicially means re-
examination or re-consideration. Basic philosophy inherent
in it is the universal acceptance of human fallibility. Yet in
the realm of law the courts and even the statutes lean
strongly in favour of finality of decision legally and
properly made. Exceptions both statutorily and judicially
have been carved out to correct accidental mistakes or
miscarriage of justice. Even when there was no statutory
provision and no rules were framed by the highest court
indicating the circumstances in which it could rectify its
order the courts culled out such power to avoid abuse of
process or miscarriage of justice. In Raja Prithwi Chand Lal
Choudhury v. Sukhraj Rai [AIR 1941 FC 1, 2 : 1940 FCR
78 : (1941) 1 MLJ Supp 45] the Court observed that even
though no rules had been framed permitting the highest
Court to review its order yet it was available on the limited
and narrow ground developed by the Privy Council and the
House of Lords. The Court approved the principle laid
down by the Privy Council in Rajunder Narain Rae v. Bijai
Govind Singh [(1836) 1 Moo PC 117 : 2 MIA 181 : 1 Sar
175] that an order made by the Court was final and could
not be altered:
“… nevertheless, if by misprision in
embodying the judgments, by errors have been
introduced, these Courts possess, by Common
law, the same power which the Courts of record
and statute have of rectifying the mistakes which
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Review Application No.104 of 2003
have crept in …. The House of Lords exercises a
similar power of rectifying mistakes made in
drawing up its own judgments, and this Court
must possess the same authority. The Lords have
however gone a step further, and have corrected
mistakes introduced through inadvertence in the
details of judgments; or have supplied manifest
defects in order to enable the decrees to be
enforced, or have added explanatory matter, or
have reconciled inconsistencies.”
Basis for exercise of the power was stated in the same
decision as under:
“It is impossible to doubt that the indulgence
extended in such cases is mainly owing to the natural desire
prevailing to prevent irremediable injustice being done by a
Court of last resort, where by some accident, without any
blame, the party has not been heard and an order has been
inadvertently made as if the party had been heard.”
Rectification of an order thus stems from the fundamental
principle that justice is above all. It is exercised to remove
the error and not for disturbing finality. When the
Constitution was framed the substantive power to rectify or
recall the order passed by this Court was specifically
provided by Article 137 of the Constitution. Our
Constitution-makers who had the practical wisdom to
visualise the efficacy of such provision expressly conferred
the substantive power to review any judgment or order by
Article 137 of the Constitution. And clause (c) of Article
145 permitted this Court to frame rules as to the conditions
subject to which any judgment or order may be reviewed. In
exercise of this power Order XL had been framed
empowering this Court to review an order in civil
proceedings on grounds analogous to Order XLVII Rule 1
of the Civil Procedure Code. The expression, ‘for any other
sufficient reason’ in the clause has been given an expanded
meaning and a decree or order passed under
misapprehension of true state of circumstances has been
held to be sufficient ground to exercise the power. Apart
from Order XL Rule 1 of the Supreme Court Rules this
Court has the inherent power to make such orders as may
be necessary in the interest of justice or to prevent the abuse
of process of Court. The Court is thus not precluded from
recalling or reviewing its own order if it is satisfied that it is
necessary to do so for sake of justice.'
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The facts in Beghar Foundation are that a batch of
petitions sought a review of the decision of the Constitution
Bench of Hon’ble Supreme Court in K.S. Puttaswamy
(Aadhaar-5 J.) v. Union of India, (2019) 1 SCC 1.
Hon’ble Supreme Court had to answer, whether the decision
of the Speaker of the House of People under Article 110(3)
of the Constitution, to certify a bill as a ‘Money Bill’ under
Article 110(1) is subject to judicial review; and if subject to
judicial review, whether the Aadhaar (Targeted Delivery of
Financial and Other Subsidies, Benefits and Services) Act,
2016 was correctly certified as a ‘Money Bill’ under Article
110(1) of the Constitution. Hon'ble Supreme Court has
considered in this case / has dealt with the power of the
Court to review its own order. Relevant paragraph in
Beghar Foundation is paragraph 19 which reads as
follows:
'19. In Kantaru Rajeevaru (Right to Religion, In re-9
J.) (2) v. Indian Young Lawyers Assn. [Kantaru Rajeevaru
(Right to Religion, In re-9 J.) (2) v. Indian Young Lawyers
Assn., (2020) 9 SCC 121], a nine-Judge Bench of this Court
had to determine whether a reference could be made to a
larger Bench in a pending review petition. Answering this
in the affirmative, the Court held that it need not admit the
review petitions before referring the question to a larger
Bench. Further, the Court noted that such a question could
also be a pure question of law. In explaining the power of
this Court to review its own judgments, S.A. Bobde, C.J.,
speaking for the Bench, held thus : (SCC pp. 133-34, para
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29)
Review Application No.104 of 2003
“29. Order LV Rule 6 makes it crystal clear that the
inherent power of this Court to make such orders as may be
necessary for the ends of justice shall not be limited by the
Rules. In S. Nagaraj v. State of Karnataka [S. Nagaraj v.
State of Karnataka, 1993 Supp (4) SCC 595 : 1994 SCC
(L&S) 320] , it was observed that even when there was no
statutory provision and no rules were framed by the highest
court indicating the circumstances in which it could rectify
its orders, the courts culled out such power to avoid abuse
of process or miscarriage of justice. It was further held that
this Court is not precluded from recalling or reviewing its
own order if it is satisfied that it is necessary to do so for
the sake of justice. The logical extension to the above is that
reference of questions of law can be made in any pending
proceeding before this Court, including the instant review
proceedings, to meet the ends of justice.” '
(ii) Now that we have made it clear that review is
imperative, we now proceed to consider the question as to
what happens to Order XLI Rule 27 of CPC applications
which never saw the light of the day.
As regards applications filed under Order XLI Rule 27
of CPC, we are of the considered view that owing to
dismissal of declaration suit lock, stock and barrel and the
same being given legal quietus now, at this distant point of
time, dismissal of declaration suit having been given legal
quietus, it is really not necessary to take up Order XLI
Order 27 applications which have lost steam and relevance
as the entire position regarding Bishop Garden house and
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Review Application No.104 of 2003
However, we make it clear that not taking up the
applications filed under Order XLI Rule 27 of CPC when the
main appeal was heard out is also clearly 'other sufficient
reason' for review and we are only saying that review can
now be heard without recourse to/resorting to additional
evidence in the light of legal quietus given to declaration
suit dismissal and confirmation of same in appeal (OSA).
As already alluded to supra, the judgment that is
sought to be reviewed, is common judgment in three
OSAs. In this common judgment, OSA No.237 of 1996 is
directed against dismissal of declaration suit viz.,
C.S.No.442 of 1983. When the OSAs were pending or to
put it as metaphor, when the pot was boiling, Order XLI
Rule 27 of CPC applications were relevant but thereafter
(continuing the metaphor) now when the rice has been
cooked in the pot and that the pot has nicely settled down,
additional evidence applications have lost steam and
therefore, we are writing that these applications for
additional evidence in Order XLI Rule 27 are really not
necessary. To add clarity and specificity, we deem it
appropriate to write that when the correctness or
otherwise of the dismissal decree in the declaration suit
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Review Application No.104 of 2003
viz., CS.No.442 of 1983 was subjected to intra-Court
appeal legal drill, the applications for additional evidence
were filed but dehors these applications, the decree of
dismissal in the declaration suit has been confirmed as
OSA.No.237 of 1996 against the same has been dismissed.
We are not disturbing the dismissal of OSA.No.237 of 1996
as would be evident from the operative portion infra.
There is also no disputation or contestation before us that
the dismissal decree in the declaration suit viz.,
OSA.No.237 of 1996 has attained finality i.e., given legal
quietus by contesting parties also as declaration sought by
Somasundaram Chettiar qua two immovable parties viz.,
Bishop Garden house and Bombay furnished flat properties
has been negatived, additional evidence to hammer home
the point that Somasundaram Chettiar himself has not
claimed the two properties to be his own is really not
necessary as the point is clear as day light owing to
confirmation of declaration suit in appeal being given
quietus. It is in this view of the matter, we write that
additional evidence applications have outlived their
purpose at this distant point of time as much water has
flown under the bridge and the dismissal decree in the
declaration suit has crystallized the attained legal points.
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Review Application No.104 of 2003
Now that we have held that review is imperative, the
narrative navigates itself towards the ground 89 point
which has been described as the epicentre of the review
application, which in turn assails the nucleus viz.,
paragraph 269 of the common judgment dated
07.10.1994.
The grounds qua paragraph 269 viz., grounds 84 to
90 in the memorandum of grounds of OSA have also
passed sub silentio and therefore, in the review which we
have held to be imperative, we would consider these
grounds.
As it is clear as day light that Bishop Garden house
property and Bombay furnished flat property are subject
matter of declaration suit, as declaration suit which seeks
a declaration that Somasundaram Chettiar is the absolute
owner and that Sathappan has no right of succession
either by birth or in any other manner has been dismissed
lock, stock and barrel and as the same has been confirmed
in (OSA) appeal which has been given legal quietus, we
are of the view that aforereferred paragraph 269 becomes
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Review Application No.104 of 2003
a precipitate which does not gel nay runs contrary to the
dispositive reasoning qua rest of the common judgment in
C.S.Nos.188 of 1972, 366 of 1976 and 442 of 1983.
Therefore, we are of the considered view that
paragraph 269 of the common judgment dated 07.10.1994
in C.S.Nos.188 of 1972, 366 of 1976 and 442 of 1983
deserves to be set aside, we do so (without the need to
resort to / taking recourse to additional evidence) and hold
that paragraph 269 is set aside and that paragraph 269
being set aside, will now be read as an addendum to the
judgment dated 13.11.2002 in the three OSAs which now
stands reviewed by the instant order in the captioned
review application.
34. Though obvious, we make it clear that final decree
proceedings will now stand governed by this order in the review
application which reviews the judgment dated 13.11.2002 made in
O.S.A. No.261 of 1995.
35. When this Court writes that paragraph 269 of the
common judgment confirmed in appeal judgment that is sought to be
reviewed is set aside, we deem it appropriate to set out with
enhanced clarity and specificity the impact of deletion of paragraph
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Review Application No.104 of 2003
269 and the same is as follows:
(a)Two properties, viz.,, Bishop Garden house and
Bombay furnished flat properties are not available for
partition;
(b)As regards aforesaid two immovable properties,
the legal consequence / impact of dismissal of declaration
suit will govern the same;
(c)In the three decrees, there is no mention about
aforesaid two immovable properties, viz., Bishop Garden
house and Bombay furnished flat properties. Therefore,
decrees do not present any problem;
(d)However, the manner in which difficulty may
present itself is the observation in common judgment,
one such observation is paragraph 269 and the same is
now set aside. Therefore, we make it clear that any other
observation in the common judgment as confirmed in
appeal judgment that is sought to be reviewed which is in
tune and tandem with paragraph 269 will now be treated
as not binding on either of the parties or any one for that
matter. We also make it clear that rest of the common
judgment dated 07.10.1994 in C.S.Nos.188 of 1972, 366
of 1976 and 442 of 1983 and obviously decrees flowing
from the same remain unamended / untouched ;
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Review Application No.104 of 2003
(e)Likewise, axiomatically, any other paragraph/s
running contrary to aforesaid clarification, i.e.,
clarification that Bishop Garden house and Bombay
furnished flat properties are not available for partition will
also be treated as not binding on either of the parties and
/ or any other person concerned.
(f) In all other aspects, the common judgment
confirmed in appeal judgment that is sought to be
reviewed being judgment dated 13.11.2002 and three
decrees flowing from the same stand unamended,
unaltered and untouched.
36. As we mentioned at the very outset, the entire matter is
over half a century old and therefore, we are of the view that the
parties will do well to give a closure to the final decree proceedings
as expeditiously as possible by rendering assistance to the Hon'ble
Court concerned so that this ancient matter is concluded.
The captioned review application is allowed and ordered in the
aforementioned manner. There shall be no order as to costs.
(M.S.,J.) (R.S.V.,J.)
03.09.2024
cad/vvk
Index : Yes
NC
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: Yes
Review Application No.104 of 2003
M. SUNDAR, J.
and
R. SAKTHIVEL, J.
cad/vvk
Review Application No.104 of 2003
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Review Application No.104 of 2003
03.09.2024
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