Dismissed

Venkalath Raveendran, v. Faizal Eroth

Kerala HC8 Feb 2019RP/145/2019

Case brief

AI extract

What is this about?

The Kerala High Court dismissed a review petition. The court held that a review under Order XLVII Rule 1 CPC is confined to patent errors. Finding no such error in admitting an appeal and disposing it on merits, or in the recording of arguments, the petition was dismissed.

What did the court decide?

The review petition was dismissed.

Venkalath Raveendran, Vs Faizal Eroth — Property and Title | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE K.HARILAL

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THE HONOURABLE MRS. JUSTICE ANNIE JOHN

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FRIDAY ,THE 08TH DAY OF FEBRUARY 2019 / 19TH MAGHA, 1940

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RP.No. 145 of 2019 IN RFA. 116/2018

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AGAINST THE ORDER/JUDGMENT IN RFA 116/2018 of

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HIGH COURT OF KERALA

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REVIEW PETITIONER/S:

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PETITIONERS/RESPONDENT NOS.1 & 2/DEFENDANT NOS.1 & 2

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1 VENKALATH RAVEENDRAN,AGED 82 YEARS S/O. DR. PARAN, VENKALATH HOUSE, KASABA AMSOM AND DESOM, KOZHIKODE TALUK AND DISTRICT 673 001.

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2 DR. VENKALATH PRABHAKARAN, AGED 70 YEARS S/O. DR. PARAN, VENKALATH HOUSE, KASABA AMSOM, AND DESOM, KOZHIKODE TALUK AND DISTRICT 673 001.

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BY ADVS. SRI.P.B.KRISHNAN SRI.MANU VYASAN PETER SRI.P.M.NEELAKANDAN

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RESPONDENTS/APPELLANT NO.1 & RESPONDENT NO.3/PLAINTIFF NOS.1 & 2

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1 FAIZAL EROTH, AGED 47 YEARS S/O. EROTH MOOSA HAJI, 17/1568, CHINTHAVALAPPU FLAT, KASABA AMSOM, KARIKKUNNU DESOM, KOZHIKODE TALUK AND DISTRICT 673 001.

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2 ABDUL RAUF, AGED 42 YEARS S/O. KATHIM, SKYLINE MARINE GATE I.D, NEAR CORPORATION OFFICE, NAGARAM AMSOM AND DESOM, KOZHIKODE TALUK AND DISTRICT 673 001.

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BY ADV. SRI. K.M. FIROZ BY ADV. MEENA.A.

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THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 08.02.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

RP.No. 145 of 2019 2

ORDER

K. HARILAL. J,

This Review Petition is filed against the judgment

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dated 10.12.2018 passed by this Court in R.F.A.No.116 of 2018.

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This Review petition is filed against the judgment dated 10.12.2018, passed by this Court, allowing R.F.A.No.116/2018, by setting aside the order passed by the Court below, rescinding the agreement for sale and rejecting the application seeking time to deposit balance sale consideration. By the order sought to be reviewed, this court granted one month time to the respondents for depositing the balance sale consideration. This Review Petition has been filed after the said one month. The learned counsel for the Review Petitioners admits that the respondents herein have failed to deposit the balance sale consideration, within one month, as directed by this court in the order which is sought to be reviewed. Thus, the order sought to be reviewed has become unenforceable due to the default

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RP.No. 145 of 2019 3

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from the respondents. If that be the present stage,

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prima facie , we find that this Review Petition itself lacks bonafides.

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We have meticulously gone through the various grounds raised in this Review Petition. It is needless to say the scope and extent of consideration in a review petition is strictly confined to the grounds specifically enumerated under Order XLVII Rule 1 of the Code of Civil Procedure. In other words, the scope of review is confined to discovery of new and important matter for evidence which after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made or account of some mistake or error apparent on the face of the record or any other sufficient reason.

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Further, the aforesaid legal position stands well settled by judicial precedents also. The Supreme Court in M/s.Thungabhadra Industries Ltd V. The Government of Andhra Pradesh represented by the

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RP.No. 145 of 2019 4

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Deputy Commissioner of Commercial Taxes,

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Anantapur [AIR 1964 SC 1372] held that ''there is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterised as vitiated by 'error apparent'. ''A review is by no means an appeal in disguise whereby an erroneous decision is re-built and corrected, but lies only for patent error... where without any elaborate argument one could point to the error and say here is a substantial point of law which stares one in the face, and there could reasonably be no two opinions entertained about it, a clear case of error apparent on the face of the record would be made out.''

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In N.I.Caterers (India) Ltd. V. Lt. Governor

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of Delhi (1980 (45) STC 212) the Supreme Court held as follows:-

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“The normal principle is that a judgment

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pronounced by the court is final and departure from

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RP.No. 145 of 2019 5

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that principle is justified only when circumstances of a substantial and compelling character make it necessary to do so. A review proceeding cannot be equated with the original bearing of the case, and the finality of the judgment delivered by the Court will not be reconsidered except where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility.''

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In Rajendra Kumar V. Rambai [AIR 2003

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SC 2095] , the Supreme Court held as follows:-

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“The limitations on exercise of the power of review are well settled. The first and foremost requirement of entertaining a review petition is that the order, review of which is sought, suffers from any error apparent on the face of the order and permitting the order to stand will lead to failure of justice. In the absence of any such error, finality attached to the judgment/order cannot be disturbed.''

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RP.No. 145 of 2019 6

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Similarly in Antony V. Chandni Chits (P) Ltd.,

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[2003 KHC 536], the Supreme Court held as follows:

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''The review is not an opportunity for re-hearing or

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re-examining of the findings rendered by the court

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earlier.''

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Bearing the aforesaid legal position in mind, we have meticulously scrutinised the scope of review in this Revision petition. The main ground raised in the Review Petition is that the appeal against I.A.No.2676/2016 was not maintainable, but this Court allowed composite appeal filed against the order passed in I.A.No.3606/2014 and I.A.No.2676/2016. We find that it

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was not a mistake or error apparent on the face of the record falling under the ground of review. We have admitted the composite appeal and consciously passed the judgment on merits. The admission of an appeal and disposal on merits, even if the Appeal was not maintainable, cannot be taken as an error or mistake falling under the power of review. If such a composite

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appeal was not maintainable, it is for the Review Petitioner to seek appropriate remedy by way of filing appeal before the Supreme Court.

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What is mistake or error apparent on the face of the record? The Supreme Court in Meera Bhanja (Smt.) V. Nirmala Kumari Choudhury (Smt) [1995(1) SCC 170 ] described the mistake or error apparent on the face of the record thus:-''an error apparent on the face of the 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. In other words an error, which has to be established by long-drawn process of reasoning on points where there may conceivably be two opinions can hardly said to be an error apparent on the face of the record.''

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Secondly, it is contended that all the arguments raised by the counsel was not considered. But we find that we have specifically shown and

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RP.No. 145 of 2019 8

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considered all the relevant arguments required for the proper adjudication of the matter in dispute in paragraphs 4 to 6 in pages 8 to 13 of the judgment. The Court is bound to consider relevant arguments on the point for consideration only, in the view point of the Court. Dissatisfaction of the counsel, in accordance with his view point, on the judgment is not a ground to review a judgment.

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Further, the learned counsel for the petitioner contended that the arguments raised by the counsel as regards the Court Fees, did not find a place in the judgment. But at the same time, the learned counsel submits that Review Petitioner has no grievance against the findings on Court Fees. The argument advanced by the learned counsel for the review petitioner is seen stated in paragraph 14 of the judgment. However, the point on court fee has been discussed and decided in paragraph 12 to 15.

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We are of the opinion that it is not incumbent upon the Court to record all the arguments of the Counsel in the judgment and crux of the argument alone need be stated. The absence of entire arguments raised by the counsel, in a judgment is not a ground for review of that judgment. What is intended in this Review is nothing other than re-writing of the Judgment, after a rehearing. We are of the view that none of the grounds would fall under the grounds specifically enumerated under Order XLVII Rule 1 of the Code of Civil Procedure. Hence this Review Petition deserved to be dismissed and we do so.

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The Review Petition is dismissed, accordingly.

Sd/-

K.HARILAL

JUDGE

Sd/-

ANNIE JOHN