Dismissed

Abdulla Kunhi v. T.A. Illyas

Kerala HC6 Sept 2021RP/111/2015

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed a review petition filed by property trespassers challenging a writ judgment that directed police protection for a writ petitioner to recover possession of his property based on a final civil decree. The court held that the petitioners could not re-agitate contentions already raised during the original writ proceedings.

What did the court decide?

Review petition dismissed; writ judgment upholding police protection directions stands unreversed.

Abdulla Kunhi Vs T.A. Illyas — Property and Title | Kerala HC (2021)

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R.P. No. 111/2015

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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MONDAY, THE 6^TH DAY OF SEPTEMBER 2021 / 15TH BHADRA, 1943

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RP NO. 111 OF 2015

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JUDGMENT DATED 01.10.2014 IN WPC 23326/2012 OF HIGH COURT OF KERALA

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REVIEW PETITIONER/RESPONDENTS NOS. 4 & 5:

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1 ABDULLA KUNHI

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S/O.ABDUL RAHIMAN, R/AT VALACHAL, KAKKLAKUNNU, BOMBRANA VILLAGE AND POST, KASARAGOD DISTRICT.

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2 RUKHYA

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W/O.ABDULLA KUNHI, R/AT VALACHAL, KAKKLAKUNNU,BOMBRANA VILLAGE, KASARAGOD DISTRICT.

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BY ADV SRI.KODOTH SREEDHARAN

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RESPONDENTS/PETITIONER/RESPONDENTS 1 TO 3:

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1 T.A. ILLYAS AGED 47 YEARS

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S/O.ABDUL KHADER HAJEE, THURUTHI, KASARAGOD KASBA VILLAGE, KASARAGOD P.O., KASARAGOD DISTRICT, PIN – 671 121.

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2 STATE OF KERALA REPRESENTED BY THE SECRETARY, DEPARTMENT OF HOME, GOVT. SECRETARIAT, THIRUVANANTHAPURAM - 1.

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3 THE SUPERINTENDENT OF POLICE KASARAGOD, VIDYANAGAR POST, KASARAGOD -671 121.

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4 THE STATION HOUSE OFFICER

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KUMBLA POLICE STATION, KUMBLA,KASARAGOD - 671 321.

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5 KAMMADATH (DEAD)

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R.P. No. 111/2015

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W/O.ABDUL RAHIMAN, R/AT VALACHAL, KAKKLAKUNNU,BOMBRANA VILLAGE AND POST, KASARAGOD DISTRICT.

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BY ADVS. SRI.K.I.MAYANKUTTY MATHER SMT.UTHARA ASOKAN

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SRI. V V ASHOKAN (SR) SRI. TEK CHAND. SR. GOVERNMENT PLEADER

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THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 06.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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R.P. No. 111/2015

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Dated this the 6^th day of September, 2021.

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ORDER

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SHAJI P. CHALY, J.

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The Review petition is filed by respondents 4 and 5 in W.P.(C) No. 23326 of 2012 seeking to review the judgment of a Division Bench of this Court in the writ petition dated 1^st October, 2014, whereby it was held that a perusal of the records clearly indicates that the first respondent/writ petitioner had obtained a decree which had become final after 3 stages of litigation by a judgment dated 21.10.2009 of this Court in R.S.A. No. 797 of 2009.

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It was also noted in the judgment tha, the suit was filed in the year 1996 and despite the decree passed and executed, if the defendants again trespassed into the property, the police is bound to interfere in the matter and restore possession of the property to the writ petitioner; that the writ petitioner has obtained a decree of civil court and after delivery of property in execution proceedings, the respondents have trespassed into the said property which is in gross violation of the decree passed, and that persons who do not obey the judgment of the civil court cannot insist that the writ petitioner should

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again be driven to the civil court for recovery of possession of his

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property, and accordingly, the writ petition was allowed and respondents 2 and 3 namely the Superintendent of Police, Kasaragod and the Station House Officer, Kumbla Police Station respectively, were directed to provide adequate police protection to the first respondent/writ petitioner to restore possession of the building in terms of Ext. P4 proceedings in execution, and further directed to ensure maintenance of law and order situation, and if necessary by evicting the Review Petitioners and the 6^th respondent therein by force.

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In the Review Petition, the basic contention advanced by the petitioner is that the judgment is contrary to law, materially irregular and unsustainable in the facts and circumstances of the case, supported by the contention that the civil court decree was obtained

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by playing fraud by the writ petitioner; that their defence before the civil court was ineffective; and that the grant of police protection would deny them the basic principles of natural justice on being heard before the execution court in a proceeding under Order XXI Rules 97 to 103 of the Code of Civil Procedure. It is further contended that only symbolic possession of the property was taken over in the instant case, since some political leaders and social activists interfered when attempting to physically evict the Review Petitioners. It is also contended that the question of possession is a matter to be

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adjudicated by the Execution Court under Section 47 of the CPC, and in the light of the provisions contained under Order XXI Rule 35 and Rules 97 to 100, especially after the 1976 amendment of the Code of Civil Procedure.

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That apart, it is contended that though the suit is one only for recovery of possession without any declaration as to the status of the plaintiffs, that in the absence of a declaration of title of plaintiff, that in the nature of plea raised by the defendants that they are not permissive occupants, and in the absence of other legal heirs of Abdul Rahiman in the party array, none of the courts were called upon to decide the question of title. Other contentions are also raised.

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In fact, the contentions now raised in the Review Petition

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were all matters raised by the Review Petitioners before the writ court, evident from the counter affidavit dated 20^th August, 2013 filed in the writ petition, wherein it was contented that the Review Petitioners were present in the disputed building when they were affecting delivery as per the orders of the Execution Court and obstructed the same, and that the 2nd Review Petitioner along with her husband had informed the officer of the court that the dispute between the writ petitioner and the Review Petitioners were settled and it was agreed that no execution will be carried out, especially since the Review

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Petitioners have no other shelter. That apart, the contentions advanced in the Review Petition based on Order XXI and other provisions of the Code of Civil Procedure were all taken in the counter affidavit. It was also contended that the writ petitioner has no title, right or interest over the property, that the alleged sale deed is a rank forgery and it might have been brought about with a view to dupe and defraud the Review Petitioners, and that in the execution proceedings settlement was arrived at and there was only a paper delivery.

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It was after taking into account the entire materials on record that the judgment was rendered in the writ petition. The provisions of law as well as the principles of law laid down by the Apex Court in its various judgments were also considered as was relied upon in the counter affidavit and thereafter only the directions were issued.

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We have heard the learned counsel for the Review Petitioners Sri. Kodoth Sridharan, learned senior counsel for the first respondent/writ petitioner Sri. V. V. Asokan, and learned, Senior Government pleader Sri. Tek Chand for the State and its officials, and perused the pleadings and materials on record.

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The learned counsel for the Review Petitioners has advanced arguments on the basis of the legal contentions discussed above. It is a well settled principle in law that the writ court does not constitute an

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exception to the general rule and once the judgment is signed or pronounced, it should not be altered. The nature of contentions advanced by the Review Petitioners make it clear that the error apparent on the face of the record, even according to the Review Petitioners, is not something which could be identified as a mistake or error without an in-depth analysis and re- appreciation of the materials on record, and in that scenario, if the entire contentions are to be accepted, this Court would be compelled to reverse the judgment by substituting its own view. Said so, and going by the well settled position in law, we are of the view that a review petition cannot be treated as if it is an appeal, and for re-writing a judgment.

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In fact, the Apex Court in Perry Kansagra v. Smriti

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Madan Kansagra [(2019) 20 SCC 753] has held that the review proceedings are not by way of an appeal, and have to be strictly confined to the scope and ambit of Order XLVII Rule 1 CPC; power of review may be exercised when some mistake or error apparent on the fact of record is found; but error on the face of record must be such an error which must strike one on mere looking at the record and would not require any long-drawn process of reasoning on the points where there may conceivably be two opinions; power of review may not be exercised on the ground that the decision was erroneous on merits;

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and power of review can also be exercised for any sufficient reason which is wide enough to include a misconception of fact or law by a court or even an advocate.

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Going by Order XLVII Rule 1 CPC, a judgment may be open to review inter alia only if there is an error apparent on the face of record. However, an error which is not self evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record, justifying the court to exercise its power of review under Order 47 Rule 1 CPC, as specifically held in Perry Kansagra (supra). It was also held thereunder that in exercise of the jurisdiction conferred under Order XLVII Rule 1 CPC, it is not permissible for an erroneous decision to be reheard and corrected.

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In BCCI v. Netaji Cricket Club [(2005) 4 SCC 741], it is held that it is a well settled position in law that an error which is required to be detected by a process of reasoning can hardly be said to be an error apparent on the face of the record.

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We are also informed that the building in question was demolished by the writ petitioner and later he has filed W.P.(C) No. 13579 of 2021 seeking police protection on the basis of a subsequent cause of action. We are not expressing any opinion on the merits of the said aspect.

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The learned counsel for the Review Petitioners have invited our attention to a decision of this Court in Thomas Danniel @Bose v.

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J. Rajan [2020 KHC 508] in regard to the intricacies of maintaining an application under Order XXI Rule 97 of CPC, wherein it is held that there is no scope for any resistance or obstruction to be adjudicated under Rule 97 of Order XXI. However, as we have pointed out earlier, the issue with respect to the paper delivery and the obstruction created were all considered by the writ court taking into account the documents available on record and the pleadings put forth by the respective parties. Therefore, we are not inclined to accept the contention advanced by the learned counsel for the Review Petitioners on the basis of the judgment in Thomas Danniel (supra). Moreover, the judgment rendered in a subsequent proceedings settling a position of law can never be treated as a circumstance for review of the judgment, especially in view of the explanation to Order XLVII Rule 2 CPC, which clearly specifies that the decision on a question of law on which the judgment of the court is based has been reversed or modified by a subsequent decision of a superior court in any other case, shall not be a ground for the review of the said judgment. Suffice it to say, the Judgment subsequently rendered is that of a learned single Judge of this Court.

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On going through the principles of law laid down by the Apex Court in its various judgments and the parameters provided under Order XLVII CPC for sustaining a review, we are of the considered opinion that the attempt of the Review Petitioners to get the writ petition reheard by raising the very same contentions raised in the counter affidavit filed in the writ petition is unsustainable in law. In this context, the judgment of the Apex Court in Harinagar Sugar

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Mills Ltd. and another v. State of Bihar and others [(2006) 1 SCC

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509], is relevant. Paragraph 12 of the said judgment reads thus:

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“12. With the help of learned counsel for the parties, we have gone through the grounds on which the review had been sought by the appellants of the order dated 30-8-2001. In our opinion, the High Court has rightly rejected the same by observing that the appellants wanted to reargue the points which had been rejected by the High Court by its order dated 30-8-2001 against which the special leave petition, preferred by the appellants, had already been dismissed. Though the review may have been maintainable but the appellants could not be allowed to reagitate the points which had already been decided by the Court. The review could be granted only if there was a mistake apparent on the face of the record. We do not find any such apparent mistake on the face of the record. The High Court in its order dated 30-8-2001 had taken the view that the amount deposited in the Court by the appellants was in lieu of the market fee for the benefit of the Market Committee, and therefore the Market Committee was entitled to receive the same. Two views are possible on this point but the same cannot be a ground for reviewing the said order as it does not fall within the scope of review jurisdiction.”

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On an analysis of the judgment of the writ court, it is

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categoric and clear that the legal principles pointed out by the Review Petitioners were taken into account, and it was on realising that the party respondents have secured a decree which has become final consequent to the judgment in the second appeal, and that in the execution proceedings, delivery was effected, the direction for police protection was issued by the writ Court.

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Above all, the learned counsel for the review petitioners was more interested in addressing arguments assailing the correctness of the execution proceedings in the decree secured by the writ petitioner to contend that the directions issued by the writ court to grant police protection to the writ petitioner cannot be sustained. We are afraid, we cannot entertain any such contention, in view of the fact that the proceedings before the Execution Court were settled or to be settled in the execution proceedings itself. In the context, we have no hesitation to say that, in reality and logically thinking, the review petitioners are estopped from addressing any arguments assailing the correctness of the order passed by the Execution Court in any other proceedings other than a proceeding consequential to the execution proceedings .

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Taking into account the above said aspects and the settled legal principles, we have no doubt in our mind to hold that the Review Petitioners have failed to establish any error apparent on the face of

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record or any other legal infirmities justifying interference of this Court exercising the power of review conferred under law.

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Needless to say, the Review Petition fails and accordingly it is

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dismissed.

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