Dismissed

Basheer Malikayil v. K.U. Jayaprakash

Kerala HC8 Feb 2023RP/382/2022

Case brief

AI extract

What is this about?

In this review petition, the Kerala High Court rejected the argument that the possibility of a different view justifies review. The Court held that the grounds alleged did not reveal an error apparent on the face of the record and dismissed the petition.

What did the court decide?

The review petition seeking to quash the order dated 10.12.2021 in I.A.No.1 of 2021 in R.F.A.No.241 of 2020 was dismissed.

Basheer Malikayil Vs K.U. Jayaprakash — Civil Procedure and Limitation | Kerala HC (2023)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT

¶2

THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

¶3

¶4

THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR WEDNESDAY, THE 8^TH DAY OF FEBRUARY 2023 / 19TH MAGHA, 1944 R.P. NO. 382 OF 2022

¶5

AGAINST THE ORDER DATED 10.12.2021 IN I.A.NO.1 OF 2021 IN R.F.A.NO.241 OF 2020 OF HIGH COURT OF KERALA REVIEW PETITIONER/RESPONDENT/3RD RESPONDENT:

¶6

BASHEER MALIKAYIL AGED 59 YEARS S/O MALIKAYIL ABDULLAH, KALLINKAL HOUSE, HOSDURG, BEKKAL.P.O, KASARAGODE, KERALA-671318. BY ADV VINOD RAVINDRANATH

¶7

RESPONDENT/PETITIONER/APPELLANT:

¶8

K.U. JAYAPRAKASH,

¶9

AGED 40 YEARS, S/O UKKARAN NAIR, THATHWAMASI HOUSE, KOTTOOR, MULIYAR VILLAGE, KASARGODE, KERALA-671542.

¶10

BY ADVS.

¶11

S.VINOD BHAT ANAGHA LAKSHMY RAMAN GREESHMA CHANDRIKA.R

¶12

THIS REVIEW PETITION HAVING COME UP FOR FINAL HEARING ON 08.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶13

¶14

R.F.A.No.241 of 2020

¶15

ANIL K. NARENDRAN & P.G. AJITHKUMAR, JJ.

¶16

----------------------------------------------------------R.F.A.No.241 of 2020

¶17

----------------------------------------------------------Dated this the 8^th day of February, 2023 O R D E R

¶18

P.G. Ajithkumar, J.

¶19

R.P.No.382 of 2022 in I.A.No.1 of 2021 in R.F.A.No.241 of 2020

¶20

The order dated 10.12.2021 in I.A.No.1 of 2021 in R.F.A.No.241 of 2020 is sought to be reviewed. The respondent in I.A.No.1 of 2021, who is the 3^rd respondent in the appeal has filed this petition for review.

¶21

Heard the learned Senior Counsel appeared on instructions for the petitioner and the learned counsel appearing for the respondent.

¶22

Several points are urged for reviewing the order dated 10.12.2021. The grounds urged are essentially that the view taken in the order dated 10.12.2021 while granting the order of temporary injunction prohibiting the petitioner herein from transferring, alienating or creating any interest in the plaint schedule property or inducting any stranger in future in

¶23

¶24

R.F.A.No.241 of 2020

¶25

the property or building in question, was wrong. It is contended that such a view was taken without considering the possible injury to the petitioner herein, balance of convenience and the comparative utility of the property in question.

¶26

4. In Meera Bhanja v. Nirmala Kumari Choudhury

¶27

[(1995) 1 SCC 170] the Apex Court held that 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 of the Code.

¶28

5. In Parsion Devi v. Sumitri Devi [(1997) 8 SCC

¶29

715] the Apex Court, in the context of the power of review under Order XLVII, Rule 1 of the Code held that, a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. 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 XLVII, Rule 1 of the Code. In exercise of the jurisdiction under Order XLVII, Rule 1 of the Code, it is not

¶30

¶31

R.F.A.No.241 of 2020

¶32

permissible for an erroneous decision to be “reheard and corrected”. A review petition has a limited purpose and cannot be allowed to be “an appeal in disguise”.

¶33

In Lily Thomas v. Union of India [(2000) 6 SCC 224] the Apex Court reiterated that, the power of review can be exercised for correction of a mistake but not to substitute a view. The review cannot be treated like an appeal in disguise. The mere possibility of two views on the subject is not a ground for review.

¶34

In Anantha Reddy N. v. Anshu Kathuria

¶35

[(2013) 15 SCC 534] the Apex Court held that, the review jurisdiction is extremely limited and unless there is mistake apparent on the face of the record, the order/judgment does

¶36

not call for review. The mistake apparent on record means that the mistake is self-evident, needs no search and stares at its face. Surely, review jurisdiction is not an appeal in disguise. The review does not permit rehearing of the matter on merits.

¶37

¶38

R.F.A.No.241 of 2020

¶39

The Apex Court in S.Madhusudhan Reddy v. V.Narayana Reddy and others [2022 SCC OnLine SC 1034 : 2022 (5) KLT SN 18] wherein it was held that on the guise of exercising powers of review, the Court can correct a mistake but not substitute the view taken earlier merely because there is a possibility of taking two views in a matter. A judgment may also be open to review when any new or important matter of evidence has emerged after passing of the judgment, subject to the condition that such evidence was not within the knowledge of the party seeking review or could not be produced by it when the order was made despite undertaking an exercise of due diligence. There is a clear distinction between an erroneous decision as against an error apparent on the face of the record. An erroneous decision can be corrected by the Superior Court, however an error apparent on the face of the record can only be corrected by exercising review jurisdiction.

¶40

The order sought to be reviewed is an order of

¶41

temporary injunction. The said order has to be in force till the

¶42

¶43

R.F.A.No.241 of 2020

¶44

disposal of the appeal. The petitioner preferred S.L.P.(C) No.2394 of 2022 against the said order. However, the said S.L.P. was withdrawn by the petitioner with the permission of the Apex Court. Of course, since special leave was not granted and the matter was not considered on merits, filing of the S.L.P. is not a bar for filing a review petition in the light of the law laid down in Kunhayammed and others v. State of Kerala and another [(2000) 6 SCC 359] . However, the essential grounds urged for a review are that another view than what was taken by this Court while passing the order dated 10.12.2021 was possible. That is not a ground for a review.

¶45

Having gone through the grounds stated in the Review Petition, we do not think that any of the said grounds is sufficient to impel this Court to invoke the review jurisdiction. We therefore hold that the Review Petition does not merit and it is liable only to be dismissed.

¶46

Accordingly, the Review Petition is dismissed.

R.F.A.No.241 of 2020

R.F.A.No.241 of 2020

Call for L.C.R.

List along with connected cases on 09.03.2023.

¶52

Sd/-

¶53

ANIL K. NARENDRAN, JUDGE

¶54

Sd/-

¶55

P.G. AJITHKUMAR, JUDGE

dkr

R.F.A.No.241 of 2020

APPENDIX OF RP 382/2022

¶60

PETITIONER ANNEXURES ANNEXURE A1 TRUE COPY OF THE ORDER DATED 10.12.2021 OF THIS COURT IN I.A.NO.1 OF 2021 IN R.F.A.NO.241 OF 2020. ANNEXURE A2 TRUE COPYOF THE ORDER DATED 11.03.2022 OF HON'BLE SUPREME COURT OF INDIA IN SLP(C)NO.2394/2022.

Basheer Malikayil v. K.U. Jayaprakash

Case brief

What is this about?

What did the court decide?

Basheer Malikayil v. K.U. Jayaprakash

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Parties & counsel

Coram

Case details

Similar cases

Binitha Vs Hareendran

Sivapalan Pillai Vs State of Kerala

Bivin John Vs Minnu Joseph

Remsi.a. Vs Muneer. M

A.L.Varadarajan, Vs State of Kerala

Hari Krishnan Vs S. Padmakumar