Alex John v. Sheena Alex and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K. BABU** **WEDNESDAY, THE 9[TH] DAY OF AUGUST 2023 / 18TH SRAVANA, 1945** **RP NO. 632 OF 2023** **AGAINST THE ORDER/JUDGMENT OP(Crl.) 149/2021 OF HIGH COURT OF** **KERALA** ## **PETITIONER:** **ALEX JOHN AGED 44 YEARS S/O. JOHN, POOTHUPALLIL COTTAGE, PADINJATTUM MURI, NIRANAM P.O., THIRUVALLA, PATHANAMTHITTA DISTRICT., PIN - 689621 BY ADVS. P.HARIDAS BIJU HARIHARAN SHIJIMOL M.MATHEW P.C.SHIJIN RISHIKESH HARIDAS RAJASREE T.R. ROSHIN MARIAM JACOB** ## **RESPONDENTS:** **1 SHEENA ALEX AGED 39 YEARS W/O. ALEX JOHN, SHIJU BHAVAN, NIRANAM, POOTHUPALLIL COTTAGE, PADINJATTUM MURI, NIRANAM P.O., THIRUVALLA., PIN - 689621 2 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031** ## **BY ADV RINNY STEPHEN CHAMAPARAMPIL** **SMT.PUSHPALATHA PP** **THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 09.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** RP NO. 632 OF 2023 2 ## **K.BABU, J** . -------------------------------------- ## R.P.No.632 of 2023 --------------------------------------Dated this the 9[th] day of August, 2023 ## **J U D G M E N T** The review petition is filed for reviewing the judgment dated 20.09.2021 in O.P.(Crl) No.149/2021. The matter relates to a proceedings initiated before the Judicial First Class Magistrate Court, Thiruvalla under the relevent provisions of the Protection of Women From Domestic Violence Act, 2005 [for short the DV Act.]. 2. The learned Magistrate passed Ext.P2 order in M.C.No.173/2015, allowing respondent No.1/ the petitioner to realize Rs.26,500/-(Rupees Twenty Six Thousand Five Hundred only) as maintenance allowance to the children and also directed to provide alternate accommodation or to pay an amount of Rs.10,000/- (Rupees Ten Thousand only) per month on or before 5[th] of every month. Ext.P2 order was challenged in Crl.A.No.21/2022 before the Sessions Court, Pathanamthitta. Along with the appeal, the review petitioner filed Crl.M.P.No.1314/2020 under Section 389 (1) of Cr.P.C. seeking to suspend Ext.P2 order passed by the learned Magistrate. RP NO. 632 OF 2023 3 The Sessions Judge, after admitting the appeal, suspended the Order on condition that the review petitioner shall deposit Rs.26,500/- before the Trial Court within a period of 15 days . 3. Respondent No.1 challenged the order of the Sessions Court in this Original Petition. This Court, in view of the willingness shown by the review petitioner to deposit Rs.30,000/- and further that he had no objection in withdrawing the amount, modified the order of the Sessions Court directing the review petitioner to pay Rs.30,000/- per month from 22.02.2020 to the 1[st] respondent subject to the final result of the appeal. 4. Heard both sides. 5. The learned Counsel for the review petitioner contented that this Court had not considered the challenges raised by the review petitioner while passing the impugned order. The relevant portion of the judgment sought to be reviewed reads thus; 7. Though counsel for the petitioner and respondent raised rival contentions with regard to the quantum of maintenance awarded and the income of the parties, a statutory appeal is pending before the Sessions Court challenging the order of the Magistrate in MC 173/2015. Hence this Court is not making any comment or observation with regard to the amount fixed or the RP NO. 632 OF 2023 4 income of parties. Needless to say that suspension of the order in M.C by the Sessions Court on a condition of deposit of Rs 26,500/alone would result in miscarriage of justice. The impugned order would also show that at the time of moving the petition for stay, it is reported that appellant /respondent herein is ready and willing to deposit Rs.30,000/- and he has no objection in withdrawing the amount by the petitioner herein. So the direction ought to have been to pay deposit Rs.30,000/- since Rs.10,000/- was also ordered to be accommodation by the learned Magistrate. 8. Annexure-P3 order would also show that the Sessions Court further made a direction to release the Appellant on bail on executing bond for Rs.20,000/-, though that has been subsequently corrected by passing Ext.P5 order by deleting that portion. Hence, it appears that the Sessions Judge has passed the impugned order without proper application of mind. 9. In the result. Ext.P3 Order passed by the Sessions Court is modified directing the second respondent to pay/deposit Rs.30,000/- per month starting from 22.02.2020 to the petitioner on or before 5 of every month subject to the final result of the appeal. The learned counsel for the 2[nd] respondent at the time of argument submitted that if at all this Court is making any direction with regard to the payment of arrears, sufficient time should be given to make the payment. Taking into account the pandemic crisis being faced by the people in general, 2[nd] respondent is permitted to pay/ deposit arrears of Rs.1,00,000/(one lakh only), within a period of one month starting from this date and to make the balance payment /deposit in two consecutive monthly instalments and further to pay future monthly amount as and when it falls due. 6. On the scope of review under Section 114 and Order XLVII Rule 1 of the Code of Civil Procedure, a Division Bench of this Court in **Vijaya Kumar and Others v. Travencore** RP NO. 632 OF 2023 5 ## **Devaswom Board [ 2022 (6) KHC 407 ]** held thus; 9. A review under Section 114 and Order 47 Rule 1 of the Code of Civil Procedure will be maintainable only in the following circumstances: (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. 10. **In Sow Chandra Kante v. Sheikh Habib [(1975) 1 SCC** **674]** , on the scope of review of judgment, the Apex Court held thus: “A review of a judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility.... The present stage is not a virgin ground but review of an earlier order which has the normal feature of finality.” 11. In **Meera Bhanja v. Nirmala Kumari Choudhury** **[(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 47 Rule 1 of the Code of Civil Procedure. 12. In **Chhajju Ram v. Neki (AIR 1922 PC 112)** , which was approved by the Apex Court in **Moran Mar Basselios Catholicos and another v. Most Rev. Mar Poulose Athanasius and others** **[(1955) 1 SCR 520]** the Privy Council held that the words “any other sufficient reason” appearing in Order 47 Rule 1 of the Code of Civil Procedure must mean “a reason sufficient on grounds at least analogous to those specified in the rule”. 13. **In Moran Mar Basselios Catholicos** (supra), the Apex Court held that error apparent on the face of the proceedings is an error which is based on clear ignorance or disregard of the provisions of law. 14. In **T.C. Basappa v. T. Nagappa [(1955) 1 SCR 250]** the Apex Court held that such error is an error which is a patent RP NO. 632 OF 2023 6 error and not a mere wrong decision. 15. In **Hari Vishnu Kamath v. Syed Ahmad Ishaque (AIR 1955 SC 233)** it was held that it is essential that it should be something more than a mere error; it must be one which must be manifest on the face of the record. 16. In **Kerala State Electricity Board v. Hitech Electrothermics and Hydropower Ltd., and others [(2005) 6 SCC 651],** the Apex Court on the review of judgment held thus: “10........In a review petition it is not open to this Court to reappreciate the evidence and reach a different conclusion, even if that is possible. Learned Counsel for the Board at best sought to impress us that the correspondence exchanged between the parties did not support the conclusion reached by this Court. We are afraid such a submission cannot be permitted to be advanced in a review petition. The appreciation of evidence on record is fully within the domain of the appellate court. If on appreciation of the evidence produced, the court records a finding of fact and reaches a conclusion, that conclusion cannot be assailed in a review petition unless it is shown that there is an error apparent on the face of the record or for some reason akin thereto. It has not been contended before us that there is any error apparent on the face of the record. To permit the review Petitioner to argue on a question of appreciation of evidence would amount to converting a review petition into an appeal in disguise.” 17. Under the garb of filing a review petition, a party cannot be permitted to repeat old and overruled arguments for reopening the conclusions arrived at in a judgment. The power of review is not to be confused with the appellate power, which enables the Superior Court to correct errors committed by a subordinate Court (Vide: **Jain Studios Ltd. v. Shin Satellite Public Co.Ltd [(2006) 5 SCC 501].** 18. In **S. Madhusudhan Reddy v. V. Narayana Reddy and Others** (MANU/SC/1013/2022), the Apex Court narrated the situations in which review will not be maintainable, which read RP NO. 632 OF 2023 7 thus: “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 re-heard 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.” ## 19. In **Patel Narshi Thakershi and others v. Shri. Pradyuman** **Singhji Arjunsinghji [(1971) 3 SCC 844]** the Apex Court held thus: “4..... It is well settled that the power to review is not an inherent power. It must be conferred by law either specifically or by necessary implication. No provision in the Act was brought to notice from which it could be gathered that the Government had power to review its own order. If the Government had no power to review its own order, it is obvious that its delegate could not have reviewed its order.......” 7. The review petitioner failed to place on record any of the requirements that warrant review of the impugned judgement. Therefore the review petition lacks merits. Another grievance of the review petitioner is that the Sessions Court is not taking up the appeal even after RP NO. 632 OF 2023 **==> picture [9 x 9] intentionally omitted <==** repeated requests. The learned Counsel for respondent No.1 submitted that a connected appeal preferred by the 1[st] respondent is also pending before the Sessions Court as Criminal Appeal No.23/2020. Therefore, the Sessions Court, Pathanamthitta is directed to dispose of Criminal Appeal Nos. 21/2020 and 23/2020 within a period of three months from the date of production of this judgment. Therefore the Review Petition is disposed as above. Sd/- **K.BABU, JUDGE** saap RP NO. 632 OF 2023 9 ## **APPENDIX OF RP 632/2023** ## **PETITIONER ANNEXURES** ## **Annexure1** **TRUE COPY OF THE APPLICATION BY THE PETITIONER UNDER RTI ACT ON 21.07.2022 AND THE REPLY ISSUED BY THE HEADMISTRESS OF ST. MARY'S H.S.S., NIRANAM TO THE PETITIONER DATED 03.08.2022.** ## **Annexure2** **TRUE COPY OF THE MEMO SUBMITTED BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, THIRUVALLA ADHERING THE PAYMENT OF ARREARS OF MAINTENANCE BY THE PETITIONER DATED 15.01.2022.** //True copy//PA to Judge