B. Sainu v. Dr. B. Sunil and B. Shamsunahar

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** ## **&** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **TUESDAY, THE 12TH DAY OF FEBRUARY 2019 / 23RD MAGHA, 1940** ## **RP.No. 73 of 2019 IN FAO. 27/2018** **AGAINST THE JUDGMENT DATED 06.12.2018 IN FAO 27/2018 of HIGHCOURT** ## **REVIEW PETITIONER/ RESPONDENT/ PETITIONER/ PLAINTIFF :** **B.SAINU, AGED 45 YEARS, ADVOCATE, D/O. LATE DR. M.K. BASHEER, 28/27738, SOUTH PONNETH TEMPLE ROAD, CHILAVANNOOR, KADAVANTHRA, ERNAKULAM DISTRICT 682 020.** **BY B.SAINU(PARTY IN PERSON)** **RESPONDENTS/ APPELLANTS/ COUNTER PETITIONERS/ - DEFENDANTS :** **1 DR.B.SUNIL, AGED 47 YEARS, S/O. LATE DR. M.K. BASHEER, T.C. 3/ 993, 'MALARVADY', PARUTHYPARA, MUTTADA P.O., THIRUVANANTHAPURAM - 695 025.** **2 B. SHAMSUNAHAR, AGED 66 YEARS, W/O. LATE DR. M.K. BASHEER, T.C. 3/993, MALARVADY, PARUTHYPARA, MUTTADA P.O., THIRUVANANTHAPURAM - 695 025.** **THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 12.02.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING :** **RP.No. 73 of 2019 IN FAO. 27/2018** 2 ## **ORDER** ## **K.Harilal. J.** The review petitioner is the respondent in FAO.No.27 of 2018 of this Court and the said appeal was filed by the respondents herein challenging the order passed in IA.No.1870/2017in OS.No.107/2017, by the Addl. Sub Court, Thiruvananthapuram. This review petition is filed against the judgment dated 06.12.2018 passed by this Court in the aforesaid FAO. 2. Heard the learned review petitioner and the learned counsel for the respondent. 3. The sum and substance of the arguments advanced by the review petitioner is that the entire findings in the judgment dated 06.12.2018 passed by this Court in FAO.No.27/2018 are absolutely wrong as **RP.No. 73 of 2019 IN FAO. 27/2018** 3 the same are opposed to materials on record. 4. We have meticulously read the grounds Exts.A to G in the memorandum of review petition and we find that the review petitioner has assailed almost all findings in the judgment. 5. The scope and extent of interference with review petitions are strictly confined to the grounds specifically enumerated under order 47 Rule 1 of the CPC. The review petition has to be entertained only on the grounds enumerated under Order 47 Rule 1 of the CPC. 6. 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 Deputy Commissioner of Commercial Taxes, Anantapur [AIR 1964 SC 1372]**_ held that “ _there is a distinction which is real, though it might not always be capable_ **RP.No. 73 of 2019 IN FAO. 27/2018** 4 _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.”_ 7. In _**N.I.Caterers (India) Ltd. v. Lt. Governor of Delhi (1980 (45) STC 212)**_ the Supreme Court held as follows :- _“The normal principle is that a judgment pronounced by the court is final and departure from 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_ 5 ## **RP.No. 73 of 2019 IN FAO. 27/2018** _reconsidered except where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility.”_ ## 8. In _**Rajendra Kumar v. Rambai [AIR**_ ## _**2003 SC 2095]**_ , the Supreme Court held as follows : _“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.”_ ## _9_ . Similarly in _**Antony v. Chandni Chits (P)**_ _**Ltd. [2003 KHC 536]** ,_ the Supreme court held as follows: _“The review is not an opportunity for re-hearing or re-examining of the findings rendered by the court earlier”._ **RP.No. 73 of 2019 IN FAO. 27/2018** 6 10. The learned counsel advanced arguments contending that the entire findings are absolutely wrong and thereby it would fall under the expression 'error apparent on the face of the record'. We reject the said argument in view of the decision of the Supreme Court in **Meera Bhanja (Smt.) v. Nirmala Kumari Choudhury (Smt.) [1995 (1) SCC 170]** wherein the Supreme Court held that “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. **RP.No. 73 of 2019 IN FAO. 27/2018** 7 11. We have tested the grounds raised in the memorandum of review petition with the grounds enumerated under Order 47 Rule 1 and the proposition laid down by the Supreme Court in the aforesaid decisions. We find that all the grounds are raised on the same point that the findings of this Court are absolutely wrong and those wrong findings are based on erroneous appreciation of fact and materials on record. In the light of the aforesaid decisions, it can never be treated as error apparent on the face of the record. We further find that this review petition is filed seeking an opportunity to re-consider the findings in the judgment, after a re-hearing. That apart, we find that almost all arguments advanced by the party in person before this Court were raised by the learned Senior counsel appearing for the review petitioner before the court at the time of hearing the appeal also, and got rejected. ## **RP.No. 73 of 2019 IN FAO. 27/2018** 8 Hence, we find that the review petition is not maintainable and it is dismissed accordingly. Sd/- **K.HARILAL, JUDGE** Sd/- **ANNIE JOHN, JUDGE** RKM ## **RP.No. 73 of 2019 IN FAO. 27/2018** 9 ## **APPENDIX** ## **PETITIONER'S EXHIBITS :** **ANNEXURE A1 COPY OF CONTEMPT CASE C NO. 867/2018 FILED BY THE REVIEW PETITIONER BEFORE THIS HON'BLE COURT.** - **ANNEXURE A2 COPY OF I.A. NO. 627/2017 IN OS. NO. 563/2010 FILED BY THE 1ST APPELLANT BEFORE SUB COURT, THIRUVANANTHAPURAM.** - **ANNEXURE A3 COPY OF IMP LEADING PETITION FILED BY 1ST APPELLANT AS I.A. NO. 1391/2017 IN O.S. NO. 563/2010 DATED 20.5.2017 BEFORE SUB COURT, THIRUVANANTHAPURAM.** - **ANNEXURE A4 COPY OF THE OBJECTION AGAINST STATEMENT OF ACCOUNTS FILED BY THE REVIEW PETITIONER, BEFORE SUB COURT, THIRUVANANTHAPURAM IN O.S. NO. 107/2017.** - **ANNEXURE A5 COPY OF THE CAVEAT PETITION FILED BY THE 1ST APPELLANT BEFORE SUB COURT, THIRUVANANTHAPURAM** - **ANNEXURE A6 COPY OF THE CAVEAT PETITION FILED BY THE REVIEW PETITIONER BEFORE THE SUB COURT, THIRUVANANTHAPURAM.** **ANNEXURE A7 COPY OF THE LIST OF DOCUMENTS FILED BY THE REVIEW PETITIONER IN O.S. NO. 107/2017 BEFORE THE SUB COURT, THIRUVANANTHAPURAM. ANNEXURE A8 COPY OF THE NOTICE DATED 1/9/2018 SENT BY SUNDARAM BNP PARIBS TO THE REVIEW PETITIONER.**