High Court of KeralaDivision Bench2023-02-08Dismissed

Basheer Malikayil v. K.U. Jayaprakash

Case / Petition Number:RP 382/2022 in I.A. 1/2021 in R.F.A. No. 241 of 2020

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Anil K. Narendran
P. G. Ajithkumar
Judgment Date: 2023-02-08
Court Decision / Holding: The Review Petition is dismissed. The court held that none of the grounds raised warranted interference under Order XLVII, Rule 1 CPC, reaffirming the limited scope of review and distinguishing it from a rehearing on merits. The injunction order remains subject to disposal of the appeal, and LC R is directed. The SLP(C) No. 2394 of 2022 was withdrawn.
Final Disposition: Dismissed

Parties to the Case

Appellants / Petitioners

Basheer Malikayil

Respondents

K.U. Jayaprakash

Legal Representation & Advocates

Counsels for Petitioners

• Vinod Ravindranath

Counsels for Respondents

• S. Vinod Bhat
• Anagha Lakshmy Raman
• Greeshma Chandrika. R

Case Synopsis & Summary

This is a Kerala High Court review petition (RP 382 of 2022) arising from an appeal in R.F.A. No. 241 of 2020. The petition, filed by Basheer Malikayil (the 3rd respondent in the appeal), challenges the order dated 10 December 2021 passed in I.A. No. 1 of 2021 in R.F.A. No. 241 of 2020, which granted a temporary injunction restraining him from transferring, alienating or creating any interest in the plaint schedule property and from inducting any stranger. The respondent/applicant in the review, Jayaprakash, contends that the injunction was misapplied and that consideration of injury, balance of convenience, and the property’s utility warranted a different view. The court anchors its analysis in well-known Supreme Court jurisprudence: Meera Bhanja, Parsion Devi, Lily Thomas, Anantha Reddy, and S. Madhusudhan Reddy, to emphasize the restricted, non-merit-based nature of review under Order XLVII, Rule 1 CPC. It reiterates that review cannot function as an appeal, nor permit rehearing on merits; only errors apparent on the record or new material may justify review, and even then narrowly. The court ultimately holds that none of the grounds suffices to invoke review and dismisses the petition. The matter is directed for LC R and notes SLP withdrawal in 2022. Appendix references annexures.

Provisions of Law Cited

Order XLVII, Rule 1 of the Code of Civil Procedure (CPC)

Legal Doctrines & Maxims

Review is extremely limited and not an appeal; cannot substitute a view
Error apparent on the face of the record as a criterion for review
Review can correct mistakes but cannot rehear merits; two views alone are not ground for review
Distinction between erroneous decision and error apparent on the face of the record
New or important evidence not available earlier may justify review in exceptional cases

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that the order dated 10.12.2021 granting a temporary injunction was wrong in law, ignoring potential injury to the petitioner, as well as the balance of convenience and utility of the property. He invokes established limits on review under Order XLVII, Rule 1 CPC, arguing that review is not an appeal and may be allowed only for a mistake apparent on the face of the record or for new evidence not available earlier. Citing Meera Bhanja, Parsion Devi, Lily Thomas, Anantha Reddy, and S. Madhusudhan Reddy, he contends that the order may be corrected only if a genuine error exists and that substitution of the court’s view is impermissible. He further relies on Kunhayammed’s principle to show that withdrawal of SLP does not preclude review. He asserts none of these grounds justifies interference and prays for dismissal of the review petition.” ,

Contentions of Respondents

The respondents submit that the injunction order was properly issued to preserve status quo pending appeal and there is no error apparent on the face of the record. They argue that review cannot function as an appeal on merits and that the grounds raised are attempts to reargue the merits rather than show a legally cognizable error. They rely on established jurisprudence that a review petition should be entertained only for correction of a mistake apparent on the record or for new, material evidence, not for substituting a different view where two legitimate views could exist. The petition, in their view, fails to meet the stringent criteria of Order XLVII, Rule 1 CPC, and the SLP withdrawal does not alter the need to dismiss the petition.”},

Cited Precedents (6)

Case Name	Citation	Treatment	Explanation
Meera Bhanja v. Nirmala Kumari Choudhury	(1995) 1 SCC 170	Positive	Apex Court held that review is not an appeal and must be confined to Order XLVII, Rule 1 CPC.
Parsion Devi v. Sumitri Devi	(1997) 8 SCC 715	Positive	Judgment may be reviewed only for mistake or apparent error on record; not a rehearing on merits.
Lily Thomas v. Union of India	(2000) 6 SCC 224	Positive	Review can correct a mistake but cannot substitute a view; two views do not justify review.
Anantha Reddy N. v. Anshu Kathuria	(2013) 15 SCC 534	Positive	Review jurisdiction is extremely limited and requires an error apparent on the face of the record.
S. Madhusudhan Reddy v. V. Narayana Reddy and others	2022 SCC OnLine SC 1034	Positive	Affirms distinction between erroneous decision and error apparent; new evidence can be considered in particular circumstances.
Kunhayammed v. State of Kerala	(2000) 6 SCC 359	Positive	On withdrawal of SLP, review can still be entertained; clarifies that review is distinct from filing SLP.

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Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** # **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR WEDNESDAY, THE 8[TH] DAY OF FEBRUARY 2023 / 19TH MAGHA, 1944 R.P. NO. 382 OF 2022** **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:** **BASHEER MALIKAYIL AGED 59 YEARS S/O MALIKAYIL ABDULLAH, KALLINKAL HOUSE, HOSDURG, BEKKAL.P.O, KASARAGODE, KERALA-671318.** **BY ADV VINOD RAVINDRANATH** ## **RESPONDENT/PETITIONER/APPELLANT:** **K.U. JAYAPRAKASH, AGED 40 YEARS, S/O UKKARAN NAIR, THATHWAMASI HOUSE, KOTTOOR, MULIYAR VILLAGE, KASARGODE, KERALA-671542.** **BY ADVS.** **S.VINOD BHAT ANAGHA LAKSHMY RAMAN GREESHMA CHANDRIKA.R** **THIS REVIEW PETITION HAVING COME UP FOR FINAL HEARING ON 08.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 R.F.A.No.241 of 2020 ## **ANIL K. NARENDRAN & P.G. AJITHKUMAR, JJ.** **-----------------------------------------------------------** ## **R.F.A.No.241 of 2020** **----------------------------------------------------------Dated this the 8[th] day of February, 2023 O R D E R** ## P.G. Ajithkumar, J. R.P.No.382 of 2022 in I.A.No.1 of 2021 in R.F.A.No.241 of 2020 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. 2. Heard the learned Senior Counsel appeared on instructions for the petitioner and the learned counsel appearing for the respondent. 3. 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 3 ## R.F.A.No.241 of 2020 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. 4. 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 XLVII, Rule 1 of the Code. 5. In **Parsion Devi v. Sumitri Devi [(1997) 8 SCC 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 4 R.F.A.No.241 of 2020 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”. 6. 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. 7. In **Anantha Reddy N. v. Anshu Kathuria [(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 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. 5 R.F.A.No.241 of 2020 8. 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. 9. The order sought to be reviewed is an order of temporary injunction. The said order has to be in force till the 6 ## R.F.A.No.241 of 2020 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. 10. 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. Accordingly, the Review Petition is dismissed. 7 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. **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** **Sd/-** **P.G. AJITHKUMAR, JUDGE** dkr 8 R.F.A.No.241 of 2020 ## **APPENDIX OF RP 382/2022** **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.**