Chembukandy Saffiya v. C. Abdul Aziz and others (RP No. 869 of 2022 in RFA No. 40 of 2012)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **THURSDAY, THE 13[TH] DAY OF OCTOBER 2022 / 21ST ASWINA, 1944** **RP NO. 869 OF 2022 IN RFA 40/2012** **AGAINST THE JUDGMENT DTD 5/7/2022 IN RFA 40/2012 OF HIGH COURT OF** ## **KERALA** ## **REVIEW PETITIONER/1ST RESPONDENT:** **CHEMBUKANDY SAFFIYA AGED 56 YEARS D/O. C. VEERAN, CHEMBUMKANDY HOUSE, KAITHAVALAPPU OPP. NEW EVEREST LODGE, PANNIYANKARA AMSOM DESOM, P.O. KALLAI, KOZHIKODE DISTRICT, PIN 673 003.** **BY ADVS.T.KRISHNANUNNI (SR.) V.NAMITHA** ## **RESPONDENTS/APPELLANTS AND RESPONDENTS 2,** **4 TO 7 IN RFA 40/2012:** **1 C.ABDUL AZIZ S/O C. ABU, AGED 61 YEARS, SUHARA MANZIL, KAITHAVALAPPU, OPP. NEW EVAREST LODGE, PANNIYANKARA AMSOM, DESOM, PO KALLI, KOZHIKODE - 3. 2 C. ABDUL LATHEEF, AGED 53 YEARS S/O C.ABDU, SUHARA MANZIL, KAITHAVALAPPU, OPP.NEW EVAREST LODGE, PANNIYANKARA AMSOM, DESOM, PO KALLI, KOZHIKODE - 3.** **3 C. MUMTHAZ, AGED 52 YEARS D/O C. ABDU, SUHARA MANZIL, KAITHAVALAPPU, OPP. NEW EVAREST LODGE, PANNIYANKARA AMSOM, DESOM,** 2 ## **R.P.No.869 of 2022 in R.F.A.No.40 of 2012** ||**PO KALLI, KOZHIKODE - 3.**| |---|---| |**4**|**C. THAHIRA, AGED 48 YEARS**| ||**D/O C. ABDU, SUHARA MANZIL,**| ||**KAITHAVALAPPU, OPP.NEW EVAREST LODGE,**| ||**PANNIYANKARA AMSOM, DESOM,**| ||**PO KALLI, KOZHIKODE - 3.**| |**5**|**T.K. FATHIMA,**| ||**AGED 61 YEARS**| ||**W/O BEERAN KOYA,**| ||**NEELO BHAVAN,**| ||**THIRUVANNOOR ROAD,**| ||**PANNIYANKARA AMSOM, DESOM,**| ||**VENGALI, ELATHUR P.O,**| ||**KOZHIKODE, PIN - 673 303.**| ||**(SHOWN IN THE IMPUGNED JUDGMENT**| ||**AND DECREE AS FATHIMA @ KUNEEVI WRONGLY).**| |**6**|**C. BABU,**| ||**AGED 51 YEARS**| ||**S/O BEERAN KOYA,**| ||**NEELO BHAVAN,**| ||**THIRUVANNOOR ROAD,**| ||**PANNIYANKARA AMSOM,**| ||**DESOM, VENGALI, ELATHUR P.O,**| ||**KOZHIKODE, PIN - 673 303.**| ||**NOW RESIDING AT VINODINI NIVAS,**| ||**ELATHUR AMSOM, DESOM, VENGALI,**| ||**ELATHUR PO, KOZHIKODE.**| ||**(SHOWN IN THE IMPUGNED JUDGMENT**| ||**AND DECREE AS C.BAKKAR BABU WRONGLY).**| |**7**|**C. SAIRA,**| ||**AGED 47 YEARS**| ||**D/O C BEERAN KOYA,**| ||**NEELO BHAVAN,**| ||**THIRUVANNOOR ROAD,**| ||**PANNIYANKARA AMSOM,**| ||**KOZHIKODE, (NOW RESIDING AT**| ||**VINODINI NIVAS, ELATHUR AMSOM,**| ||**DESOM, VENGALI, ELATHUR PO,**| ||**KOZHIKODE, PIN-673303)**| ||**(SHOWN IN THE IMPUGNED JUDGMENT**| ||**AND DECREE AS SHAHAR BANU WRONGLY).**| 3 ## **R.P.No.869 of 2022 in R.F.A.No.40 of 2012** |**8**|**C. NILOFER @ C. NEELOFFER,**| |---|---| ||**AGED 44 YEARS,D/O C. BEERANKOYA,**| ||**THIRUVANNOOR ROAD,**| ||**PANNIYANKARA AMSOM, DESOM,**| ||**KOZHIKODE, (NOW RESIDING AT**| ||**VINODINI NIVAS, ELATHUR AMSOM,**| ||**DESOM, VENGALI, ELATHUR PO,**| ||**KOZHIKODE, PIN - 673 303).**| |**9**|**C. NAJITH MUHAMMED,**| ||**AGED 40 YEARS**| ||**S/O C BEERAN KOYA,**| ||**THIRUVANNOOR ROAD,**| ||**PANNIYANKARA AMSOM, DESOM,**| ||**KOZHIKODE, (NOW RESIDING AT**| ||**VINODINI NIVAS, ELATHUR AMSOM,**| ||**DESOM, VENGALI, ELATHUR PO,**| ||**KOZHIKODE, PIN - 673 303.)**| ||**(WRONGLY SHOWN AS C.NAJEED IN THE**| ||**IMPUGNED DECREE AND JUDGMENT).**| |**10**|**HASEENA,**| ||**AGED 51 YEARS**| ||**W/O ABDUL MAJEED,**| ||**SUHARA MANZIL, KITHAVALAPPU,**| ||**OPP.NEW EVEREST LODGE,**| ||**PANNIYANKARA AMSOM DESOM,**| ||**P.O. KALLAI, KOZHIKODE DISTRICT,**| ||**PIN 673 003.**| |**11**|**SHAMSUDDEEN C.**| ||**AGED 35 YEARS**| ||**S/O ABDUL MAJEED,SUHARA MANZIL,**| ||**KAITHAVALAPPU,**| ||**OPP.NEW EVEREST LODGE,**| ||**PANNIYANKARA AMSOM DESOM,**| ||**P.O. KALLAI, KOZHIKODE DISTRICT,**| ||**PIN 673 003.**| |**12**|**SHAMRIN @ SHEMRIN,**| ||**AGED 31 YEARS**| ||**D/O ABDUL MAJEED,**| ||**SUHARA MANZIL,**| ||**KAITHAVALAPPU, OPP.NEW EVEREST LODGE,**| ||**PANNIYANKARA AMSOM DESOM,**| ||**P.O. KALLAI, KOZHIKODE DISTRICT,**| ||**PIN 673 003.**| 4 ## **R.P.No.869 of 2022 in R.F.A.No.40 of 2012** **13 ASHA SHAFEENA, AGED 33 YEARS D/O ABDUL MAJEED AND W/O FIROS ELEYEDATH, SUHARA MANZIL, KAITHAVALAPPU, OPP.NEW EVEREST LODGE, PANNIYANKARA AMSOM DESOM, P.O. KALLAI, KOZHIKODE DISTRICT, PIN 673 003. (NOW PERMANENTLY RESIDING WITH HER HUSBAND AT ELAYODATH HOUSE, PALAPPETTA, PO PANNIPPARA, MALAPPURAM - 676 541.** **14 CHEMBUKANDY SHAMSUDDIN @ ABDUL SALEEM, S/O C VEERAN, CHEMBUMKANDY HOUSE, KAITHAVALAPPU OPP. NEW EVEREST LODGE, PANNIYANKARA AMSOM DESOM, P.O. KALLAI, KOZHIKODE DISTRICT, PIN 673 003.** - **15 SUHARABI, D/O C. VEERAN, JAMSHEENA MANZIL, VELLATHUMPADAM, CHERUVANNUR AMSOM DESOM, PO. NALLALAM, KOZHIKODE 673 003.** **16 IMBICHI PATHUMMABI, D/O C. ABU, (AGED NOT KNOWN) YEARS, KAMBI STORE HOUSE, CHAKKIRIKADE PARAMBA NADUVATTOM AMSOM, DESOM, ARAKINAR P.O, KOZHIKODE - 673 003.** - **17 KHADEEJA,** **W/O LATE C. MOIDEEN KOYA,** **(AGED NOT KNOWN) JAMSHEENA MANZIL, VELATHUMPADAM, CHERUVANNUR AMSOM, DESOM, PO NALLALAM, KOZHIKODE - 673 027.** - **18 JAMSHEENA,** **D/O LATE C. MOIDEEN KOYA,** **(AGED NOT KNOWN) JAMSHEENA MANZIL, VELATHUMPADAM, CHERUVANNUR AMSOM, DESOM,** 5 ## **R.P.No.869 of 2022 in R.F.A.No.40 of 2012** **PO NALLALAM, KOZHIKODE - 673 027.** **THIS REVIEW PETITION HAVING COME UP FOR FINAL HEARING ON 13.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 6 ## **R.P.No.869 of 2022 in R.F.A.No.40 of 2012** ## **P.B.SURESH KUMAR & C.S.SUDHA, JJ.** **---------------------------------------------------------------R.P.No.869 of 2022 in R.F.A.No.40 of 2012 --------------------------------------------------------Dated this the 13[th] day of October, 2022** ## **O R D E R** ## **C.S.Sudha, J.** This application for review under Order XLVII Rule 1 CPC has been filed by the first respondent in R.F.A.No.40/2012. The appellants and respondents 2 to 7 in the appeal are the respondents herein. 2. According to the petitioner, the impugned judgment dated 05/07/2022 by which the aforesaid appeal has been disposed of, is vitiated by errors of law and facts apparent on the face of it and the same is liable to be reviewed and the appeal to be re-heard on merits. Specific reference was made to the discussion in paragraphs 41 to 43 of the judgment wherein this Court held that by the execution of Ext.B1 release deed by the petitioner herein along with her children, they have clearly indicated that they have ratified or accepted Ext.P2 partition deed and hence relying on the decisions of the Apex Court referred to in paragraph 42, held that the petitioner herein and her children are estopped from questioning the validity of Ext.B2 partition deed. According to the learned Senior counsel for the petitioner, as this Court has substantially erred in holding that the principle of estoppel is 7 ## **R.P.No.869 of 2022 in R.F.A.No.40 of 2012** applicable so far as minors are concerned and as Ext.B2 partition deed is void _ab initio_ , there could not have been a ratification of the same and hence the finding to the contrary is wrong/incorrect. 3. Heard Adv.T.Krishnanunni, the learned counsel for the review petitioner and Adv.K.M.Firoz, the learned counsel for the respondents. 4. We briefly refer to the scope of review under Order XLVII CPC. The Apex Court in the case of **Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius** , **AIR 1954 SC 526** , while interpreting Order 47, Rule 1 of the Code of Civil Procedure (CPC), observed that a review can be allowed on three specified grounds, namely, (i) discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicant's knowledge or could not be produced by him at the time when the decree was passed, (ii) mistake or error apparent on the face of the record, and (iii) for any other sufficient reason. While interpreting the third ground, the Court further held that the words "any other sufficient reason" must mean "a reason sufficient on grounds, at least analogous to those specified in the rule". 4.1. In **Lily Thomas, etc. v. Union of India, 2000 (3) Supreme 601 : (AIR 2000 SC 1650)** , the Apex Court held that the power of review can be exercised for correction of mistake and not to substitute a view. Such powers can be exercised within the limits of the Statute and a review cannot 8 ## **R.P.No.869 of 2022 in R.F.A.No.40 of 2012** be treated as an appeal in disguise. ## 4.2. In **Parsion Devi v. Sumitri Devi, 1998 (2) Civil LJ 723 (SC)** , the Apex Court held that the power of review can be exercised when there is "a mistake or an error apparent on the face of the record". The aforesaid words mean "an error or mistake which is self-evident", but re-hearing of the matter for detecting an error is beyond the scope of review. ## 4.3. In **Aribam Tuleshwar Sharma v. Aribam Pishak Sharma,** **AIR 1979 SC 1047** , it has been held that the power of review inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a Court of Appeal. A power of review is not to be confused with appellate power which may enable an Appellate Court to correct all manner of errors committed by the 9 ## **R.P.No.869 of 2022 in R.F.A.No.40 of 2012** Subordinate Court. An error apparent 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 points where there may conceivably be two opinions. 5. Therefore, an error which has to be established by a long-drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. This Court on the basis of the facts and evidence let in, arrived at a conclusion that by execution of Ext.P1 release deed by the petitioner along with her children who had long attained majority, was a clear indication of the fact that they had accepted Ext.B2 partition deed. Applying the aforesaid principles to the case on hand, we do not find any error or mistake apparent on the face of the record warranting a review of the judgment. The review petition is found to be without any merits and hence dismissed. Interlocutory applications, if any pending, shall stand closed. Sd/- **P.B.SURESH KUMAR JUDGE** Sd/- **C.S.SUDHA** **JUDGE** ami/