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High Court of KeralaDivision BenchReview petition dismissed; directions to CJM va...

Gijo George Varghese and Simi v. Mary Varghese and Mary Varghese (Mini)

Case / Petition Number:RP.No.66 of 2013 (Q) IN OP(Crl.)1448/2012

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • S.S. Satheesachandran
  • M. Sasidharan Nambiar
Judgment Date
2013-03-08
Court Decision / Holding
The review petition is dismissed with the exception that the directive to take back M.C.129/2010 and dispose of it along with M.C.132/2010 is vacated. The court clarifies that Ext.P5 cannot be treated as a Lok Adalat award in the manner claimed, and it modifies the earlier directive while otherwise dismissing the grounds raised in the petition.
Final Disposition
Review petition dismissed; directions to CJM vacated regarding consolidation of MC129/2010 with MC132/2010; Ext.P5’s status as a Lok Adalat award not to be treated as an award in review.

Parties to the Case

Appellants / Petitioners

  • Gijo George Varghese
  • Simi

Respondents

  • Mary Varghese
  • Mary Varghese (Mini) W/o Shaju Peter

Legal Representation & Advocates

Counsels for Petitioners

  • • Sri N.N. Sugunapalan (Sr.)
  • • Sri C.A. Sadasivan

Counsels for Respondents

  • • Sri M.B. Sandeep
  • • Smt. R. Priya

Case Synopsis & Summary

This is a Kerala High Court review petition (RP No.66/2013) challenging a judgment in OP(Crl.)1448/2012 dated 12 November 2012. The petitioners, Gijo George Varghese and his wife Simi, contend the original order was grounded on incorrect facts relating to the status of criminal miscellaneous petitions M.C.129/2010 and M.C.132/2010 before the Chief Judicial Magistrate, Thodupuzha. The court had directed that M.C.129/2010 be taken back to file and disposed of along with M.C.132/2010, presuming MC-132/2010 remained pending. The petitioners argue that MC-132/2010 had been withdrawn or closed, and that linking the two proceedings was erroneous. Ext.P5, referred to as an award, was argued to be a Lok Adalat award; petitioners assert it cannot be treated as a formal award. The respondents’ position is reflected in the record, and the court emphasizes the narrow scope of review, citing Parsion Devi v. Sumitri Devi to reinforce that review is not a rehearing but a limited remedy. After hearing, the court vacates the directive to consolidate MC129/2010 with MC132/2010, noting the prior misstatement, while holding that Ext.P5’s status as an award cannot be corrected in review. The petition is otherwise dismissed.

Legal Doctrines & Maxims

  • There is a clear distinction between an erroneous decision and an error apparent on the face of the record; the latter can be corrected by review, while the former is correctable by a higher forum (Parsion Devi v. Sumitri Devi, 1997)
  • A review petition has a limited purpose and cannot be treated as an appeal in disguise; it is not a rehearing of the case (Parsion Devi)
  • Review jurisdiction is limited and cannot substitute for a de novo hearing; Ext.P5 cannot be treated as a Lok Adalat award beyond its evidentiary use

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contend that the review is sought on grounds of incorrect facts in the original judgment, particularly the assumption that M.C.132/2010 remained pending before the CJM, which prompted a direction to take back M.C.129/2010 for disposal along with M.C.132/2010. They assert that MC-132/2010 had been closed/withdrawn and that linking the two matters was erroneous. They challenge Ext.P5, claimed as a Lok Adalat award, arguing it cannot be treated as a formal award. They rely on Thomas v. Thomas Job to argue for review of the court’s findings, and invoke Parsion Devi to emphasize the limited scope of review and the need to correct errors not to rehear the merits. They request correction of the judgment’s record and a re-evaluation of the related MC proceedings based on accurate pendency information.

Contentions of Respondents

The respondents’ position is supported by the record showing that MC-132/2010 was ultimately closed, and the direction to process MC-129/2010 with MC-132/2010 is questioned as being based on improper facts. They maintain that Ext.P5 was not an award and should not dictate the handling of MCs in review. They concede certain factual aspects during proceedings, with no substantial challenge to the core findings. The respondents argue for limited intervention in the review, consistent with the principle that review is not a rehearing of the case.

Cited Precedents (2)

Case NameCitationTreatmentExplanation
Thomas v. Thomas Job(2005) 3 KLT 1042 (SC)Mentioned OnlyCited by petitioners; court states the finding cannot be assailed and does not rely on it to sustain the judgment.
Parsion Devi and others v. Sumitri Devi and others(1997) 8 SCC 715PositiveUsed to articulate the principle that review has a limited scope and is not an appeal, guiding the court’s approach to the petition.

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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 S.S.SATHEESACHANDRAN** # **FRIDAY, THE 8TH DAY OF MARCH 2013/17TH PHALGUNA 1934** **RP.No. 66 of 2013 (Q) IN OP(Crl.).1448/2012** **--------------------------------------------AGAINST THE JUDGMENT IN OP(Crl.).1448/2012 of HIGH COURT OF KERALA DATED 12-11-2012** **REVIEW PETITIONER(S)/RESPONDENT :** **-------------------------------------------------------** **1. GIJO GEORGE VARGHESE, S/O.VARGHESE, POOVATHUNKAL HOUSE, THODUPUZHA-685584.** **2. SIMI, W/O.GIJO GEORGE VARGHESE, POOVATHUNKAL HOUSE THODUPUZHA-685584.** **BY ADVS.SRI.N.N.SUGUNAPALAN (SR.) SRI.C.A.SADASIVAN** **RESPONDENT(S)/PETITIONERS :** **1. MARY VARGHESE** - **W/O.LATE VARGHESE, POOVATHUNKAL HOUSE THODUPUZHA-685584.** **2. MARY VARGHESE (MINI) W/O.SHAJU PETER, PADINJAREKATTU HOUSE, THODUPUZHA 685584** **R BY ADV. SRI.M.B.SANDEEP R BY ADV. SMT.R.PRIYA** **THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 08-03-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **BP** ## **RP.No. 66 of 2013 (Q)** ## **APPENDIX** ## **PETITIONER'S ANNEXURES :** **ANNEXURE 1: COPY OF THE ORDER DT 17/11/2011 IN M.C.NO.129/2010 OF THE CHIEF JUDICIAL MAGISTRATE, THODUPUZHA.** **ANNEXURE 2: COPY OF THE ORDER DT 27/4/2012 IN M.C. NO. 132/2010 OF THE CHIEF JUDICIAL MAGISTRATE, THODUPUZHA.** **ANNEXURE 3: COPY OF THE EXECUTION PETITION NO. 41/2012 FILED BY THE PETITIONER BEFORE THE MUNSIFF'S COURT THODUPUZHA DT 03/072012.** ## **RESPONDENT'S ANNEXURES :** ## **NIL.** ## **//TRUE COPY//** ## **P.A. TO JUDGE** ## **BP** ## **S.S.SATHEESACHANDRAN,J.** ================================ R.P.66/2013 in O.P.(Crl.) No.1448/2012 ================================ Dated this the 8th day of March,2013 ## ORDER The above petition has been filed to review the judgment dated 12.11.2012 in the aforesaid O.P setting forth a case that such judgment was passed on incorrect facts. There is error apparent on the face of the judgment is the case of review petitioners, who are the respondents in the above O.P, stating that this court has wrongly proceeded on the assumption that M.C 132/2010 continued to be retained and pending on the file of Chief Judicial Magistrate Court and on that basis passed orders to take back to file the connected M.C 129/2010 with direction for disposal of both R.P.No.66/2013 in O.P.(Crl.)1448/2012 2 Crl.MCs. In view of Ext.P5 award passed M.C 129/2010 was withdrawn by the petitioners therein, and, later, M.C 132/2010 was also closed by petitioners thereof, and so much so the direction issued to the Chief Judicial Magistrate to take back M.C 129/2010 and to dispose it with M.C.132/2010 has to be reviewed, according to petitioners. Similarly Ext.P5 produced in the O.P., which was held to be not an award in the judgment rendered by this court, has to be treated and accepted as a 'conditional award' which is capable of being executed, is the further case of petitioners for review of the judgment disposing the O.P. 2. I heard the counsel on both sides. 3. Learned senior counsel for the petitioners fairly conceded that in the counter affidavit filed in the O.P by first respondent, first review petitioner herein, nothing was stated about the closing of M.C 132/2010. Directions issued in the judgment rendered in the O.P for disposal of ## R.P.No.66/2013 in O.P.(Crl.)1448/2012 3 both the above mentioned MCs were made only after ascertaining from the counsel who appeared for both sides over the pendancy of M.C 132/2010 on the file of Chief Judicial Magistrate, is asserted by the learned counsel appearing for the respondents in the present review petition, and that is not controverted or disputed by review petitioners. Order for closing of MC 132/2010 which was filed by second among the review petitioners as petitioner was made only on 27.4.2012, the date on which the OP was filed before this court i.e. five months after M.C 129/2010 was closed or withdrawn is also not disputed. Both parties when the O.P was argued failed to present a true picture over M.C 132/2010, whether it was retained on the file of Chief Judicial Magistrate’s Court or already disposed, infact, had prompted this court to query whether it was retained on the file of court. In the judgment rendered in the O.P statements recorded over the retention of M.C 132/2010 on the file of Chief Judicial Magistrate’s Court were ## R.P.No.66/2013 in O.P.(Crl.)1448/2012 4 made only after ascertaining from the counsel on both sides whether it continued to be pending, and, then, represented to be so. So much so an incorrect statement over the pendancy of that case was made in the judgment which was primarily, due to the fault of review petitioners also cannot be set forth as a ground for reviewing the judgment. However, the directions issued by this court to take back MC 129/2010 and to try that case along with MC 132/2010 on the assumption that the case was pending, which was not so, with further direction for disposal of both MCs, have to be modified and corrected. ## 4. Learned senior counsel for review petitioners relying on **Thomas v. Thomas Job (2005** **(3) KLT 1042 (SC)** urged for review of the finding made by this court over Ext.P5 passed by the Lok Adalat stating that it could be treated as a 'conditional award'. I have already stated in the judgment why Ext.P5 cannot be treated as an award passed by the Lok Adalat. That finding is not R.P.No.66/2013 in O.P.(Crl.)1448/2012 5 assailable by review even assuming it is wrong or based on erroneous reasoning. Review has limited scope and it cannot be used as a disguise for rehearing of the case. The Apex Court in **Parsion** ## **Devi and others v. Sumitri Devi and others (1997) 8** **SCC 715)** has held:- “There is a clear distinction between an erroneous decision and an error apparent on the face of the record. While the first can be corrected by the higher forum, the latter only can be corrected by exercise of the review jurisdiction. A review petition has a limited purpose and cannot be allowed to be “an appeal in disguise”. So much so I find no merit in the ground raised for review of judgment holding that Ext.P5 is not an award. Direction issued to the Chief Judicial Magistrate to take back M.C.129/2010 and to dispose it along with M.C.132/2010 on the premise the R.P.No.66/2013 in O.P.(Crl.)1448/2012 6 latter M.C was pending on his file shall stand vacated. Communicate the above order to the learned Chief Judicial Magistrate forthwith. Except the vacating of the direction in the judgment as indicated above, review petition fails in all other respects, and it is dismissed. S.S.SATHEESACHANDRAN JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------W.P.(C).NO. /06 --------------------- JUDGMENT tpl/- M.SASIDHARAN NAMBIAR, J. --------------------W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006