Happy Maxwell v. Maxwell M. Chennur and Binuraj Antony

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **TUESDAY, THE 13[TH] DAY OF JUNE 2023 / 23RD JYAISHTA, 1945 REVIEW PETITION NO. 592 OF 2023** **AGAINST THE JUDGMENT DATED 25.11.2022 IN MAT.APPEAL NO.447 OF 2014 OF THE HIGH COURT OF KERALA** ## **REVIEW PETITIONER/APPELLANT/RESPONDENT IN ORIGINAL PETITION:** ## **HAPPY MAXWELL** **AGED 49 YEARS, D/O E.K.ANTONY, ELANKUNNAPUZHA HOUSE NAYARAMBALAM VILLAGE, NAYARAMBALAM P.O ERNAKULAM HISTRICT, PIN – 682509.** **BY HAPPY MAXWELL(Party-In-Person)** ## **RESPONDENTS/RESPONDENTS/PETITIONER IN ORIGINAL PETITION:** - **1 MAXWELL.M.CHENNUR, AGED 60 YEARS, S/O MICHAEL.J.CHENNUR, CHENNUR HOUSE, VYDYARUPADI STOP, PALLIPURAM P.O., ERNAKULAM DISTRICT, PIN – 682509.** - **2 BINURAJ ANTONY, S/O ANTONY, RESIDING AT ALAPPAT HOUSE, CHURCH AVENUE ROAD, NORTH PARAVUR, PARAVUR VILLAGE, PARAVUR TALUK ERNAKULAM DISTRICT, PIN – 683513. BY ADV R.LEELA** **THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 09.06.2023, THE COURT ON 13.06.2023 DELIVERED THE FOLLOWING:** 2 Review Petition No.592 of 2023 in Mat.Appeal No.447 of 2014 ## **O R D E R** ## P.G. Ajithkumar, J. The appellant in Mat.Appeal No.447 of 2014 is the petitioner. She filed this Review Petition invoking the provisions of Section 114 of the Code of Civil Procedure, 1908. 2. The petitioner filed Mat.Appeal No.447 of 2014 assailing the judgment and decree in O.P.No.1968 of 2009 of the Family Court, Ernakulam. The appeal was allowed as per the judgment dated 25.11.2022 and O.P.No.1968 of 2009 was remanded to the Family Court for fresh disposal. That judgment is sought to be reviewed. 3. Heard the petitioner, who appeared in person and Advocate R.Leela, the learned counsel appearing for the 1st respondent. 4. The petitioner wants to review the judgment dated 25.11.2022 as regards the observation/direction in paragraph No.18 of the judgment that “the witness already examined shall be recalled for the purpose of further chief examination and cross examination, if any." The petitioner would contend that the Family Court acting upon the aforesaid direction in 3 Review Petition No.592 of 2023 in Mat.Appeal No.447 of 2014 the judgment dated 25.11.2022, particularly, "if any" allowed I.A.No.7 of 2023 filed by the 1[st] respondent and issued summons to the Doctors, who issued Exts.X1 to X3 medical record/certificate. In the view of the petitioner, examination of those witnesses would invade upon her privacy, which is not permissible. The petitioner would contend that summoning of the Doctors became possible on account of the aforesaid direction in paragraph No.18 of the judgment dated 25.11.2022, which stands as an error and it requires review. 5. After the remand O.P.No.1968 of 2009 was transferred to the Family Court, North Paravur on its commencement, where it was numbered as O.P.No.1 of 2023. As per the order in I.A.No.7 of 2023 in O..P.No.1968 of 2009 witnesses were summoned. Against that order, the petitioner filed O.P.(FC) No.132 of 2023. That Original Petition was dismissed by this Court as per the judgment dated 22.05.2023. The petitioner filed O.P.(FC) No.132 of 2023 raising contentions similar to those in this petition. This Court after considering the contention of the petitioner that examination of the Doctors would amount to infringement of 4 Review Petition No.592 of 2023 in Mat.Appeal No.447 of 2014 her right to privacy, in the light of the law laid down by the Apex Court in **Justice K.S Puttaswamy (Retired) and another v Union of India and others [(2017) 10 SCC 1** ] dismissed that Original Petition. This Court further directed the Family Court, North Paravur to dispose of O.P.No.1 of 2023 within a period of three months. 6. One of the grounds of appeal in Mat.Appeal No.447 of 2014 filed by the petitioner was that the Family Court received the medical evidence, Exts.X1 to X3; without any basis. The petitioner wanted to set aside the judgment dated 26.10.2013 in O.P.No.1968 of 2009 (presently O.P.No.1 of 2023 before the Family Court, North Paravur) since that judgment was rendered without hearing her and considering her evidence. Accepting that contention the decree in O.P.No.1968 of 2009 was set aside and the matter was remanded for fresh consideration. The learned counsel for the 1[st] respondent, Advocate R.Leela, would point out that once a matter is remanded for fresh trial, both parties will have the right and opportunity to adduce further evidence. Apart from that, in order to afford a further opportunity to the petitioner 5 Review Petition No.592 of 2023 in Mat.Appeal No.447 of 2014 to challenge the evidence already let in by the opposite party and also to adduce further evidence, if any, on her side, such a direction was given. In that fact situation, how can the petitioner contend that such a direction/observation is an error apparent on the face of the record? 7. 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. ## 8. 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 that 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 the exercise of the jurisdiction under Order XLVII, Rule 1 of the 6 Review Petition No.592 of 2023 in Mat.Appeal No.447 of 2014 Code, it is not 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”. 9. 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 as an appeal in disguise. The mere possibility of two views on the subject is not a ground for review. 10. 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 a 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 the rehearing of the matter on merits. 7 Review Petition No.592 of 2023 in Mat.Appeal No.447 of 2014 11. The Apex Court in **S.Madhusudhan Reddy v. V.Narayana Reddy and others [2022 SCC OnLine SC 1034 : 2022 (5) KLT SN 18]** held that the Court’s jurisdiction of review is not the same as that of an appeal. A judgment can be open to review if there is a mistake or an error apparent on the face of the record, but an error that has to be detected by a process of reasoning, cannot be described as an error apparent on the face of the record for the Court to exercise its powers of review under Order XLVII Rule 1 of the Code. 12. From the proposition of law laid down in the aforesaid decisions, it is clear that one cannot apply for review by asking the court to substitute a view taken in the judgment. An error that is apparent on the face of the record alone can be a ground for review. The ground for review urged by the petitioner that examination of the doctors will infringe her privacy is one set forth newly when her challenge to the order in I.A.No.7 of 2023 in O.P.No.1 of 2023 failed. Such a plea was never raised in the appeal. The contentions in the petition do not establish that there is an apparent error in 8 Review Petition No.592 of 2023 in Mat.Appeal No.447 of 2014 the judgment dated 25.11.2022. In such circumstances, we are of the view that the review petition is bereft of any merit and it is only liable to be dismissed. Accordingly, this Review Petition is dismissed. **Sd/-** **ANIL K. NARENDRAN, JUDGE** **Sd/-** **P.G. AJITHKUMAR, JUDGE** dkr 9 Review Petition No.592 of 2023 in Mat.Appeal No.447 of 2014 ## **APPENDIX OF RP 592/2023** ## **PETITIONER ANNEXURES** |**Annexure**|**1**|**TRUE COPY OF THE ORDER DATED**| |---|---|---| |||**23/02/2023 IN IA 7/2023 IN OP NO.**| |||**1/2023 PASSED BY THE HONBLE FAMILY**| |||**COURT NORTH PARAVUR.**| |**Annexure**|**2**|**TRUE COPY OF THE JUDGEMENT DATED**| |||**22/05/2023 IN OP(FC) 132 OF 2023**| |**Annexure**|**3**|**TRUE COPY OF THE DATED 03/12/2021 IN**| |||**WPC NO. 102933/2021 OF HONBLE HIGH**| |||**COURT OF KARNATAKA, DHARWAD BENCH.**|