N. Musthafa vs Kappithoora Chandran and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **MONDAY, THE 24[TH] DAY OF JANUARY 2022 / 4TH MAGHA, 1943** **RP NO. 142 OF 2017** **JUDGMENT IN WPC 836/2010 OF HIGH COURT OF KERALA** ## **REVIEW PETITIONER/S:** N.MUSTHAFA AGED 51 YEARS AGED 51 YEARS, S/O. ABOOBACKER HAJI, BUSINESS, NINKILARI HOUSE, PANNIYANNUR AMSOM,CHAMBAD DESOM, THALASSERY TALUK. BY ADV SRI.T.M.ABDUL LATHEEF ## **RESPONDENT/S:** 1 KAPPITHOORA CHANDRAN S/O. GOVINDAN NAIR, DRIVER, 'GOVINDAN',PANNIYANNUR AMSOM, CHAMBAD DESOM, THALASSERY TALUK 670101. 2 KAPPITHOORA HARIDASAN S/O. GOVINDAN NAIR, CLERK, 'SREEDEVIKA',PANNIYANNUR AMSOM, CHAMBAD DESOM,THALASSERY TALUK 670101. 3 KAPPITHOORA AJITHA D/O. GOVINDAN NAIR, VIKRAM CHALI HOUSE,KODIYERI AMSOM, DESOM,THALASSERY TALUK 670101. BY ADV G SREEKUMAR (CHELUR) (BY ORDER) **THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 29.09.2021, THE COURT ON 24.01.2022, DELIVERED THE FOLLOWING:** R.P.No.142 of 2016 -2- ## **ORDER** Dated this the 24[th] day of January, 2022 Review petitioner was the plaintiff in O.S.No.39 of 2008 filed before the Sub Court, Thalassery. The suit was filed for specific performance of agreements for sale entered into between the petitioner and the respondents. The dispute was settled during trial and a petition filed under Order XXIII Rule 3 CPC, praying for a decree in terms of the compromise. The suit was decreed accordingly. As per the terms of the compromise, petitioner agreed to purchase the plaint schedule properties for a price different from what was mentioned in the sale agreements. The price thus fixed was agreed to be paid within 3½ months, failing which the petitioner had the right to receive back the advance amount to be paid without interest. The time stipulated as per the compromise expired on 26.02.2009. The ## R.P.No.142 of 2016 -3- petitioner paid an amount of Rs.2,45,000/towards sale consideration on 27.02.2009 and also purchased stamp paper worth Rs.34,300/-. Thereafter, the petitioner filed an application under Section 28(3)(a) of the Specific Relief Act for a direction to the defendants to execute the sale deed. He also filed another application seeking permission to deposit the balance sale consideration before court. The trial court allowed the petitions. The respondents challenged those orders before this Court in W.P.(C) No.836 of 2010. The writ petition was allowed and the impugned orders set aside by judgment dated 18.03.2011. Even though petitioner preferred special leave petition before the Honourable Supreme Court, that was dismissed by order dated 03.01.2012. Aggrieved, the petitioner preferred a review petition, which was also dismissed by order dated 27.03.2012. This review petition is filed thereafter, contending that the judgment of ## R.P.No.142 of 2016 -4- this Court is vitiated by an apparent error and the special leave petitions having been dismissed without considering the contentions on merits, there is no bar in reviewing the judgment. 2. Heard Adv.T.M.Abdul Latiff for the petitioner and Adv.G.Sreekumar (Chelur) for the respondents. 3. Learned Counsel for the petitioner relied on the decision in _**Khoday Distilleries**_ _**Limited and others v. Sri.Mahadeshwara Sahakara**_ ## _**Sakkare Karkhane Limited, Kollegal [2019(4) SCC**_ _**376]**_ to contend that dismissal of the special leave petition and review petition by the Supreme Court does not fetter this Court's review jurisdiction. On merits, it is contended that this Court committed a manifest error in allowing the writ petition by interfering with the extension of time for execution of the sale deed granted by the trial court. On the factual aspect, it is pointed out that the petitioner had ## R.P.No.142 of 2016 -5- paid an amount of Rs.2,45,000/- on the next day of expiry of the time stipulated and the third respondent having accepted the amount, the trial court was fully justified in holding that the time limit could be extended. On the legal aspect, the contention is that as per Section 28 of the Specif Relief Act, the decree remains executable in spite of expiry of the period for deposit. 4. Learned Counsel for the respondents contended that the review petition is not maintainable as the special leave petition and review petition against that order were dismissed. Reference is made to the order passed in the review petition to contend that the petition was dismissed on merits. The further contention is that the petitioner is seeking a reconsideration of the writ petition on merits, which is beyond the scope of review. 5. The question whether a review petition ## R.P.No.142 of 2016 -6- could be entertained by the High court after dismissal of the special leave petition by the Supreme Court was elaborately considered in _**Kunhayammed v. State of Kerala [(2000)6 SCC 359].**_ Therein, it was held that the doctrine of merger is neither a doctrine of constitutional law nor a doctrine statutorily recognized, but is only a common law doctrine founded on principles of propriety in the hierarchy of justice delivery system. The Apex Court held that, where a special leave petition is dismissed by a non-speaking order, it would not deprive the aggrieved person's statutory right of seeking relief in review jurisdiction of High Court. In _**Khoday**_ _**Distilleries Limited** (supra),_ the position was further clarified by holding that, whether an order refusing special leave to appeal is a speaking order or a non-speaking one, it does not attract the doctrine of merger, since such an order does not stand substituted in the place of ## R.P.No.142 of 2016 -7- the order under challenge. Here, the special leave petition was dismissed by a non-speaking order, and in the order dismissing the review petition, it is stated that the review is dismissed on merits. Even then, going by the principle laid down in _**Khoday Distilleries**_ _**Limited**_ , the doctrine of merger will not apply and the instant review petition is maintainable. 6. Having held so, I find merit in the contention of the respondent that the attempt through the review petition is to have a rehearing of the writ petition. It is settled law that the review court cannot sit in appeal of its own judgment and rehear the matter. As held by the Apex Court in _**Thungabhadra Industries Ltd v. The Government of Andhra Pradesh [AIR 1964 SC**_ _**1372]**_ even if a finding is wrong, it would not follow that it is an error apparent on the face of the record, for there is a distinction between a mere erroneous decision and a decision which ## R.P.No.142 of 2016 -8- could be characterized as vitiated by 'error apparent'. 7. Having heard the learned Counsel at length and having carefully scrutinized the judgment, I am unable to find any error apparent on the face of the judgment, warranting exercise of the review jurisdiction. The learned Judge has carefully analyzed all factual circumstances before arriving at the conclusion that, trial court could not have extended the time for deposit. Being so, this Court cannot come to a different conclusion, that too by exercising review jurisdiction. In the result, the review petition is dismissed. Sd/- **V.G.ARUN JUDGE** Scl/