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## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **FRIDAY, THE 7TH DAY OF MAY 2021/17TH VAISAKHA, 1943** **RP.No.262 OF 2021 IN AS. 484/1998** **AGAINST THE JUDGMENT DATED 16-11-2018 IN AS 484/1998 OF HIGH COURT OF KERALA** ## **REVIEW PETITIONERS/APPELANTS 2 TO 7 :** - **1 THRESIAKUTTY MATHEW, W/O. LATE MATHEW, RESIDING AT VALLIYOTTIL, MANGALAM AMSOM, ALATHUR TALUK, PALAKKAD DISTRICT.** - **2 SEBASTIAN MATHEW @ JOY, S/O. LATE MATHEW, RESIDING AT VALLIYOTTIL, MANGALAM AMSOM, ALATHUR TALUK, PALAKKAD DISTRICT.** - **3 BENNY MATHEW, S/O. LATE MATHEW, RESIDING AT VALLIYOTTIL, MANGALAM AMSOM, ALATHUR TALUK, PALAKKAD DISTRICT.** - **4 MARY PAUL, D/O. LATE MATHEW, RESIDING AT VALLIYOTTIL, MANGALAM AMSOM, ALATHUR TALUK, PALAKKAD DISTRICT.** - **5 SIGI SAJI, D/O. LATE MATHEW, RESIDING AT VALLIYOTTIL, MANGALAM AMSOM, ALATHUR TALUK, PALAKKAD DISTRICT.** - **6 JOMON MATHEW, S/O. LATE MATHEW, RESIDING AT VALLIYOTTIL, MANGALAM AMSOM, ALATHUR TALUK, PALAKKAD DISTRICT. BY ADVS.SRI.P.R.VENKATESH.** ## **RESPONDENTS/RESPONDENTS :** - **1 ELIKUTTY, W/O. ULAHANNAN, RESIDING AT THANICHUVATTIL, KUTHATTUKULAM VILLAGE AND DESOM, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT-686661.** - **2 SIMMY, S/O. ELIKUTTY, RESIDING AT THANICHUVATTIL, KUTHATTUKULAM VILLAGE AND DESOM, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT-686661.** R.P.No.262 of 2021 in 2 A.S.No.484 of 1998 **3 SHONE, S/O. ELIKUTTY, RESIDING AT THANICHUVATTIL, KUTHATTUKULAM VILLAGE AND DESOM, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT-686661.** **4 JOMON,** **S/O. ELIKUTTY, RESIDING AT THANICHUVATTIL, KUTHATTUKULAM VILLAGE AND DESOM, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT-686661.** **BY ADV.SRI.ABRAHAM VAKKANAL (SENIOR ADVOCATE)** **THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 22-03-2021, THE COURT ON 07-05-2021 PASSED THE FOLLOWING:** R.P.No.262 of 2021 in A.S.No.484 of 1998 3 ## **A.HARIPRASAD, J** **-----------------------------R.P NO.262 OF 2021 IN A.S NO.484 OF 1998 -------------------------------Dated this the 7[th] day of May, 2021** Review petitioners are the appellants 2 to 7 in A.S.No.484 of 1998, disposed by this Court as per judgment dated 16.11.2018. The suit was one for specific performance of Ext.A3 contract dated 18.09.1993 executed between the plaintiff and the 1[st] defendant for herself and on behalf of her children (defendants 2 to 4) who were minors at that time. Above suit was tried by the court below along with O.S.No.164 of 1994. That was a suit for prohibitory injunction simplicitor filed by the defendants in O.S.No.166 of 1994 against the original plaintiff/appellant. In the injunction suit, the averments were that the defendant therein tried to trespass upon the property involved in Ext.A3 contract and to reduce the property into his possession. After jointly trying the above suits, the trial court found that the original appellant (plaintiff) was not entitled to get a relief of specific performance of Ext.A3 contract and therefore the suit was dismissed. Consequently, O.S.No.164 of 1994 filed by the respondents was decreed. Aggrieved by the decree in O.S.No.164 of 1994 the original appellant preferred an appeal before the District Court. That court dismissed the appeal _in limine_ at the stage of admission itself under Order XLI Rule 11 of the Code of Civil Procedure, 1908 (in short, “the Code”). Learned District Judge observed 4 R.P.No.262 of 2021 in A.S.No.484 of 1998 that the trial Judge was fully justified in decreeing O.S.No.164 of 1994. Learned District Judge further observed that the judgment and decree in O.S.No.164 of 1994 would not operate as _res judicata_ in respect of O.S.No.166 of 1994 because there was no issue regarding right of the appellant to get a decree for specific performance of Ext.A3 contract. With the above observations, the appeal was dismissed by the District Court _in limine_ . Finer questions relating to Section 11 and Order II Rule 2 of the Code arose in the appeal for consideration. 2. Ext.A3 is a disputed document. Plaintiff in the above suit contended that himself and the 1[st] defendant entered into a contract for sale of plaint schedule property on 18.09.1993. Admittedly, the properties scheduled to the plaint belonged to the 1[st] defendant and her deceased husband. It is the assertion in the plaint that the 1[st] defendant herself and on behalf of her minor children executed Ext.A3. Price agreed to between the parties was `62,000/- per acre and an amount of `1,00,000/- was paid by the plaintiff to the 1[st] defendant as advance sale consideration. Balance sale consideration was to be paid after measurement of the property. In spite of repeated demands the 1[st] defendant was not ready to discharge her obligations under Ext.A3. 3. Defendants opposed the plaint claim contending that the plaintiff had earlier filed a suit for prohibitory injunction as O.S.No.37 of 1994 and it was dismissed on 24.08.1994. Plaint schedule property admittedly belonged to 1[st] defendant and her minor children. This fact was known to the plaintiff at the time of entering into Ext.A3 contract. No permission under the Guardians and Wards Act, 1890 was obtained by either of the parties from the District Court concerned. R.P.No.262 of 2021 in 5 A.S.No.484 of 1998 Ext.A3 was not beneficial to the minor's interest. According to the defendants, Ext.A3 is legally unenforceable and it is bad for misrepresentation, threat, fraud and coercion. 4. Trial court dismissed O.S.No.166 of 1994. It did not even order return of advance amount to the plaintiff. In the appeal, this Court, on reappreciation of the entire evidence, held that the review petitioners (plaintiffs) are not entitled to get a decree for specific performance of Ext.A3 contract. Appeal was dismissed finding no merit. However, as conceded by the learned senior counsel on behalf of the contesting respondents that they are prepared to return the advance money with 9% interest per annum from the date of Ext.A3 till the date of judgment of this Court, such a relief was granted to the review petitioners. 5. It is also brought to notice that the review petitioners unsuccessfully made an attempt to challenge the judgment and decree passed by this Court in A.S.No.484 of 1998 before the apex Court. However, the Supreme Court dismissed the Special Leave Petition. 6. Questions relating to the applicability of Order II Rule 2 of the Code to the pleas raised by the review petitioners, as appellants, were considered _in extenso_ by this Court in paragraphs 9 to 23. In the course of discussion, this Court has considered not only the statutory provisions but also the _ratio decidendi_ in **Gurbux Singh v. Bhooralal (AIR 1964 SC 1810), Virgo Industries (Eng.) Private Limited v. Venturetech Solutions Private Limited ((2013) 1 SCC 625), Sasidharan Nair v. Kunju Mohammed Unni (2017 (3) KLT 751)** and R.P.No.262 of 2021 in 6 A.S.No.484 of 1998 ## **Rathnavathi v. Kavita Ganashamdas ((2015) 5 SCC 223)** . 7. Learned counsel submitted notes of arguments on behalf of the review petitioners and respondents. After hearing the learned counsel for review petitioners and the learned senior counsel for contesting respondents and on perusal of notes of arguments, coupled with the relevant decisions cited, I am of the view that the review is not maintainable for the following reasons. 8. According to the learned counsel for the review petitioners, finding of this Court that the plaintiffs' suit is barred under Order II Rule 2 of the Code is erroneous since in **Virgo Industries** (supra) no law or stipulation or any straight jacket formula has been laid down that in all cases based on agreement for sale, filing of any suit for injunction prior to the filing of suit for specific performance will result in the suit being hit by Order II Rule 2 of the Code. According to him, the decisions in **Virgo Industries** , **Rathnavathi and Sucha Singh Sodhi v. Baldev Raj Walia ((2018) 6 SCC 733** ) are distinguishable on facts. Per contra, learned senior counsel would contend that the judgment rendered by the Supreme Court in **Virgo Industries** explaining the principles under Order II Rule 2 of the Code is binding on this Court as a law declared by the Supreme Court under Article 141 of the Constitution. Learned senior counsel also placed reliance on **Gurbux Singh** to reinforce the bar under Order II Rule 2 in this case. It is also pointed out that the decision in **Virgo Industries** has been followed by another Division Bench of this Court in **Sasidharan Nair** . For that reason also a Single Judge is bound to follow the ratio in **Virgo Industries** . 9. Review petitioners' counsel strongly contended that the decision in 7 R.P.No.262 of 2021 in A.S.No.484 of 1998 **Virgo Industries** arose from a proceeding under Article 227 of the Constitution filed before the Madras High Court wherein the defendants sought to strike off the plaint filed for specific performance on the ground that they had earlier filed a suit for injunction. That court declined to exercise its jurisdiction under Article 227 of the Constitution and also that the suits were not hit by Order II Rule 2 of the Code. That proceeding was challenged before the Supreme Court and the Supreme Court allowed the appeal setting aside the judgment of the Madras High Court and the plaints were struck off. Forceful arguments advanced by the learned counsel for the review petitioners is that the ratio in **Virgo Industries** shall not be followed because the basis of the same was on a proceeding under Article 227 of the Constitution and therefore the dictum cannot have force of law under Article 141 and it can only be one under Article 142. This argument is stoutly denied by the learned senior counsel contending that on a complete reading of the judgment in **Virgo Industries,** it will not support such a legal proposition. Moreover, that decision has been followed by the apex Court and this Court in so many other decisions. Single Benches are bound to follow the ratio in the Larger Bench decisions of this Court and the Supreme Court. If at all there is any remedy available to the review petitioners, it is to approach the apex Court for appropriate reliefs. 10. In addition to that, this Court in the judgment rendered in appeal has also held that the claim in the suit is barred by _res judicata_ under Section 11 of the Code by virtue of the attainment of finality in the judgment in O.S.No.164 of 1994. That aspect is also beyond any challenge at this point in time. Decision in 8 R.P.No.262 of 2021 in A.S.No.484 of 1998 **Virgo Industries** is rendered by two Hon'ble Judges of the Supreme Court. Reliance placed by the learned counsel for review petitioners on **Vithalbhai (P) Ltd. v. Union Bank of India ((2005) 4 SCC 315)** , a decision by a co-equal bench, cannot salvage the situation. Considering the ratio in **Gurbux Singh** rendered by a Constitution Bench, I find that the decision in **Inbasagaran v. S.Natarajan ((2015) 11 SCC 12)** does not lay down a different principle. Therefore, that plea raised by the review petitioners is also not sustainable. 11. Learned senior consel relying on a large number of decisions rendered by the apex Court and this Court contended that the review court does not sit in appeal over its own order. A re-hearing of the matter is impermissible in law. To support this argument, reliance is placed on **Shri Ram Sahu (dead) through Lrs. v. Vinod Kumar Rawat and others (SLP (Civil) No.28150 of 2017 – judgment dated 03.11.2020)** . In that decision all the relevant decisions pertaining to the powers of review have been reiterated. I need not cite all the decisions referred to in **Shri Ram Sahu** over and over again since it is a well settled principle that it is not permissible for an erroneous decision to be re-heard and corrected. A review petition has a limited purpose and cannot be treated as an appeal in the disguise. This principle has been lucidly held in **Kerala State Electricity Board v.Sulabha Marketing (P) Ltd. (2018 (1) KLT 765)** . It has been held in **State of West Bengal and others v. Kamal Sengupta and another ((2008) 8 SCC 612)** that the term “mistake or error apparent” by its very connotation signifies an error which is evident per se from the record of the case and does not require a detailed examination, scrutiny and elucidation either of R.P.No.262 of 2021 in 9 A.S.No.484 of 1998 the facts or the legal position. If an error is not self-evient and detection thereof requires long debate and process of reasoning, it cannot be treated as an error apparent on the face of the record for the purpose of Order XLVII Rule 1 of the Code. Having regard to the factual issues and legal propositions, I am of the view that the review petitioners miserably failed to establish any error apparent on the face of the record or other reasons referable to Order XLVII Rule 1 of the Code to claim a review. Hence the review petition is dismissed. ## **A.HARIPRASAD** ## **JUDGE** cks