P.K. Kurian v. K.J. Abraham and Others (Review Petition Nos. 648 & 651 of 2016 in A.S. No. 564/2001)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE A.HARIPRASAD WEDNESDAY, THE 9TH DAY OF AUGUST 2017/18TH SRAVANA, 1939 RP.No. 648 of 2016 IN AS.564/2001 AGAINST THE JUDGMENT IN AS 564/2001 of HIGH COURT OF KERALA DATED 26.5.2016 ## REVIEW PETITIONER/4TH DEFENDANT: P.K.KURIAN, S/O KURIAN, ANIKKALPUTHENPARAMBIL HOUSE, MANGANAMKARA, VIJAYAPURAM VILLAGE, KOTTAYAM. BY ADVS.SRI.S.SREEKUMAR (SR.) SRI.ABRAHAM GEORGE JACOB SRI.JAMSHEED HAFIZ ## RESPONDENTS/APPELLANTS & RESPONDENTS/ PLAINTIFFS AND DEFENDANTS: 1. K.J.ABRAHAM, S/O YOHANNAN, KOLLANTEVADAKKATHIL, PENNUKARA, CHENGANNOOR, REPRESENTED BY HIS SON AND POWER OF ATTORNEY HOLDER DR. BOBY ABRAHAM, PARAKADAVIL PALACE, 1ST FLOOR, PAROTTUKONAM, TRIVANDRUM, AUTHORISED BY THE POWER OF ATTORNEY EXECUTED BY TE FORMER ON 17-06-1992 BEFORE SRI T.K. SUKUMARAN ADVOCATE AND NOTARY PUBLIC, TRIVANDRUM PIN 695 015. 2. MRS. MARYKUTTY ABRAHAM, W/O K.J. ABRAHAM, KOLLANTE VADAKKETHIL, PENNUKARA, CHENGANNUR 689 121. 3. MRS. MAYIAMMA ITTY,W/O P.M. ITTY, EXCELL COTTAGE, VIJAYAPURAM VILLAGE, MATTUMBALAM, KOTTAYAM 686 004. 4. CHANDY ITTY ALIAS SUBU ITTY, S/O P M ITTY, EXCELL COTTAGE, VIJAYAPURAM VILLAGE, MATTUMBALAM, KOTTAYM 686 004. 5. P.M. ITTY,S/O MATHAI (DIED) LRS RECORDED (RESPONDENTS 1,2,6 AND 7 ARE LRS ALREADY IN PARTY ARRAY, RECORDED AS PER ORDER IN MEMO DATED 07-12-2007) IN RFA. 6. MATHEWS MATHEWS, S/O M.M. MATHEW, MALIKAYIL HOUSE, VADAKKEKARA VILLAGE, CHENGANNOOR, NOW WORKING IN WELCOME RESTAURANT P.O BOX NO 7528, DUBAI- UAE. 7. MRS. SARAMMA GEORGE, W/O GEORGE MATHEW, EXCELL COTTAGE, MUTTAMBALAM, VIJAYAPURAM VILLAGE, KOTTAYAM 686 004. 8. MRS. MARIAMMA THOMAS, W/O THOMAS, KAITHAVANA VILLA, GAS HOUSE ROAD, KUNNUKUZHY, TRIVANDRUM 695 037. 9. ITTY IYPE, S/O ITTY IYPE, ARYADUPARAMBIL, PANAYAKAZHIPPU KARA, VIJAYAPURAM VILLAGE, KOTTAYAM 686 004. R3,R 4,R 7,R 8 BY ADV. SRI.KOSHY GEORGE R3,R 4,R 7,R 8 BY ADV. SRI.P.C.HARIDAS R1 BY ADV. SRI.G.S.REGHUNATH THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 09-08-2017, ALONG WITH RP. 651/2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **ANTONY DOMINIC & A.HARIPRASAD, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -** ## **R.P.Nos.648 & 651 of 2016 in A.S.No.564 of 2001** **- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 9[th] day of August, 2017** ## **COMMON ORDER** ## _**Hariprasad, J.**_ Heard the learned Senior Counsel appearing for the review petitioner and the learned counsel appearing for the respondents. 2. This court, vide common judgment dated 26[th] May 2016, disposed the first appeal and a cross objection filed against the judgment and decree of the trial court in a suit for declaration, putting up and demarcating the eastern boundary of plaint B schedule property and for such other reliefs. The review petitioner is the fourth defendant in the suit. According to him, there are errors apparent on the face of the judgment which calls for a review. The grounds urged for review are thus: _A) There is error apparent on the face of the judgment dated 26.5.2016 in A.S.564/2001 before this Honourable Court and upon the discovery of very vital and important document (Registered power of attorney executed by the 2[nd] plaintiff in the name of the 5[th] defendant) which would really affect the merits of the case._ R.P.Nos.648 & 651/16 in A.S.No.564 of 2001 : 2 : _B) The error apparent on the face of the record in the impugned judgment is the finding of this honourable court in Para 38 of the judgment that “But nothing is produced to assert his claim. Further he has not produced any document to show that he has also contributed to the cost of building construction.” The above appreciation of facts being incorrect and an error on the face of the record because it is an admitted and undisputed fact that the plaintiff has received the sale consideration paid by the 4[th] defendant in his account. The PW1 in his cross examination at page 16 admitted as follows:_ _“Ext.A11-_ ð _1978-_ -ð _7500_ cq] Fsâ IW¡nð hchv sh¨ncn¡póp. B _7500_ cq] F´mWv Fóv Rm³ At\zjn¨nñ. B _7500_ cq] _Ext.A2_ B[mc¯nð Xocphnebmbn ]dªncn¡pó XpIbtñ? _(Q)_ icnbñ. _Pass book_ In«nb tijamWv Rm³ AdnbpóXv. _(A)_ C{]Imcw DÅ kwJybtñ. _Ext.A11-_ ð ]dbpó _7500_ cq] _(Q)_ B _date-_ ð sN¡v sImSp¯p Fóv Rm³ hnizkn¡póp _(A)”_ . _In Ext.A2, the payment of consideration of Rs.7500/was by way of cheque no.78092 drawn on South Indian Bank, Kottayam branch._ _This was considered by the trial court in para 11, page 20, 3[rd] last line. This honourable court totally went wrong in discarding the admitted fact and the same is an error apparent on the face of the record which would really affect the merit of the case._ R.P.Nos.648 & 651/16 in A.S.No.564 of 2001 : 3 : _C) The discovery of the new document is the Certified Copy of the Power of attorney which is executed by the 2[nd] plaintiff in favour of the 5[th] defendant. The 2[nd] plaintiff do really concealed the same before the court. Though an application was filed by the review petitioner in the trial court for the production of the above document, the plaintiffs replied before the court that they were not in possession of the above document. Though earnest efforts were made by the review petitioner/4[th] defendant to obtain a certified copy of the document, the same was not given to him stating that the said copy will be given only to the parties to the above document. It was during the pendency of the appeal, that the review petitioner herein obtained a certified copy of the above power of attorney. A perusal of the above power of attorney would clearly show that the 2[nd] plaintiff had authorised the 5[th] defendant to execute sale on her behalf._ _D) This Honourable Court ought to have taken a liberal approach in accepting the document under Order 41 rule 27 of the code because the document itself was a certified copy issued by the competent government office forming itself a public document. The court below without relying on technicality or reasons, ought to have decided the matter on merits based on its truth. The finding that the document was not produced in accordance with Order 41 Rule 27 CPC is contrary to the admitted facts._ _E) The review petitioner respectfully submits that this Honourable Court totally failed to appreciate the 2[nd] illustrations to Section 101 of the Evidence Act in appreciating the burden of proof in the case and it being_ R.P.Nos.648 & 651/16 in A.S.No.564 of 2001 : 4 : _an error in law would amount to an error apparent on the face of the record._ _F) The review petitioner respectfully submits that the finding of the court with respect to the burden of proof that it is the burden of the defendant to prove the execution of the document is incorrect and against the settled position of law by the Supreme Court, which would itself makes it an error apparent on the face of the record. It is respectfully submitted that the defendant will have no burden in a civil case to prove the case put up by the plaintiff to be false unless and until the plaintiff is benefitted by a statutory presumption. The burden to the defendant is only to prove the defence put up by him or to prove the 'onus' on him which shifted during the course of the trial. The weakness of the defendant ought not have taken as admission of the case of plaintiff or the proof of plaint contentions._ _G) The review petitioner respectfully submits that this Honourable Court totally failed to consider the fact that the documents Ext.A2 and A5 are not void documents and are only voidable documents at the option of the other party. Those documents would become void only if the plaintiffs prove that he had not authorised the power of attorney to execute the sale deed. The decisions cited in the regard are all true and enumerate correct legal principles but the fact being different are applicable only for a document which is per se void and void ab initio. The document in dispute not being void document and instead being voidable document, the above decision cited are not applicable to the facts and circumstances of the case._ R.P.Nos.648 & 651/16 in A.S.No.564 of 2001 : 5 : _H) The review petitioner respectfully submits that the suit cannot be considered as a suit for recovery of possession and that the prayer for declaration is secondary, unless and until the declaration is sought over a void document and not over a voidable document. Only if the alleged document is a void document per se or void ab initio that the plaintiff could sue as if there is no document at all and then the prayer for declaration may be of abundant caution. Further this honorable court totally failed to appreciate the payment of court fee by the plaintiff in the suit._ _I) Admittedly Ext.A2 was executed on 5.4.1978. It is the definite case of the plaintiff that they came to India thereafter on various occasions. The suit was filed on 18.10.93. The long delay in initiating the suit itself is sufficient to hold that the suit is experimental and without bonafide. The relief of declaration under Section 34 of Specific Relief Act is discretionary relief. The plaintiff came to the court with unclean hands and after unexplained long delay and after receiving the sale consideration in Ext.A2, the discretion may not have been exercised in favour of the plaintiff._ _J) There is yet another reason for refusing discretionary relief under Section 34 of Specific Relief Act. The definite case of the plaintiff is that they have not executed any power of attorney to the 5[th] defendant to execute the sale deed. However in appeal the 4[th] defendant produced the certified copy of the power of attorney executed by the 2[nd] plaintiff in favour of 5[th] defendant enabling the 5[th] defendant to execute sale deed in respect of her share in_ R.P.Nos.648 & 651/16 in A.S.No.564 of 2001 : 6 : _plaint A schedule. It is demonstrated that plaintiff have approached the court with unclean hands and disentitle for the discretionary relief._ _K) In equity of this honourable court ought to have ordered to refund the sale consideration admittedly received by the plaintiff and cost of the construction of the building or else it will result in Unjust Enrichment._ 3. Learned senior counsel for the review petitioner contended that this court erred in relying on Article 65 of the Limitation Act to find that the suit is not barred by limitation. According to him, the pleadings would show that essentially the suit is one for a declaration and not one for fixation of boundary. This aspect has been considered in detail in the judgment. If at all the review petitioner is aggrieved, his remedy is to challenge it in an appeal. 4. Another contention raised by the learned senior counsel for the review petitioner is that this court wrongly cast the burden on the defendants for the non production of the power of attorney, alleged to have been executed by the plaintiff in favour of the 5[th] defendant. According to him, the documents produced would show R.P.Nos.648 & 651/16 in A.S.No.564 of 2001 : 7 : that the original power of attorney executed by the plaintiffs in favour of the 5[th] defendant had not handed over because the assignment was only in respect of a part of the property. On the basis of the pleadings and the materials available on record, this contention has been answered by this court in the judgment under review. 5. Yet another contention raised by the senior counsel is that rejection of the application filed under Order 41 Rule 27 CPC seeking production of a power of attorney at the appellate stage was an erroneous one. According to him, if that document was relied on, the decision of this court would have been different. We have already stated sufficient reasons for rejecting the application as there was no explanation offered for not producing the document at the time of trial and it was without satisfying the mandatory requirements prescribed under Order 41 Rule 27. 6. It is settled in many decisions by the Supreme Court that a review cannot be entertained if it is in appeal in disguise. In R.P.Nos.648 & 651/16 in A.S.No.564 of 2001 : 8 : ## _**Parsion Devi and Others v. Sumitri Devi and Others [(1997) 8**_ _**SCC 715]**_ it has been held thus: _9. Under Order 47 Rule 1 CPC 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 which 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 47 Rule I CPC. In exercise of the jurisdiction under Order 47 Rule 1 CPC it is not permissible for an erroneous decision to be "reheard and corrected". A review petition, it must be remembered has a limited purpose and cannot be allowed to be "an appeal in disguise"._ ## 7. These principles have been reiterated by the Supreme Court in _**State of West Bengal and Others v. Kamal Sengupta and another [(2008) 8 SCC 612]**_ . Para 22 of the decision reads thus: _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 detailed examination, scrutiny and elucidation either of the facts or the legal position. If an error is not selfevident 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 47 Rule 1 CPC or Section 22(3)(f) of the Act. To put it differently an order or decision or_ R.P.Nos.648 & 651/16 in A.S.No.564 of 2001 : 9 : _judgment cannot be corrected merely because it is erroneous in law or on the ground that a different view could have been taken by the court/tribunal on a point of fact or law. In any case, while exercising the power of review, the court/tribunal concerned cannot sit in appeal over its judgment/decision._ After hearing the learned counsel on both sides and considering the legal principles involved in the matter, we are of the view that the grounds urged by the review petitioner is beyond the scope of Order 47 Rule 1 CPC. Therefore, the review petitions are dismissed. **SD/ANTONY DOMINIC JUDGE** **SD/A.HARIPRASAD JUDGE** _jes_