Rasheed S/o Hassankunju v Rahmath W/o Late Salim and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY,THE 30TH DAY OF OCTOBER 2018 / 8TH KARTHIKA, 1940** **RP.No. 729 of 2017 IN OP(C). 174/2014** **AGAINST THE JUDGMENT IN OP(C)No.174/2014 of HIGH COURT OF KERALA** ## **DATED 22-03-2017** ## **REVIEW PETITIONER/RESPONDENT:** **RASHEED S/O.HASSANKUNJU, AGED 63 YEARS, ELLATHUPARAMBIL HOUSE, KATTAPANAKARA, KATTAPPANA VILLAGE, UDUMBANCHOLA TALUK, PIN-685508.** **BY ADVS. SRI.T.KRISHNANUNNI (SR.) SRI.E.A.BIJUMON** ## **RESPONDENTS/PETITIONERS:** **1 RAHMATH W/O.LATE SALIM, AGED 48 YEARS, ELLATHUPARAMBIL HOUSE, KATTAPANAKARA, KATTAPPANA VILLAGE, UDUMBANCHOLA TALUK, PIN-685508.** **2 NAZIA D/O.LATE SALIM, AGED 27 YEARS,ELLATHUPARAMBIL HOUSE, KATTAPANAKARA,KATTAPPANA VILLAGE, UDUMBANCHOLA TALUK,PIN-685508.** **3 IYSHA D/O.LATE SALIM, AGED 25 YEARS,ELLATHUPARAMBIL HOUSE, KATTAPANAKARA,KATTAPPANA VILLAGE, UDUMBANCHOLA TALUK,PIN-685508.** - **4 ASEEB** **S/O.LATE SALIM, AGED 21 YEARS,ELLATHUPARAMBIL HOUSE, KATTAPANAKARA,KATTAPPANA VILLAGE, UDUMBANCHOLA TALUK,PIN-685508.** **5 AJAS AZIZ S/O.AZIZ,AGED 31 YEARS,ELLATHUPARAMBIL HOUSE, KATTAPANAKARA,KATTAPPANA VILLAGE, UDUMBANCHOLA TALUK,PIN-685508.** **THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 30.10.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **R.P.No.729 of 2017** ## **:-2-:** ## **C.M.Appl.No.325/2017 in R.P.No.729/2017 and R.P.No.729/2017** ## **O R D E R** R.P.No.729/2017 is one filed by the petitioner, who is the sole respondent in O.P.(C)No.174/2014, invoking Order XLVII, Rule 1 of the Code of Civil Procedure, 1908, seeking review of the judgment of this Court dated 22.3.2017 in O.P.(C)No.174/2014, on the ground that the said judgment is vitiated by errors of law and facts and is liable to be reviewed by this Court. The ground raised in this review petition reads thus; (A) It is submitted that the judgment of this Court is vitiated by errors of law and facts. By keeping alive the interim order of stay granted in O.P.(C)No.170/2014, this Court has set aside the judgment in the C.M.A. and the I.A. without considering the same on merits. The petitioner is put to irreparable injury by ## **R.P.No.729 of 2017** ## **:-3-:** that decision. There is sufficient cause for reviewing the above judgment. 2. This review petition is filed with a delay of 100 days and for condoning that delay, the petitioner has filed C.M.Appl.No.325/2017. In the affidavit accompanying to that C.M.Application, it is averred that due to an inadvertent omission, his counsel did not notice the posting of the case on 22.3.2017 and hence he could not appear on that day. He came to know about the judgment dated 22.3.2017 only on 12.6.2017. A copy application was filed on 13.6.2017 and certified copy of the judgment was obtained on 14.6.2017. During the trial of the suit, on going through the records, his counsel advised him to file a review petition and accordingly this review petition is filed (on 2.8.2017) along with an application to condone the delay of 100 days. 3. Heard the learned Senior Counsel for the ## **R.P.No.729 of 2017** ## **:-4-:** petitioner. 4. In **Collector, Land Acquisition v. Katiji** **(1987 (2) SCC 107)** the Apex Court held that, the legislature has conferred power to condone delay by enacting Section 5 of the Limitation Act, 1963 in order to enable the courts to do substantial justice to parties by disposing of matters on merits. The expression 'sufficient cause' employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice, that being the life-purpose for the existence of the institution of courts. 5. In **Esha Bhattacharjee v. Raghunathpur Nafar** **Academy (2013 (12) SCC 649)** the Apex Court summarized the principles applicable while dealing with an application for condonation of delay. Paras.21 and 22 of the judgment read thus; " **21.** From the aforesaid authorities the ## **R.P.No.729 of 2017** ## **:-5-:** principles that can broadly be culled out are: 21.1.There should be a liberal, pragmatic, justice-oriented, non-pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice. 21.2.The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining factsituation. 21.2.Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis. 21.4.No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of. 21.5.Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact. 21.6.It is to be kept in mind that ## **R.P.No.729 of 2017** ## **:-6-:** adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice. 21.7.The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play. 21.8.There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation. 21.9.The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of **R.P.No.729 of 2017** ## **:-7-:** liberal approach. 21.10.If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation. 21.11.It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation. 21.12.The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception. 21.13.The State or a public body or an entity representing a collective cause should be given some acceptable latitude. **22.** To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are:- 22.1.An application for condonation of delay should be drafted with careful ## **R.P.No.729 of 2017** ## **:-8-:** concern and not in a half hazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system. 22.2.An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective. 22.3.Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto. 22.4.The increasing tendency to perceive delay as a non-serious matter and, hence, lackadaisical propensity can be exhibited in a nonchalant manner requires to be curbed, of course, within legal parameters." 6. It is well settled that, the Law of ## **R.P.No.729 of 2017** ## **:-9-:** Limitation is founded on public policy to ensure that the parties to a litigation do not resort to dilatory tactics and seek legal remedy without delay. In an application filed under Section 5 of the Limitation Act, the court has to condone the delay if sufficient cause is shown. Adopting a liberal approach in condoning the delay is one of the guiding principles, but such liberal approach cannot be equated with a licence to approach the court-at-will disregarding the time limit fixed by the relevant statute. The acts of negligence or inaction on the part of a litigant do not constitute sufficient cause for condonation of delay. Therefore, in the matter of condonation of delay, sufficient cause is required to be shown thereby explaining the sequence of events and the circumstances that led to the delay. In the instant case, same is absent. The reason stated in the affidavit accompanying to C.M.Application ## **R.P.No.729 of 2017** ## **:-10-:** No.325/2017 is not at all a sufficient cause for condonation of the delay of 100 days in filing the review petition. The petitioner has also not stated any valid reasons for not filing the review petition immediately after the receipt of the certified copy on 14.6.2017. 7. Moreover, the ground raised in the review petition, i.e., the judgment sought to be reviewed is vitiated by errors of law and facts would not fall within the ambit and scope of Order XLVII, Rule 1 of the Code of Civil Procedure, 1908. 8. In **Thungabhadra Industries Ltd v.** **Government of Andhra Pradesh (AIR 1964 SC 1372)** the Apex Court held that, review is, by no means an appeal in disguise, whereby an erroneous decision is reheard and corrected, but lies only for correcting patent errors. 9. In **Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi (1980 (2) SCC 167)** the Apex ## **R.P.No.729 of 2017** ## **:-11-:** Court held that, if the view adopted by the court in the original judgment is a possible view, having regard to what the record states; it is difficult to hold that there is error apparent on the face of the record. 10. 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 of Civil Procedure, 1908 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 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 XLVII, Rule 1 of the Code. In exercise of the jurisdiction under Order XLVII, Rule 1 of the Code, it is not permissible for an erroneous decision to be 'reheard and ## **R.P.No.729 of 2017** ## **:-12-:** corrected'. A review petition has a limited purpose and cannot be allowed to be 'an appeal in disguise'. 11. Later, in **Lily Thomas v. Union of India** **(2006 (3) 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 like an appeal in disguise. The mere possibility of two views on the subject is not a ground for review. 12. 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 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 rehearing ## **R.P.No.729 of 2017** ## **:-13-:** of the matter on merits. 13. In view of the law laid down by the Apex Court in the decisions referred to supra, the review jurisdiction under Order XLVII, Rule 1 of the Code is very limited and unless there is mistake or error apparent on the face of the record, the judgment does not call for review. Further, whilst exercising such power of review, the Court cannot be oblivious of the provisions contained in Order XLVII, Rule 1 of the Code and that the limits within which the Courts can exercise the power of review have been well settled in a catena of decisions. 14. Viewed in the light of the law laid down by the Apex Court in the decisions referred to supra, the ground raised in this review petition does not fall within the ambit and scope of Order XLVII, Rule 1 of the Code. ## **R.P.No.729 of 2017** **==> picture [41 x 8] intentionally omitted <==** In the result, the C.M.Application and also the review petition fail and they are accordingly dismissed. No order as to costs. Sd/- **ANIL K.NARENDRAN JUDGE** ami/31.10.18