RP.No. 390 of 2008 in S.A.38/1992

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** ## **THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR** **TUESDAY, THE 25TH MARCH 2008 / 5TH CHAITHRA 1930** ## **RP.No. 390 of 2008** - **------------------------AGAINST THE JUDGEMENT/ORDER IN SA.38/1992 Dated 28/01/2004** **.................................** ## **REVIEW PETITIONER/ADDITIONAL 8TH APPELLANT:** **--------------------------------------------------------------------------** ## **M.S. SUKUMARAN, ANANDESWARAM, ARYANAD VILLAGE.** - **BY ADV. SRI.M.BALAGOVINDAN SRI.M.R.SASITH** ## **RESPONDENTS/RESPONDENTS & APPELLANTS 1 TO 7** **-------------------------------------------------------------------------------** **1. MUTHAMMA, W/O. RAMASWAMI ASARI, CHERAPPALLI, ROADARIKATHU VEEDU, KOTTAKKAM MURI, ARYANAD VILLAGE.** **2. VELAYUDHAN ASARI SUBBAYYAN ASARI OF -DO-** **3. BHAGAVATHY, W/O. KRISHNAN ASARI, -DO-** **4. KRISHNAMMA CHERAPPALLI ROADARIKATHU VEEDU, ARYANAD VILLAGE.** **5. KRISHNAMMA RADHA OF -DO-** **6. SHANMUGHAN ASARI RAJENDRAN OF -DO-** **7. SHANMUGHAN ASARI KRISHNAN OF -DO-** **8. LAKSHMY PONNAMMA, ADIPARRANDOTTU ROADARIKATHU PUTHEN VEEDU, PAZHAYATHERUVU MURI, ARYANAD VILLAGE (DIED)** **9. SASTHAVU ASARI PADMANABHAN OF -DO-** **10. SASTHAVU ASARI MANIAN OF -DO-** **11. SASTHAVU ASARI MURUKAN OF -DO-** **RP.No. 390 of 2008** ## **12. SASTHAVU ASARI KUMARESAN OF -DO-** **13. SASTHAVU ASARI NADARAJAN OF -DO- (DIED)** **14. SASTHAVU ASARI ASOKAN OF -DO-** **15. UMMINI SREEDHARAN, MELEVILAKATHU VEEDU, PAZHAYATHERUVU MURI, ARYANAD VILLAGE (DIED)** **16. S.RAJENDRAN, RUDRA, ANANDESWARAM, ARYANAD VILLAGE.** **17. CHANDRAMOHANAN, ARADHANA, ANANDESWARAM, ARYANAD VILLAGE.** **18. BHUVANENDRANATH, ATHIRA, -DO- -DO-** **19. JAYA MANOHARAN, SREE VILASOM BUNGLOW, ARYANAD VILLAGE.** **20. OMANA, NIKUNJAM, T.C. 10/62, RANDAMVILA MURI, PEROORKADA.** **21. PADMAKUMARI, T.C. 81/357, KARTHIKA, PETTA, THIRUVANANTHAPURAM.** - ***22. RAJAN ASARI, CHERAPALLI ROADARIKATHU VEEDU, VALIAYAKALUNGU, PARAN ROAD P.O., ARYANAD VILLAGE, NEDUMANGADU, THIRUVANANTHAPURAM.** **23. RAJAYYAN ASARI, CHERAPALLI ROADARIKATHU VEEDU, VALIYAKALUNGU, PARAN ROAD P.O., ARYANAD VILLAGE, NEDUMANGAD, THIRUVANANTHAPURAM.** **24. RETNAMA, W/O. BHAIRAVAN ASARI, GIRISH BHAVAN, PULIPPARA, CHANTHAVILA, NEDUMANGADU.** **25. PADMAVATHI, W/O. KALIYAPPAN ASARI, CHERAPPALLI ROADRIKATHU VEEDU, VALIYAKALUNGU, PARAN ROAD P.O., ARYANAD VILLAGE, NEDUMANGADU, THIRUVANANTHAPURAM.** ## **RP.No. 390 of 2008** **26. RAJAPPAN ASARI, CHERAPALLI ROADRIKATHU VEEDU, VALIYAKALUNGU, PARAN ROAD P.O., ARYANAD VILLAGE, NEDUMANGADU, THIRUVANANTHAPURAM.** **27. RAJAMMA, W/O. PADMANABHAN ASARI, CHERAPALLI ROADRIKATHU VEEDU, VALIYAKALUNGU, PARAN ROAD P.O., ARYANAD VILLAGE, NEDUMANGAD, THIRUVANANTHAPURAM.** **28. SURESH, CHERAPALLI ROADARIKATHU VEEDU, VALIYAKALUNGU, PARAN ROAD P.O., ARYANAD VILLAGE, NEDUMANGADU, THIRUVANANTHAPURAM.** **29. SANTHOSH, CHERAPALLI ROADARIKATHU VEEDU, VALIYAKALUNGU, PARAN ROAD P.O., ARYANAD VILLAGE, NEDUMANGADU, THIRUVANANTHAPURAM.** - ***ADDL. R22 TO 29 ARE IMPLEADED AS PER ORDER DATED 12/07/2006 IN IA NO. 3342/2006.** **BY ADV. SRI.SUMAN CHAKRAVARTHY** **THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 25/03/2008,THE COURT ON THE SAME DAY PASSED THEFOLLOWING:** ## **M.SASIDHARAN NAMBIAR, J. =============================== R.P.390/2008 IN S.A.38/1992 ================================ Dated this the 25th day of March 2008** ## **ORDER** The 8th appellant filed this petition under Rule 1 of Order XLVII to review the judgment dated 28.1.2004 in S.A.38/1982. Notice was issued to the respondents. Learned counsel appearing for the petitioner and respondents 1 to 7 and 9 to 12 and 14 were heard. 2. The grounds shown to review the judgment are that the trial court in paragraph 9 of the judgment stated that plaintiff's father is having title to the plaint schedule property and he inherited the same and the Will were not proved and therefore title cannot be declared. It was argued that first appellate court entered a finding that there is no denial of execution of the Will and hence Will need not be proved but appellant did not prove a valid title to the plaint schedule property. According to the R.P.390/2008 2 petitioner, the records produced along with the review petition, if available would have established that appellants have title to the plaint schedule property. It was contended that the documents produced establish the contentions raised by the father of the petitioner/the original plaintiff and therefore the judgment dated 28.1.2004 is to be reviewed. 3. Argument of the learned counsel appearing for the petitioner is that petitioner was only one of the legal heirs of deceased plaintiff/appellant who was impleaded in the second appeal and he could not produce the said documents earlier and if the documents were available before this Court, the judgment would have been different and therefore the judgment is to be reviewed. Learned counsel relied on the decision of a learned single judge of High Court of Allahabad in **Kariya Mahto Kurmi v Ram Sarup and another** (AIR 1917 Allahabad 107) and argued that as the documents produced are material and R.P.390/2008 3 the records would establish that the judgment is not correct, the judgment is to be reviewed. Learned counsel appearing for the respondents pointed out that as provided under Clause b of Sub Rule-2 of Rule 4 of Order XLVII, an application filed for review shall not be granted on the ground of discovery of new matter or evidence which the applicant alleges was not within his knowledge or could not be adduced by him when the decree or order was passed or made, without direct proof of such allegations and non-availability of the records at the time of disposing of the appeal by itself is not a ground to order review of the judgment. Learned counsel also pointed out that petitioner was impleaded in the second appeal on 15.10.2003 and second appeal was disposed only on 28.1.2004 and in such circumstances, the judgment cannot be reviewed on the ground of availability of new documents. 4. Rule 1 of Order XLI enables the court to review R.P.390/2008 4 the judgment, if there is any apparent error or other sufficient reason, to order review of the judgment enables a party to apply for review on the discovery of new evidence, if in spite of exercise of due diligence, it was not within his knowledge or could not be produced by him at the time when the decree was passed. Even according to the petitioner, there is no apparent error in the judgment. The reason which according to the petitioner is sufficient to order review is availability of documents now produced along with this petition. The question is whether it is a sufficient ground to order review of the judgment. 5. Even if those documents were produced in second appeal earlier, they could not have been received without satisfying the grounds provided under Rule 27 of Order XLVII of Code of Civil Procedure. If the documents now produced could have been procured by the plaintiff when the case was pending before the trial court or the first appellate court, after exercising due diligence, they R.P.390/2008 5 could not have been received as additional evidence under Rule 27 of Order XLI. Even according to the petitioner, after disposal of the appeal on his application, he received the documents which are now produced before this court. If that be so and the original plaintiff had exercised due diligence expected of an ordinary litigant, these documents could have been received by the plaintiff himself or by the petitioner after he was impleaded in the second appeal. Moreover proviso (b) to sub rule 2 of Rule 4 of Order XLVII of Code of Civil Procedure expressly provide that no application for review shall be granted on the ground of discovery of new matter or evidence which the applicant alleges was within his knowledge or could not be produced when the decree was passed without strict proof of such allegation. As petitioner was one of the legal heirs of deceased appellant/plaintiff, the relevant aspect is the knowledge of the plaintiff and not that of petitioner. So also the diligence to be exercised. As it is clear that if the plaintiff/ R.P.390/2008 6 appellant had exercised the diligence expected, he could have adduce the evidence. Therefore the availability of documents now produced is not a sufficient reason to order review of the judgment. Petition is dismissed. M.SASIDHARAN NAMBIAR, JUDGE CSS/