R.P.No.175 of 2020

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** # **THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **FRIDAY, THE 10[TH] DAY OF JUNE 2022 / 20TH JYAISHTA, 1944** **R.P.NO.175 OF 2020** **AGAINST THE JUDGMENT DATED 12.08.2016 IN A.S.NO.229 OF** **1999 OF THE HIGH COURT OF KERALA** ## **REVIEW PETITIONERS/RESPONDENTS 2 & 3 IN AS:** - **1 THE EXECUTIVE ENGINEER NO.2 DIVISION, PERIYAR VALLEY IRRIGATION PROJECT, THOTTAKATTUKARA P.O., ALUVA.** - **2 THE STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** **BY SRI.JACOB E SIMON, GOVERNMENT PLEADER** ## **RESPONDENT/APPELLANT & 1ST RESPONDENT IN AS:** - **1 K.J.JOSEPH, S/O.OUSEPH ULAHANNAN, RESIDING AT 10/4164, MULAMTHURUTHY, REPRESENTED BY POWER OF ATTORNEY ALLY JOSEPH, W/O.JOSEPH, 10/4164, MULANTHURUTHY VILLAGE-682314.** - **2 BENNY MARKOSE, (FATHERS NAME NOT KNOWN) VANDANATHE HOUSE, POOMATTOM, KOLENCHERRY P.O-682311.** **BY ADVS.SRI.P.MARTIN JOSE SRI.O.V.ABRAHAM SRI.MATHEW ABRAHAM (OLIYIL)** **THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON** **10.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -2- R.P.No.175 of 2020 ## **ORDER** ## Anil K. Narendran, J. This review petition has been filed by respondents 2 and 3 in A.S.No.229 of 1999, arising out of the judgment and decree dated 21.03.1998 in O.S.No.888 of 1991 on the file of the Sub Court, Ernakulam, invoking the provisions under Order XLVII, Rule 1 of the Code of Civil Procedure, 1908, seeking review of the judgment of this Court dated 12.08.2016 in that appeal suit. 2. The plaintiff, who is the 1[st] respondent herein, filed O.S.No.888 of 1991 before the Sub Court, Ernakulam, claiming damages as compensation for the loss sustained by him in connection with a blasting work done by a contractor, in execution of the construction work of a canal. The State of Kerala and the concerned Executive Engineer of Periyar Valley Irrigation Project were arrayed as the defendants in that suit. The Sub Court, by the judgment and decree dated 21.03.1998, dismissed the suit. Challenging the judgment and decree of the trial court, the plaintiff filed A.S.No.229 of 1999 before this Court, which was allowed and the suit was -3- ## R.P.No.175 of 2020 decreed as prayed for with cost, by setting aside the judgment and decree of the trial court. Challenging the judgment of this Court dated 12.08.2016, the review petitioners had approached the Apex Court by filing S.L.P(C)No.19645 of 2019, along with an application for condonation of delay. By the order dated 16.08.2019, the Apex Court condoned the delay in filing the S.L.P. However, S.L.P(C)No.19645 of 2019 stands dismissed, keeping the question of law open. 3. After the dismissal of S.L.P(C)No.19645 of 2019, the petitioners filed this review petition before this Court, on 20.01.2020 along with C.M.Application No.1 of 2020 for condonation of delay of 608 days. The 1[st] respondent herein/plaintiff entered appearance and filed counter in that application. After considering the rival contentions, this Court, by the order dated 05.01.2022, allowed C.M.Application No.1 of 2022, thereby condoned the delay of 608 days, imposing a cost of Rs.1,000/- on the petitioners, payable to the 1[st] respondent/plaintiff, within a period of three weeks from the date of that order. Thereafter, this review petition is listed before this Court for admission. -4- R.P.No.175 of 2020 4. Heard the learned Government Pleader for the petitioners/defendants 2 and 3 and also the learned counsel for the 1[st] respondent/plaintiff. 5. The issue that arises for consideration in this Review Petition is as to whether any interference is warranted in the judgment of this Court dated 12.08.2016 in A.S.No.229 of 1999, invoking the review jurisdiction of this Court under Order XLVII, Rule 1 of the Code. 6. The learned Government Pleader would contend that the reasoning of this Court in paragraphs 11 and 12 of the judgment sought to be reviewed for accepting the report of the Advocate Commission cannot be sustained in law. In view of the observation made in the order of the Apex Court dated 16.08.2019 that the dismissal of S.L.P(C)No.19645 of 2019 is after keeping the question of law open, the aforesaid illegality in the judgment of this Court dated 12.08.2016 in A.S.No.229 of 1999 can be corrected invoking the review jurisdiction under Order XLVII, Rule 1 of the Code. 7. On the other hand, the learned counsel for the 1[st] respondent/plaintiff would contend that the aforesaid -5- R.P.No.175 of 2020 observation made by the Apex Court in its order dated 16.08.2019 in S.L.P(C)No.19645 of 2019 would not in any manner widen the scope of the review jurisdiction of this Court under Order XLVII, Rule 1 of the Code. ## 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 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 -6- ## R.P.No.175 of 2020 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 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 -7- R.P.No.175 of 2020 its face. Surely, review jurisdiction is not an appeal in disguise. The review does not permit rehearing 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. In exercise of review jurisdiction under Order XLVII, Rule 1 of the Code, it is not permissible for an erroneous decision to be 'reheared and corrected'. A review petition has a limited purpose and cannot be allowed to be an 'appeal in disguise'. 14. Viewed in the light of the law laid down by the Apex Court in the decisions referred to supra, none of the grounds raised in this review petition seeking review of the -8- R.P.No.175 of 2020 judgment dated 12.08.2016 in A.S.No.229 of 1999 falls within the ambit and scope of Order XLVII, Rule 1 of the Code. The observation made by the Apex Court, while dismissing S.L.P(C)No.19645 of 2019, that the dismissal is one after keeping the question of law open, would not entitle the review petitioners to convert this review petition as an 'appeal in disguise'. In the result, this review petition fails and the same is accordingly dismissed. No order as to costs. **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** **Sd/-** ## **P.G. AJITHKUMAR, JUDGE** AV/16/6