R.P.No.232 of 2019 in C.R.P.No.219 of 2016

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **FRIDAY, THE 13TH DAY OF DECEMBER 2019 / 22ND AGRAHAYANA, 1941** ## **R.P.No.232 OF 2019 IN C.R.P.219/2016** **AGAINST THE ORDER DTD.22.11.2018 IN CRP 219/2016 OF HIGH COURT OF KERALA** ## **REVIEW PETITIONERS:** - **1 PUTHUPPALLIPURAM SNDP SAKHAYOGAM NO.219, PUTHUPPALLIPURAM,KOONAMTHAI,EDAPPALLY.PO, KOCHI-24 AN UNREGISTERED AND UNINCORPORATED ASSOCIATION OF NUMEROUS PERSONS REPRESENTED BY ADMINISTRATIVE OFFICER T.M.VIJAYAKUMAR AND PRESENTLY REPRESENTED BY THE PRESENT ADMINISTRATOR K.P.SIVADAS.** - **2 T.M.VIJAYKUMAR, AGED 64 YEARS, S/O.T.K.MADHAVAN, ADMINISTRATIVE OFFICER, THE PUTHUPPALLIPURAM SNDP SAKHAYOGAM NO.219, PUTHUPPALLILPURAM, KOONAMTHAI,EDAPPALLY.P.O,KOCHI-24,PRESENTLY REPRESENTED BY THE ADMINISTRATOR K.P.SIVADAS.** **3 THE KANAYANNOOR SNDP UNION, REPRESENTED BY ITS CONVENOR,P.D.SHYAMDAS, OFFICE OF THE KANAYANNOOR SNDP UNION, ASHA NAGAR, PALARIVATTOM,KOCHI-25.** - **4 P.D.SHYAMDAS, CONVENOR, THE KANAYANNOOR SNDP UNION, ASHA NAGAR, PALARIVATTOM,KOCHI-25.** **BY ADV.SRI.JOSE PALLATTUKARAN** ## **RESPONDENTS:** - **1 SATHYAN.M.S., AGED 46 YEARS, S/O.SUDAYAN,MAVOOMMOOTTIL HOUSE,A.K.G.ROAD, EDPAPPALLY.P.O-682024.** ..2.. R.P.No.232 of 2019 in C.R.P.No.219 of 2016 - **2 RATHEESH.M.T, AGED 28 YEARS, S/O.THANKAPPAN,MANAKKAPARAMBIL HOUSE, GODOWN ROAD,EDAPPALLY.P.O-682024.** - **3 PREMLAL.M.C, AGED 52 YEARS, S/O.CHANDRAN,MANATHUPADOM, CHANGAMPUZHA NAGAR.P.O,KALAMASSERY-683014.** - **4 M.N.PEETHAMBARAN, AGED 54 YEARS,** - **S/O.NARAYANAN,MALOTH HOUSE,UNICHIRA, THRIKKAKARA.P.O-682021.** - **5 T.U.MANOHARAN, AGED 63 YEARS, S/O.T.K.UNNI,THYPARAMBIL HOUSE, PUTHENPALLIPURAM,EDAPPALLY.P.O-682024.** - **6 K.V.BHUVANACHANDRAN, AGED 68 YEARS,** - **S/O VELAYUDHAN,KURUPPAMPARAMBU HOUSE, CHANGAMPUZHA NAGAR.P.O,UNICHIRA-682033.** - **7 K.V.BOSS, AGED 64 YEARS, S/O.K.K.VELAYUDHAN,KURUPPANPARAMBIL HOUSE, PUTHUPPALLIPURAM KARA, CHAMGAMPUZHA NAGAR.P.O,KOCHI-682033.** - **8 XLISHAD.P.P, AGED 37 YEARS, S/O.PURUSHOTHAMAN,ULIKAVUNGAL HOUSE, RAJIV NAGAR ROAD,EDAPPALLY.P.O-682024.** - **9 ANEESH.R, AGED 39 YEARS,** - **S/O.O.R.RAJAN,OLIPARAMBIL HOUSE,A.K.G.ROAD, EDAPPALLY.P.O.-682024.** ..3.. R.P.No.232 of 2019 in C.R.P.No.219 of 2016 - **10 M.R.SIVADASAN, AGED 75 YEARS, S/O.RAMAN, MATHUKAPPILLIL HOUSE,KOONAMTHAI, EDAPPALLY.P.O-682024.** - **11 P.A.PURUSHOTHAMAN, AGED 65 YEARS, S/O.APPU,PULUKAVUNGAL HOUSE, RAJIV NAGAR ROAD,EDAPPALLY.PO-682024.** - **12 E.K.SUDHAKARAN, AGED 60 YEARS, S/O.KRISHNAN,ELAVUNGAL HOUSE, A.K.G.ROAD, EDAPPALLY PO-682024.** - **13 JAYAKUMAR.K.P, AGED 44 YEARS, S/O.PUSHPAKARAN,DEVAGEETHAM, KETTETHUPARAMBIL HOUSE, K.P.N.R.A., 90,EDAPPALLY NORTH PO-682024.** - **14 C.P.DINESHAN, AGED 55 YEARS, S/O.PARAMU,SREEBHAVAN, CHOORAKOTTAYIL HOUSE, A.K.G.ROAD,EDAPPALLY.P.O-682024.** - **15 P.N.VELS, AGED 47 YEARS, S/O.NARAYANAN,PUTTINGAL HOUSE,UNICHIRA, CHANGAMPUZHA NAGAR PO-682033.** - **16 V.G.ANIL KUMAR, AGED 59 YEARS, S/O.GANGADHARAN,MANATHUPADOM HOUSE, PUTHUPPALLIPPURAM,CHANGAMPUZHA NAGAR-682033.** - **17 V.K.MURALI, AGED 65 YEARS, S/O.KUTTAPPAN,PULIMOTTILPARAMBIL HOUSE, EDAPPALLY-PO-682024.** R.P.No.232 of 2019 in C.R.P.No.219 of 2016 ..4.. - **18 P.K.SUSHEELAN, AGED 58 YEARS, S/O.KARTHIKEYAN,PARAKULANGARA HOUSE, CHANGAMPUZHA NAGAR PO,KOCHI-682033.** - **19 N.MOHANAN, AGED 71 YEARS, S/O.NARAYANAN,ILLIKKATTU, PUTHUPPALLIPURAM, EDAPPALLY.P.O, KOCHI-682024.** - **20 CHANDRASEKHARAN, AGED 60 YEARS,** - **S/O.MADHAVAN,VADAKKEDATHU VEEDU, AMBALAM ROAD,KOONAMTHAI, CHANGAMPUZHA NAGAR,KOCHI-682033.** ## **ADV.SRI.S.SREEKUMAR-R1 TO R18** **THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 28-11-2019, THE COURT ON 13-12-2019 PASSED THE FOLLOWING:** R.P.No.232 of 2019 in C.R.P.No.219 of 2016 ..5.. ## **N.ANIL KUMAR, J.** **---------------------------R.P.No.232 of 2019 in C.R.P.No.219 of 2016** **----------------------------------Dated this the 13[th] day of December, 2019** ## **ORDER** The review petitioners are respondent Nos.1 to 4 in C.R.P.No.219/2016 on the file of this Court. The revision was filed against the order dated 10.3.2016 in I.A.No.1212/2016 filed under Section 8 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as 'the Act') in O.S.No.1569/2015 of the Principal Munsiff's Court, Ernakulam. The learned Munsiff allowed the said I.A. by order dated 10.3.2016 and referred the parties for arbitration which was challenged in revision. By the order dated 22.11.2018, this Court set aside the impugned order holding that the application filed under Section 8 of the Act is not maintainable. 2. This Court considered the question as to whether the existence of an arbitration agreement as defined under R.P.No.232 of 2019 in C.R.P.No.219 of 2016 ..6.. Section 7 of the Act is a condition precedent for exercise of power to appoint an Arbitrator/Arbitral Tribunal under Section 11 of the Act. Considering the facts and circumstances involved, this Court followed the dictum laid down by the Apex Court in **Vimal Kishor Shah and Others** V. **Jayesh Dinesh Shah and others** [(2016) 8 SCC 788] and held that in the absence of an arbitration agreement or mutual consent as defined under Section 7 of the Act, the Rules of the Sree Narayana Dharma Paripalana Yogam, 1999, including Rule 71, do not satisfy the requirement of Section 2(1)(b) and 2(1)(h) read with Section 7 of the Act. This Court further held that the rule cannot be construed as an 'arbitration agreement' within the meaning of Section 7 of the Act. 3. The learned counsel for the review petitioners, Sri.Jose Pallattukaran submitted that Rule 71 of the bylaw of the SNDP Yogam is challenged in the revision, without impleading the SNDP Yogam as a party and they were not heard. The learned counsel further submitted that SNDP R.P.No.232 of 2019 in C.R.P.No.219 of 2016 ..7.. Yogam is a non-trading company registered under the provisions of the Indian Companies Act, 1881, an Act of British Regime, and subsequently registered under the provisions of Companies Act, 1956 and now replaced by the Companies Act, 2013. Thus, according to the learned counsel, the bylaws of SNDP Yogam are its Articles of Association as defined under Section 10 of the Companies Act, 2013. 4. Per contra, the learned Senior Counsel Sri.S.Sreekumar appearing for respondent Nos.1 to 18 contended that the review petitioners filed an application before the court below under Section 8 of the Act seeking to refer the parties to arbitration. Hence, according to the learned Senior Counsel, they are not justified in taking a different contention by way of review. The learned Senior Counsel further submitted that the court of review has only a limited jurisdiction circumscribed by the definite limit fixed by Section 114 read with Order XLVII Rule 1 of the Code of Civil Procedure (hereinafter referred to as 'the C.P.C.)'. R.P.No.232 of 2019 in C.R.P.No.219 of 2016 ..8.. 5. Heard Sri.Jose Pallattukaran, learned counsel for the review petitioners and Sri.S.Sreekumar, learned Senior counsel appearing for the respondents 1 to 18. 6. The power of a civil court to review its judgment/order is traceable in Section 114 of the C.P.C. The legal grounds on which review can be sought for are stated in Order XLVII Rule 1 of C.P.C. which reads as under:- _1._ _**Application for review of judgment** .- (1) Any person considering himself aggrieved-_ - _(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred;_ - _(b) by a decree or order from which no appeal is allowed, or_ - _(c) by a decision on a reference from a Court [exercising small cause jurisdiction], and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the_ R.P.No.232 of 2019 in C.R.P.No.219 of 2016 ..9.. _decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order._ ## 7. In **State of West Bengal and others v. Kamal Sengupta and another** [(2008) 8 SCC 612], the Supreme Court interpreted the provisions contained under Order XLVII Rule 1 of the C.P.C. and observed as follows:- _''21. At this stage it is apposite to observe that where a review is sought on the ground of discovery of new matter or evidence, such matter or evidence must be relevant and must be of such a character that if the same had been produced, it might have altered the judgment. In other words, mere discovery of new or important matter or evidence is not sufficient ground for review ex debito justitiae. Not only this, the party seeking review has also to show that such additional matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the Court earlier._ ..10.. R.P.No.232 of 2019 in C.R.P.No.219 of 2016 _22. 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 self-evident 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 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.''_ 8. In this connection, it is relevant to note some of the judgments of the Apex Court in which Section 114 read with Order XLVII Rule 1 C.P.C. have been interpreted to review its judgment or order. 9. In **Moran Mar Basselios Catholicos V. Mar Poulose Athanasius** [1995 (1) SCR 520] _,_ the Supreme Court R.P.No.232 of 2019 in C.R.P.No.219 of 2016 ..11.. ## held as follows:- _"............Under the provisions in the Travancore Code of Civil Procedure which is similar in terms to Order 47, Rule 1 of our Code of Civil Procedure, 1908, the Court of review has only a limited jurisdiction circumscribed by the definitive limits fixed by the language used therein._ _It may allow a review on three specified grounds, namely, (i) discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicant's knowledge or could not be produced by him at the time when the decree was passed, (ii) mistake or error apparent on the face of the record and (iii) for any other sufficient reason._ _It has been held by the Judicial Committee that the words 'any other sufficient reason' must mean 'a reason sufficient on grounds, least analogous to those specified in the rule'.''_ 10. In **Thungabhadra Industries Ltd. V. Govt.of A.P.** [AIR 1964 SC 1372] _,_ the Apex Court held that a review is by no means an appeal in disguise whereof an erroneous R.P.No.232 of 2019 in C.R.P.No.219 of 2016 ..12.. decision can be corrected. 11. In **Parsion Devi V. Sumitri Devi** [(1997) 8 SCC 715], the Supreme Court interpreted Order XLVII Rule 1 of the C.P.C and observed as under:- _"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 1 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'. There is a clear distinction between an erroneous decision and an error apparent on the face of the record. While the first can be corrected by the higher forum, the latter only can be corrected by exercise of the review jurisdiction. A review petition has a limited purpose and cannot be allowed to be 'an appeal in disguise'."_ ..13.. R.P.No.232 of 2019 in C.R.P.No.219 of 2016 12. In the light of the above legal principles, this Court has considered whether the order dated 22.11.2018, passed by this Court suffers from any error apparent on the face of record so as to warrant its review under Order XLVII Rule 1 of C.P.C. On a consideration of the facts, it is clear that the review petitioners' claim under Section 10 of the Companies Act, 2013 is against the affidavit filed by them in support of the application under Section 8 of the Act. It is well settled that a decree or order is binding upon the parties thereto and their privies. Merely because SNDP Yogam is not a party to the suit, the review petitioners seeking review are not entitled to review the impugned order. The review petitioners have not succeeded in showing an error which is self evident as an error apparent on the face of record justifying exercise of power under Order XLVII Rule 1 of C.P.C. As indicated earlier, even if the order is an erroneous one, the order cannot be corrected in the guise of exercise of review. Further, mere discovery of a new contention is not a sufficient ground for review. R.P.No.232 of 2019 in C.R.P.No.219 of 2016 **==> picture [30 x 9] intentionally omitted <==** A recapitulation of the facts narrated above would show that the review petition is unsustainable on merits. Thus, the review petition is dismissed accordingly. Sd/- **N.ANIL KUMAR, JUDGE** skj