S. Radhakrishnan and Muthuswami Chettiar C. v. R. Sankar Rama Nivas and H. K. Radhakrishnan, Receiver (Returning Officer), Social Justice Foundation

RP.460/2020 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **TUESDAY, THE 23RD DAY OF JUNE 2020 / 2ND ASHADHA, 1942** ## **RP.No.460 OF 2020 IN OP(C). 849/2020** **AGAINST THE ORDER/JUDGMENT IN OP(C) 849/2020 OF HIGH COURT OF KERALA** ## **REVIEW PETITIONER/S:** **1 S.RADHAKRISHNAN AGED 67 YEARS S/O. S. SWAMI CHETTIAR, VISAKH, TC 50/1567, THALLIYIL, KARAMANA P. O., THIRUVANANTHAPURAM, PIN - 695 002.** **2 MUTHUSWAMI CHETTIAR C. AGED 54 YEARS S/O. CHELLAPAN CHETTIAR, BTR NAGAR A14, SHALINI NIVAS, NETTAYAM P. O., THIRUVANANTHAPURAM, PIN - 695 013.** **BY ADV. SRI.RAFEEK. V.K.** ## **RESPONDENT/S:** **1 R. SANKAR RAMA NIVAS, KACHERI WARD, KOLLAM, FORMER SECRETARY, SOCIAL JUSTICE FOUNDATION, T.C.46/1107 SARA BUILDING, ARYASALA, THIRUVANANTHAPURAM - 695 036.** **2 H. K. RADHAKRISHNAN RECEIVER (RETURNING OFFICER), SOCIAL JUSTICE, FOUNDATION, ROOM NO.108, SREE PUTHEN KOVIL BHAGAVATHY TEMPLE BUILDING, PETTA, THIRUVANANTHAPURAM, PIN - 695 024.** ## **OTHER PRESENT:** ## **ADV. R KRISHNA RAJ** **THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 23.06.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** RP.460/2020 2 ## **ORDER** **Dated this the 23rd day of June 2020** The review petitioners are the members of the Society namely 'Social Justice Foundation' (for short 'Society'). 2. The Society challenged the common order of the learned Additional District Judge in I.A Nos.1623/12 and 884/17 before this Court and it was confirmed in O.P(C) No.1592 of 2017 and FAO No.193 of 2017 and directed the receiver to conduct the election of the society by following the directions in the judgment. Thereafter O.P No.849/2020 was allowed directing to make publication through leading newspapers with all details having wide circulation in Kerala as well Tamil Nadu so as to enable all the members to remit arrears of subscription/membership fees in the account maintained by the bank as such details were not mentioned with clarity in the notice already published by the receiver. RP.460/2020 3 3. According to the learned counsel for the petitioners, it is an intervention to the election process which has already been started by the receiver and hence this petition is to review the order dated 26.5.2020. 4. Heard Adv.Rafeek V.K, the learned Counsel for the petitioners and Adv.R.Krishna Raj, the learned counsel for the 1[st] respondent. 5. Order XLVII Rule of CPC provides the power of review of Judgment and it is set out herein below for ready reference : “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 of Small Causes, 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 decree was RP.460/2020 4 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 order. (2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review. [Explanation- The fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment.] 6. A review petition can be entertained only on the ground of error apparent on the face of record and not on any ground. The scope of review jurisdiction has been considered by the Apex Court and this Court in so many cases and the law on this point is well settled. Some of the decisions in which the scope of review has RP.460/2020 5 elaborately considered by the Hon'ble Supreme Court are referred hereunder: ## 7. In **M/s. Thungabhadra Industries Ltd. v.** ## **The Government of Andhra Pradesh represented by the Deputy Commissioner of Commercial Taxes, [AIR 1964 (SC 1372)],** it is observed as follows: “A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error. We do not consider that this furnishes a suitable occasion for dealing with this difference exhaustively or in any great detail, but it would suffice for us to say that where without any elaborate argument one could point to the error and say here is a substantial point of law which stares one in the face, and there could reasonably be no two opinions entertained about it, a clear case of error apparent on the face of the record would be made out.” ## _8._ In _**Meera Bhanja v. Nirmala**_ **Kumari** _**Choudhury [AIR 1995 SC 455],**_ it was held that an error apparent on the face of record must be such an error which must strike one on mere looking at the record and would not require any long drawn process of reasoning on points where there may conceivably be two opinions. ## 9. In **Parsion Devi and others v. Sumitri Devi** **and others [(1997) 8 SCC 715],** it was held as under : RP.460/2020 6 ''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 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”. A review petition,it must be remembered has a limited purpose and cannot be allowed to be “an appeal in disguise”. ## 10. In **N.Anantha Reddy v. Anshu Kathuria and others [(2013) 15 SCC 534]** it was observed as follows: “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 of the matter on merits.” ## 11. In **Kamlesh Verma v. Mayawati and Others** **[ (2013) 8 SCC 320],** the following observation was made in paragraph 17: “ In a review petition, it is not open to the Court to RP.460/2020 7 reappreciate the evidence and reach a different conclusion, even if that is possible. Conclusion arrived at on appreciation of evidence cannot be assailed in a review petition unless it is shown that there is an error apparent on the face of the record or for some reason akin thereto.” 12. Here it is to be noted that the election process has not been set in motion so as to consider that the direction to make publication in a paper having wide circulation, as an intervention in the election process. Relying on the decisions in **West Bengal State Election Commission and Others v. Communist Party of India (Marxist) and Others** (2018 KHC 6630) and **Boddula Krishnaiah and Another v. State Election Commissioner, A.P and Others** (1996 KHC 779) the learned counsel for the petitioners would argue that publication of the notice in another paper as per the direction of this court is an interference to the election, which is not warranted. 13. Keeping in mind the principles laid down in the above decisions, when examined the present case it is obvious from the record that the receiver had taken only RP.460/2020 8 preparatory /preliminary steps so as to conduct the election of the society. The attempt of the receiver was only to intimate the members of the society to remit the arrears of subscription fees so as to finalize the list to complete the membership register. The receiver had only taken preparatory steps so as to conduct the election. Only after getting the membership renewed the election process will start as the list of the members have to be prepared by the receiver after collecting the arrears of the membership fees. The process of election will start only after the preparation of the membership register and therefore, the direction of this Court in OP.(C) No. 849 of 2020 is not an interdiction in the election process set in motion as projected by the petitioners. Court must act stringently to ensure that the election is to be conducted in a democratic way. Therefore, the contention raised by the counsel for the petitioner based on the above referred decisions is not sustainable. The administration of the society should necessarily be by an elected body. Now the receiver is in administration and management of the affairs of the society. In spite of the RP.460/2020 9 direction of this Court that all parties have to co-operate with the receiver for the conduct of a fair election, apparently filing of these type of petitions could only be termed as delay tactics adopted by the petitioners. 14. Applying the settled principles of review jurisdiction referred in the above decisions, I find no glaring mistake or grave error on the face of the record leading to miscarriage of justice to exercise the review jurisdiction. In short, I find that this petition does not disclose any ground to exercise the review jurisdiction and hence, interference is declined and the petition stands dismissed. **Sd/-** ## **SHIRCY V.** **JUDGE** **smm** RP.460/2020 10 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** |**ANNEXURE A1**|**TRUE COPY OF THE JUDGMENT IN O.P.(C)**| |---|---| ||**NO.1592/2017 AND JUDGMENT IN FAO**| ||**NO.193/2017 DATED 11.02.2020 PASSED BY THIS**| ||**HON'BLE COURT.**| |**ANNEXURE A2**|**TRUE COPY OF THE JUDGMENT IN O.P.(C)**| ||**NO.849/2020 DATED 26.05.2020 PASSED BY THIS**| ||**HON'BLE COURT.**|