Sreedharan Pillai K.S. Sreekumar and Kamalamma Pillai SreeDevi v Pachiyamma Lalithamma Sheela Bhavan; Bhaskaran Nair; Sukumaran Nair; Vijayakumari Amma; Kamalamma Pillai Sreejaya

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **FRIDAY, THE 05TH DAY OF JULY 2019 / 14TH ASHADHA, 1941** ## **RP.No.494 of 2019 IN RFA. 804/2010** **AGAINST THE JUDGMENT IN RFA 804/2010 of HIGH COURT** **DTD. 11.1.2019** ## **REVIEW PETITIONERS/APPELLANTS:** - **1 SREEDHARAN PILLAI K.S.SREEKUMAR AGED 50 S/O. SREEDHARAN PILLAI, SREENILAYAM, KATHIPPARA, VELLARADA DESOM, NEYYATTINKARA, THIRUVANANTHAPURAM-695 016.** - **2 KAMALAMMA PILLAI K.S. SREEDEVI, AGED 53, D/O. SREEDHARAN PILLAI,SREENILAYAM, KATHIPPARA, VELLARADA DESOM, NEYYATTINKARA, THIRUVANANTHAPURAM-695 016.** **BY ADVS. SRI.S.V.RAJAN SRI.UNNIKRISHNA PANICKER M.K SMT.T.T.JAYANTHY SRI.A.N.PREMLAL** ## **RESPONDENTS/RESPONDENTS:** - **1 PACHIYAMMA LALITHAMMA SHEELA BHAVAN, KATHIPPARA, VELLARADA, THIRUVANANTHAPURAM-695 016.** - **2 BHASKARAN NAIR, S/O. MADHAVAN PILLAI, PANCHAMI, KATHIPPARA, VELLARADA, THIRUVANANTHAPURAM-695 016.** - **3 SUKUMARAN NAIR, S/O. MADHAVAN PILLAI, SURESH BHAVAN, THENGUMKODE, KALLARA DESOM, KALLARA VILLAGE-695016.** - **4 VIJAYAKUMARI AMMA, D/O. PACHIYAMMA, SHINU BHAVAN, NELLISSERY, VELLARADA, THIRUVANANTHAPURAM-695 016.** RP 494/2019 2 **5 KAMALAMMA PILLAI SREEJAYA, D/O. SREEDHARAN PILLAI, SREENILAYAM, KATHIPPARA, VELLARADA DESOM, NEYYATTINKARA, THIRUVANANTHAPURAM. NOW RESIDING AT FLAT NO.25, J.K. BUILDERS, KAVERI FLATS, NEAR PANCHAYAT ROAD, PERUNGADI P.O, CHENNAI-600 096.** **R1, R2 & R4 BY ADVS. SRI.V.G.ARUN (K/795/2004) SMT.INDULEKHA JOSEPH SRI.NEERAJ NARAYAN** **THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 02.07.2019, THE COURT ON 05.07.2019 PASSED THE FOLLOWING:** RP 494/2019 3 ## **ORDER** This review petition is preferred by the petitioners /appellants in R.F.A. No. 804 of 2010 seeking review of judgment dated 11[th] January, 2019 inter alia contending that there is an error apparent on the face of the record. 2. The short facts for consideration of this petition is as follows: The appeal has been preferred by the petitioners challenging the judgment in O.S. No. 202 of 2007 of Sub Court, Neyyattinkara dated 6.4.2010. The appeal was admitted on 12.1.2011 and thereafter posted for steps to issue notice to the respondents and for payment of balance court fee. But the petitioners/appellants have failed to take steps to issue notice to the respondents 3 and 5. They also failed to remit the balance court fee. After various dates of posting, the appeal was dismissed RP 494/2019 4 on 11.1.2019 for default. Thereafter, M J C No. 42 of 2019 was filed to re-admit the appeal but the same was objected by the contesting respondents. On 8[th] March 2019, the M J C was dismissed on merits. Thereafter, this review petition has been filed to review the judgment dated 11.1.2019 in the appeal. On a perusal of the records, it could be seen that the appeal was dismissed for the reason that there was no representation for the petitioners on 11.1.2019, and also for the reason that they have not taken steps to issue notice to the respondents 3 and 5.The balance court fee was also not remitted Therefore, for the various reasons stated above, the appeal was dismissed. Now, the learned counsel for the petitioners would argue that as the appeal was dismissed for non-remittance of the balance court fee, the judgment has to be reviewed. It was also urged that on failure to pay balance court fee, the appeal suit ought to have been rejected. Hence, this petition for review. This application is vehemently RP 494/2019 5 opposed by the contesting respondents. 3. Heard the learned counsel for the petitioners as well the learned counsel for the respondents. 4. At the outset it is to be noted that this petition is to review the Judgment in the appeal and not to review the order in MJC 42/2019 filed to re-admit the appeal. It is well settled that review petition is not an appeal and hence the same have to be strictly confined to the scope and ambit of Order 47 Rule 1 of Code of Civil Procedure . Only if there is an error apparent on the face of record , an application to review the same can be allowed. In Thungabhadra Industries Ltd. v. Government of Andhra Pradesh (AIR 1964 SC 1372), the scope of review has been considered by the Supreme Court and observed in para 11 as follows : “(11) …......... 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 RP 494/2019 6 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.” 5. The Apex Court in Board of Control for Cricket, India v. Netaji Cricket Club (2005 SC 592), observed in para 89 that Order 47 Rule 1 of the Code provides for fling an application for review. Such an application for review would be maintainable not only upon discovery of new and important piece of evidence or when there exists an error apparent on the face of the record but also if the same is necessitated on account of some mistake or for any other sufficient reason. It was further observed in para 90 as follows: RP 494/2019 7 “90. Thus, a mistake on the part of the court which would include a mistake in the nature of the undertaking may also call for a review of the order. An application for review would also be maintainable of there exists sufficient reason therefor. What would constitute sufficient reason would depend on the facts and circumstances of the case. The words 'sufficient reason' in O.47, R.1 of the Code is wide enough to include a misconception of fact or law by a Court or even an Advocate. An application for review may be necessitated by way of invoking the doctrine “actus curiae neminem gravabit.” ” 6. In N. Anantha Reddy v. Anshu Kathuria [(2013) 15 SCC 534] the Supreme Court has pointed out 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 RP 494/2019 8 does not permit rehearing of the matter on merits''. 7. So, what could be gathered from the principle enunciated by the Apex Court while dealing with the provision for review petition ,in short, is that, if only a mistake or error is glaring at the face of the record or there is other sufficient reason, an application for review can be entertained. 8. Coming to the facts of this case, it is to be noted that after dismissal of the appeal, M.J.C. No. 42 of 2019 was filed to readmit the appeal dismissed for default alleging that due to heavy traffic block near the gate of this Court the counsel was held up and hence could not appear before the court and represent the matter. The said petition was dismissed as it was found that there was absolutely no merits in the submission made by the learned counsel to re-admit the appeal. In fact the appeal was not dismissed for the sole ground that the balance court fee was not remitted. But it was dismissed mainly due to the failure to take steps to issue notice RP 494/2019 9 to the respondents 3 and 5 as well for non representation on behalf of the appellants/petitioners on the posting date . Since the petition to re-admit the appeal was also dismissed, it is quite clear that the dismissal was mainly for the reason that the petitioners were not vigilant in prosecuting the appeal which was filed in the year 2010 and admitted on 12.1.2011. The dismissal of the appeal was only on 11.1.2019 as there was no representation for the appellants/petitioners on the posting date as well on the previous date and also for not remitting the process to issue notice to respondents 3 and 5. The failure to remit the balance court fees was not the sole reason for dismissal of the appeal. On a perusal of the records, it could be seen that no error is glaring on the face of the record so as to allow this petition and review the judgment dated 11.1.2019. Almost after 50 days of dismissal of the M J C 42 of 2019, this petition has been filed with the balance court fees. But in my opinion the facts referred above does not indicate as an RP 494/2019 10 error apparent on the face of the record or sufficient reason to review the judgment as sought for by the appellants/petitioners. Therefore, I find that there is absolutely no justifiable reason to entertain this petition. Rejected. No costs. (As this petition stands rejected, return the balance court fee remitted by the petitioners on 2.4.2019 along with this petition. ) **Sd/-** **SHIRCY V.** **JUDGE** sb