Thressia and others v. George and others

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Harilal
Judgment Date: 2014-10-10
Court Decision / Holding: The review petition is dismissed.
Final Disposition: Dismissed

Parties to the Case

Appellants / Petitioners

Thressia
Mary
Philomina
Reetha
Elsy
Emily
Francis
Philo
Claris

Respondents

George
Thomas
Rossy
Pauloose
Lima
Paul
Leena
Shaji
Simon
Maggy
Antony
Xavier
Rocky
Julamma
Omana Xavier
Pauloose (second)
Joseph John

Legal Representation & Advocates

Counsels for Petitioners

• Adv. Sri. Dinesh R. Shenoy

Counsels for Respondents

• Sri A. Joseph George
• Sri P.B. Krishnan

Case Synopsis & Summary

This is a review petition (RP No. 465 of 2014) in RSA 711/2007 filed by nine appellants against the judgment in Regular Second Appeal, arising from O.S. No.162/1993 before the Munsiff’s Court, North Paravur, and subsequently appeal to the Additional District Court. The petition contends that the earlier judgment suffers from error apparent on the face of the record, misapprehends pleadings and evidence, and wrongly interprets statutory provisions, including the definition of “person” under Section 2(43) of the Land Reforms Act and the precedent Mariam v. Choolan. Citing well-known Supreme Court precedents (Bhanja v. Nirmala Kumari Choudhury; M/s. Thungabhadra Industries Ltd. v. Government of Andhra Pradesh; Lily Thomas v. Union of India), the petition argues that review is not an appeal and must be confined to correcting an error apparent on the record; it also seeks admission of a death/burial certificate of late Paily as additional evidence. The respondents, represented by their counsel, contend the petition is an impermissible attempt to re-argue the Regular Second Appeal and that there is no error apparent on the face of the record. The High Court, after considering the grounds, finds no such error and dismisses the petition as an appeal in disguise. The order is passed by Justice K. Harilal, Single Judge.

Provisions of Law Cited

Order 47 Rule 1, CPCSec. 2(43) of the Land Reforms ActArt. 226, Constitution of India

Legal Doctrines & Maxims

Review is not an appeal in disguise
Error apparent on the face of the record

Submissions & Arguments

Contentions of Appellants / Petitioners

The petition asserts that the Regular Second Appeal judgment suffers from error apparent on the face of the record and non-consideration of crucial pleadings and evidence, including misinterpretation of Sec. 2(43) of the Land Reforms Act and the definition of 'person'. It contends that the interpretation in Mariam v. Choolan (1979 KLT 650) is erroneous; seeks admission of I.A.923/2014 for receiving the death and burial certificate of late Paily as additional evidence; argues that the grounds amount to an error that warrants review under Order 47 Rule 1.

Contentions of Respondents

The respondents argue that the petition is essentially an attempt to re-argue the Regular Second Appeal and that there is no error apparent on the face of the record; they rely on principles from Bhanja v. Nirmala Kumari Choudhury, M/s. Thungabhadra Industries Ltd. v. Government of Andhra Pradesh, and Lily Thomas v. Union of India to contend that review is strictly confined to correcting an apparent error, not an appeal in disguise.

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
Bhanja v. Nirmala Kumari Choudhury	(1995) 1 SCC 170	Positive	Cited to define the scope of Order 47 Rule 1 and the nature of review as not an appeal.
M/s. Thungabhadra Industries Ltd. v. Government of Andhra Pradesh	AIR 1964 SC 1372	Positive	Cited for the proposition that a review is for correcting an apparent error, not a disguised appeal.
Lily Thomas v. Union of India	AIR 2000 SC 1650	Positive	Reiterates that review is not an appeal in disguise.
Mariam v. Choolan	1979 KLT 650	Distinguished	Court states that the interpretation in Mariam v. Choolan is erroneous and distinguishes it from the present case.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL** **FRIDAY, THE 10TH DAY OF OCTOBER 2014/18TH ASWINA, 1936** **RP.No. 465 of 2014 () IN RSA.711/2007 ---------------------------------------** **AGAINST THE JUDGMENT IN RSA 711/2007 of HIGH COURT OF KERALA DATED 21-05-2014.** **REVIEW PETITIONER(S)/APPELLANTS:** **--------------------------------** **1. THRESSIA, AGED 77 YEARS, W/O. JOSEPH, KALLUPURATH, PALLIPURAM KARA, PALLIPURAM VILLAGE, KOCHI TALUK (DIED)** **2. MARY, AGED 72 YEARS, D/O. MARIYAM, RANDUTHAIKKAL, -DONOW RESIDING AT SRAMBICKAL HOUSE, NEAR ANGAMALY POLICE STATION.** **3. PHILOMINA, AGED 69 YEARS, D/O. MARIYAM, -DO- AND W/O. SAURIYAR, MUNDAKKAL HOSE, CHOORNIKARA, ALUVA VILLAGE.** **4. REETHA, AGED 68 YEARS, W/O. THOMAS, CHULLIKKOOTTATHIL, NETHAJI ROAD, ALUVA VILLAGE.** **5. ELSY, AGED 62 YEARS, W/O. FRANCIS, MUNDAKKAL HOUSE, NETHAJI ROAD, ALUVA VILLAGE.** **6. EMILY, AGED 72 YEARS, W/O. LATE PAUL, RANDUTHIKKAL, PALLIPURAM KARA, PALLIPPURAM VILLAGE, KOCHI TALUK.** **......2** **-2-** **7. FRANCIS, AGED 46 YEARS, S/O. EMILY, RANDUTHIKKAL, PALLIPURAM KARA, PALLIPPURAM VILLAGE, KOCHI TALUK.** **8. PHILO, AGED 56 YEARS, D/O. EMILY, RANDUTHIKKAL, PALLIPURAM KARA, PALLIPPURAM VILLAGE, KOCHI TALUK.** **9. CLARIS,AGED 54 YEARS, D/O. EMILY, RANDUTHIKKAL, PALLIPURAM KARA, PALLIPPURAM VILLAGE, KOCHI TALUK.** **BY ADV. SRI.DINESH R.SHENOY** **RESPONDENT(S)/RESPONDENTS AND ADDL. RESPONDENTS: ------------------------------------------------** **1. GEORGE, AGED 78 YEARS, S/O. BANAVANTHURU, PANAKKAPARAMBIL, PALLIPPURAM KARA, PALLIPURAM VILLAGE, KOCHI TALUK (DIED)** **2. THOMAS, S/O. MARIYAM, RANDUTHIKKAL, PALLIPPURAM KARA, PALLIPURAM VILLAGE, KOCHI TALUK.** **3. ROSSY, AGED 69, W/O. VARGHESE, POLLAYIL HOUSE, ETTUMANOOR, PUTHENKURUSSU.** **4. PAULOSE, AGED 50 YEARS, S/O. VARGHESE, POLLAYIL HOUSE, ETTUMANOOR, PUTHENKURUSSU.** **5. LIMA, AGED 48 YEARS, D/O. VARGHESE, POLLAYIL HOUSE, ETTUMANOOR, PUTHENKURUSSU.** **6. PAUL, AGED 45 YEARS, S/O. VARGHESE, POLLAYIL HOUSE, ETTUMANOOR, PUTHENKURUSSU.** **.....3** **-3-** ## **7. LEENA, W/O. LATE GEORGE BANAVANTHURU, PANAKKAPARAMBIL, PALLIPURAM KARA, PALLIPURAM VILLAGE, KOCHI TALUK.** **8. SHAJI, S/O. LATE GEORGE BANAVANTHURU, PANAKKAPARAMBIL, PALLIPURAM KARA, PALLIPURAM VILLAGE, KOCHI TALUK.** ## **9. SIMON,** **S/O. LATE GEORGE BANAVANTHURU, PANAKKAPARAMBIL, PALLIPURAM KARA, PALLIPURAM VILLAGE, KOCHI TALUK.** **10. MAGGY, W/O.P.V. JOY, PUTHENPADATH, PALLIPORT P.O. - 683 515.** ## **11. ANTONY,** **S/O. JOSEPH, KALLUMPURATH, PALLIPORT P.O. - 683 515.** ## **12. XAVIER,** **S/O. JOSEPH, KALLUMPURATH, ANKAMALY P.O. - 683 515.** **13. ROCKY, S/O. JOSEPH, KALLUMPURATH, ANKAMALY P.O. - 683 515.** **14. JULAMMA, W/O.JOSE, PANAKKAPARAMBIL, ANKAMALY P.O - 683 515.** **15. OMANA XAVIER, PADAMADUMMAL, PALLIPORT P.O - 683 515.** **16. PAULOSE, S/O. JOSEPH, KALLUMPURATH, PALLIPORT P.O - 683 515.** **17. JOSEPH JOHN, KALLUMPURATH, PALLIPORT P.O - 683 515.** **R BY SRI.A.JOSEPH GEORGE R BY SRI.P.B.KRISHNAN** **THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 10-10-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **K. HARILAL, J.** **-----------------------------------------------------R.P.No.465 of 2014 in R.S.A. No.711 of 2007-B** **-----------------------------------------------------Dated this the 10[th] day of October, 2014** ## **ORDER** The review petitioners are the appellants in the above Regular Second Appeal and the respondents are the respondents therein. 2. The above R.S.A. is filed against the judgment in A.S.No.237/06 on the files of the Additional District Court, North Paravur, on appeal from O.S.No.162/1993 on the files of the Munsiff's Court, North Paravur. This review petition is filed mainly on the ground that the judgment suffers from error apparent on the face of the record and non-consideration of crucial facts, including the pleadings and evidences and is based on ## **R.P.No.465 of 2014** -: 2 :- an erroneous appreciation of the facts and laws and judicial decisions cited by the review petitioners at the time of argument. It is contended that the conclusions and findings in the judgment are contrary to the law discussed in paragraphs-11 and 12 of the judgment. The interpretation of statutes and the decision in Mariam v. Choolan (1979 KLT 650) are erroneous and contrary to the law discussed therein. On the discussions in paragraphs 11 and 12, the Court ought to have held that even if Paily had died prior to the commencement of the Land Reforms Act, his right as a 'Kudikidappukaran' entitled to fixity of tenure would still devolve upon all his legal heirs together and not upon one among them. The court below went wrong in interpreting the definition of “person” envisaged in Sec.2(43) of the Land Reforms Act. The court below went wrong in disallowing I.A.No.923/2014 filed for receiving the death and burial certificate of late Paily. The death certificate produced by the ## **R.P.No.465 of 2014** -: 3 :- petitioners in the Second Appeal ought to have been received as additional evidence. 3. In view of the grounds raised in the Memorandum of Review Petition, I am of the opinion that the first question to be considered is whether this review petition is maintainable in view of the grounds raised above. 4. In Bhanja v. Nirmala Kumari Choudhury [(1995) 1 SCC 170], the Supreme Court while considering the scope and extent of the power under Order 47 Rule 1 of the CPC, held as follows: “The review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1. The review petition has to be entertained only on the ground of error apparent on the face of the record and not on any other ground. 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 **R.P.No.465 of 2014** -: 4 :- drawn process of reasoning on points where there may conceivably be two opinions. The limitation of powers of court under Order 47 Rule 1 is similar to the jurisdiction available to the High Court while seeking review of the orders under Art.226.” 5. In M/s. Thungabhadra Industries Ltd., v. Government of Andhra Pradesh, represented by Dy. Commissioner of Commercial Taxes (AIR 1964 SC 1372), the Supreme Court held that: “A review is by no means an appeal in disguise whereby an erroneous decision is rebuilt and corrected, but lies only for a correction of an apparent error.” Again in Lily Thomas v. Union of India (AIR 2000 SC 1650), the Apex Court has reiterated the above legal position and once again held that “the review is by no means an appeal in disguise”. So, in view of the legal position, let us examine the grounds raised in the **R.P.No.465 of 2014** -: 5 :- instant case. 6. Apparently, I find that even though in the Memorandum of Regular Second Appeal it is stated that there is error apparent on the face of the record, going by the grounds raised, I find that the review petitioners have failed to point out any error apparent on the face of the record. It is the case of the review petitioners that the interpretation of the statutes in the decision in Mariam v. Choolan (1979 KLT 650) is erroneous. So also, conclusions and findings in the judgment are contrary to the law discussed in paragraphs-11 and 12 of the judgment. The court ought to have allowed I.A. No.923/2014 filed for receiving the death and burial certificate of late Paily in the R.S.A. 7. On an analysis of the grounds, I find that all these grounds are based on erroneous appreciation of evidence, for which review is impermissible. The review petitioners have miserably failed to point out **R.P.No.465 of 2014** -: 6 :- any error apparent on the face of the record or any other ground warranting review of the earlier findings. The grounds raised in the Memorandum of Review Petition are not errors that would strike one on mere looking at the record and require long drawn process of reasoning on points. In short, this review petition is an appeal in disguise. Therefore, I am inclined to dismiss this review petition and this review petition is dismissed accordingly. Sd/- ## **(K. HARILAL, JUDGE)** ## **Nan/** //true copy// P.S. to Judge