Vijayakumar vs Santhakumari and others

**“CR”** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** ## **&** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 20TH DAY OF MARCH 2020 / 30TH PHALGUNA, 1941** **RP.No.216 OF 2019 IN RFA. 167/2018** **AGAINST THE ORDER/JUDGMENT IN RFA 167/2018 OF HIGH COURT OF KERALA** ## **REVIEW PETITIONER:** **VIJAYAKUMAR AGED 60 YEARS S/O. LATE GANGADHARAN, PALLITHAZHA, MAMPALLY, ANCHUTHENGU P.O, ATTINGAL-695 101** **BY ADVS. SRI.M.BALAGOVINDAN SRI.S.SHIBU KUMAR** ## **RESPONDENTS:** |**1**|**SANTHAKUMARI**| |---|---| ||**W/O. LATE GANGADHARAN, T.C. NO. 14/1684,**| ||**VILAYILVEEDU, KADAKKAL LINE, KUMARAPPURAM, MEDICAL**| ||**COLLEGE P.O, 695 548**| |**2**|**GEETHA G.S.**| ||**W/O. RAJMOHAN, HAIR LEKSHMI, VRA 26, PUNNAVILA,**| ||**ATTINGAL-P.O, 695 101**| |**3**|**LATHA G.S.**| ||**W/O. SARATHCHADRA BABU, PUTHENVILA VEEDU, T.C.**| ||**1/1324/POONTHI ROAD, KUMARAPURAM, MEDICAL COLLEGE**| ||**P.O-695 548**| |**4**|**SHEELA G.S.**| |---|---| ||**W/O. SARATHCHANDRA BABU, PUTHENVILA VEEDU, T.C.**| ||**1/1324/POONTHI ROAD, KUMARAPURAM, MEDICAL COLLEGE**| ||**P.O, 695 548**| |**5**|**AJITHKUMAR G.S**| ||**S/O.LATE GANGADHARAN, T.C. NO. 14/1684, VILAYIL**| ||**VEEDU, KADAKKAL LINE, KUMARAPURAM, MEDICAL COLLEGE**| ||**P.O-695 548**| RP.No.216 OF 2019 IN RFA. 167/2018 2 **6 GIRIJA G.S. W/O. JAYADEVAN, GIRIJA BHAVAN, KUMARAPURAM, MEDICAL COLLEGE POST, CHERUVACKAL VILLAGE, THIRUVANANTHAPURAM-695 548** **R1-5 BY ADV. SRI.J.JAYAKUMAR R6 BY ADV. SRI.K.B.PRADEEP** **THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 18-122019, THE COURT ON 20-03-2020 PASSED THE FOLLOWING:** RP216/2019INRFA167/2018 3 ## **K.Harilal & C.S.Dias, JJ.** ==================================== RP 216/2019 in RFA 167/2018 ==================================== Dated this the 20[th] day of March, 2020 ## **ORDER** ## **K.Harilal, J.** 1. The review petitioner herein is the appellant in RFA 167/2018, which was dismissed on 19.12.2018, by the judgment, which is sought to be reviewed. The aforesaid RFA was filed, challenging the judgment and decree, passed in OS 66/1998 of the Sub Court, Thiruvananthapuram. The said suit was one for partition filed by respondents 2 to 4 and 6 in the review petition and the review petitioner/appellant RP216/2019IN RFA167/2018 :5:- herein was the second defendant in the said suit. The review petitioner and respondents 2 to 6 are the children of the deceased Gangadharan and the 1[st] respondent herein. The plaint schedule property belonged to Gangadharan at the time of his death. According to respondents 2 to 4 and 6/plaintiffs, after the death of Gangadharan, the property devolved upon the review petitioner and respondents 1 to 6 and thereby they are entitled to get 1/7[th] share each. The review petitioner filed a written statement mainly contending that the suit is not maintainable in law, due to the institution of two earlier suits for partition as OS 66/1998 and OS 2418/1999. The court rejected the said contentions on a RP216/2019IN RFA167/2018 :6:- finding that the institution of the said suits does not preclude the plaintiff from instituting a fresh suit for partition, as OS 66/1998 was rejected, on default in payment of balance court fee and OS 2418/1999 was withdrawn with permission. The suit was decreed, as prayed for. The appeal also stands dismissed. 2. Now this review petition has been filed on the ground that the sixth respondent herein got ten and a half cents of land already from her deceased father on Gangadharan 23.9.1983 as per Ext.B1 settlement deed and the said settlement deed was executed, considering her share in the plaint schedule property. So, she is not entitled to get any share in the plaint schedule property. That RP216/2019IN RFA167/2018 :7:- apart, by Ext.B2, she has sold five cents out of ten and a half cents. Ext.B1 settlement deed executed by the father in favour of the sixth respondent and Ext.B2 sale deed executed by the sixth respondent were not available at the time of filing the appeal and hence this court could not adjudicate the sixth respondent's entitlement of share, though such a contention was also raised in the appeal. The sixth respondent, who is in possession of the document, did not produce the same. Therefore, this court as well as the court below failed to consider the recital in Ext.B1 document. Hence, the review petitioner has hereby produced the attested copy of Exts.B1 and B2 and the judgment RP216/2019IN RFA167/2018 :8:- dated 19.12.2018 is liable to be reviewed in the light of Exts.B1 and B2. 3. Heard Sri.Balagovindan, the learned counsel appearing for the review petitioner and Sri.K.B.Pradeep, the learned counsel appearing for the 6[th] respondent. 4. Sri.Balagovindan, the learned counsel for the review petitioner, advanced arguments exhaustively contending that a contention, which was not raised in the existing pleadings, can be taken as a ground to exercise the power under review, if the same is new and important and discovered subsequently, after the disposal of the suit/appeal. According to the learned counsel, the expression “new and important matter or evidence” contemplated under Order RP216/2019IN RFA167/2018 :9:- 47(1) of the CPC includes new and important contention, which was not raised in the existing pleadings also. 5. Per contra, Sri.K.B.Pradeep, the learned counsel for the sixth respondent opposed the said argument contending that the expression "discovery of new and important matter or evidence" does not include the discovery of new pleadings, which was not raised in the existing pleadings, even if it is new and important and discovered only after the disposal of suit/appeal. What is intended by the expression "matter or evidence" is a matter or evidence in support of the existing pleadings only. According to the learned counsel, there cannot be a rehearing or re-appreciation in review, on the RP216/2019IN RFA167/2018 :10:- basis of the new or important pleading, which was not raised in the existing pleadings. Otherwise, it will go beyond the scope and extent of the power of review, as provided under Order 47 Rule 1 of the CPC. 6. In view of the arguments at the bar, the question to be considered is, does the expression "discovery of new and important matter or evidence" envisaged under Order 47 Rule include the of new 1(c) discovery pleading, which was not raised in the existing pleadings and subsequently discovered after the disposal of the suit/appeal, as the case may be. 7. In _**M/s.Thungabhadra Industries Ltd. v. The Governor of Andhra Pradesh represented by the Deputy Commissioner of Commercial Taxes,**_ RP216/2019IN RFA167/2018 :11:- _**Anantapur**_ [AIR 1964 SC 1372], the Hon'ble Supreme Court held that “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 to the error and here is a point say substantial point of law which stares on 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 _**Patel Narshi Thakershi and Others v.**_ RP216/2019IN RFA167/2018 :12:- _**Pradyumansighji Arjunsighji**_ [AIR 1970 SC 1273], the Hon'ble Supreme Court further held that it is well settled that “the power to review is not an inherent power. It must be conferred by law either specifically or by necessary implication.” 9. In _**Meera Bhanja (Smt) v. Nirmala Kumari Choudhury (Smt)**_ [(1995) 1 SC 170], the Hon'ble Supreme Court held that 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 CPC. 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 the record must be such an error which must strike one RP216/2019IN RFA167/2018 :13:- 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. 10. In _**Aribam Tuleshwar Sharma v. Aribam**_ _**Pishak Sharma**_ [AIR 1979 SC 1047], the Hon'ble Supreme Court held that “the power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be RP216/2019IN RFA167/2018 :14:- exercised on the ground that the decision was erroneous on merits. That would be the province of a court of appeal. A power of review is not to be confused with appellate power which may enable an appellate court to correct all manner of errors committed by the subordinate court.” 11. In _**Haridas Das v. Usha Rani**_ [2006(2) KLT SN 21], the Hon'ble Supreme Court has held that “Order 47 Rule 1 of CPC does not postulate a rehearing of the dispute because a party had not highlighted all the aspects of the case or could perhaps have argued them more forcefully and/or cited binding precedents to the Court and thereby enjoyed a favourable verdict.” 12. In _**D.R.Somayajulu, Secretary, DLS and**_ RP216/2019IN RFA167/2018 :15:- ## _**others v. Attili Appala Swamy**_ [AIR 2015 SC 569], the Supreme Court held as follows: _“In the review petition, in our view, the High Court ignored the events and sequence of full participation of sons, daughters and grand children, including the 1[st] respondent before the competent authority. Court of review has only a limited jurisdiction circumscribed by the definitive limits fixed by the language used in Order XLVII Rule 1 CPC. 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 or order was made;_ RP216/2019IN RFA167/2018 :16:- _ii) mistake or error apparent on the face of the record; or_ _other iii) for any sufficient reason. Application for review on the ground of discovery of new material should be considered with great caution and should not be ” . granted very lightly_ ( _emphasis supplied)_ 13. On a combined reading of the aforesaid decisions in juxtaposition, we are of the view that the and extent of scope interference in exercise of the power of review, under Order 47 Rule 1 of CPC is very limited and the court cannot widen its jurisdiction by taking a liberal approach, on discovery of fresh pleading, which was not raised in the existing pleadings. Where RP216/2019IN RFA167/2018 :17:- a re-hearing or re-appreciation of evidence or findings on existing pleadings is impermissible, in exercise of power of review, pleading, which was not raised in the existing pleadings, even if it is new and important, can never be taken as a ground to invoke the power of review, under Order 47 Rule 1. Further, it gives rise to an inference that the expression “discovery of new and important matter or evidence” envisaged under Order 47 Rule 1 does not include new and important pleading, which was not raised in the existing pleadings. More clearly, the expression “new and important matter” means and intends new and important matter in proof or in support of existing pleadings only. That apart, it is RP216/2019IN RFA167/2018 :18:- to be borne in mind that pleadings are always subject to proof and no suit can be decreed on pleadings only, if traversed. Therefore, a fresh pleading, which was not subjected to proof cannot be taken as a ground to invoke the power of review, under Order 47 Rule 1 of the CPC. 14. The above view is supported by the decision in _**Abdul Sadiq v. Abdul Aziz**_ [ILR 1898 Allahabad Vol.XXI 152], which reads thus: _“The words “new and immportant 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 passed” have never been held to apply to the non-production of a ruling in_ RP216/2019IN RFA167/2018 :19:- _force when the decree was passed. They refer to evidence or other matter in the nature of evidence, and not to legal authority in existence, but not brought to the Court's notice.”_ _(emphasis supplied)_ 15. In the instant case, admittedly, the review has not raised a petitioner contention in the existing pleadings, that his father, deceased Gangadharan, while he was alive has executed Ext.B1 settlement deed in favour of the 6[th] respondent herein considering her share in the plaint schedule property and thereby she is not entitled to get a share in the plaint schedule property. So also, in this review petition, the review petitioner has no case that the execution of RP216/2019IN RFA167/2018 :20:- Ext.B1 settlement deed was not a matter within his knowledge, before the disposal of the original suit/appeal and he discussed it after the disposal of the original suit/appeal. On the other hand, the ground raised in this review petition is that Ext.B1 settlement deed and Ext.B2 sale deed were not available with him at the time of filing the appeal and the 6[th] respondent, who is in possession of the original documents, did not produce the same. It is needless to say, evidence, without pleadings, cannot be looked into. So, no purpose could have been served by producing the above said documents, which do not arise out of the existing pleadings, even in appeal. So also the review petitioner could have produced RP216/2019IN RFA167/2018 :21:- the certified copy of those documents and sought for an amendment to the pleadings in the suit. No such attempt was made by the review petitioner. 16. In view of the legal proposition held above, we find that the grounds raised in this review petition are not sufficient, to invoke the power of review, envisaged under Order 47 Rule 1 of the CPC. 17. This review petition fails and is dismissed accordingly. All the pending interlocutory applications will stand closed. **Sd/- K.Harilal, Judge** **Sd/- C.S.Dias, Judge** sl/sb. RP216/2019IN RFA167/2018 :22:- ## **APPENDIX** **PETITIONER'S EXHIBITS:** **EXHIBIT B1 THE ATTESTED COPY OF THE DEED DATED 23/09/1983** **EXHIBIT B2 ATTESTED COPY OF THE SAID SALE DEED DATED 17/8/2015** /TRUE COPY/ PS TO JUDGE