Full Judgment
(Prayer: Review Petition filed under Order 47 Rules 1 and 2 of the Code of Civil Procedure, to review the judgment and decree dated 15.02.2012 made in S.A.(MD)No.112 of 2008 by this Court.)
1. The review applicant is the appellant in S.A.(MD)No.112 of 2008 and this Review Application is directed against the judgment of this Court, dated 15.02.2012, to review the same.
2. For the sake of convenience, the parties are referred to, according to their litigative status before the trial Court.
3. Nutshell facts that lead to the filing of the present Review Application, could be succinctly portrayed thus:
3.1. The suit in O.S.No.474 of 2002 on the file of the I Additional Sub Judge, Madurai, was filed plaintiff for partition of half share in the suit items and for rendition of accounts. The suit properties are 18 in number. The properties belonged to two sisters, namely, Chinnamadiammal and Chellammal, having been allotted to them in a suit for partition.
3.2. The plaintiff and the defendant are the children of one Gurusamy, predeceased son of Chinnamadiammal, who died on 1976 leaving them as her legal heirs. Chellammal died issueless on 3.2.2000 and her husband predeceased her. The plaintiff and the defendant alone are the legal heirs to Chinnamadiammal as well as Chellammal. They have succeeded to her estate. The plaintiff is in joint possession of the suit property along with the defendant.
3.3. According to the defendant, the suit items 1 to 4 belonged to Ammapillai @ Chinnamadiammal and the items 7 to 17 belonged to Chellammal. Item (7) to an extent of 69 cents and item (8) were sold by Chellammal and hence, not available. Item (6) of the property was sold by the Defendant in or about 1996 or 1997. Guruvammal, the mother of the plaintiff and the defendant filed a suit in O.S.No.151 of 1964 for herself and as guardian of the plaintiff for partition and separate possession against the defendant as first defendant in the suit and against Chinnamadiammal and one Narayana Konar.
3.4. A preliminary decree was passed allotting a share of 1/6th to the Plaintiffs each and 1/6th to the first defendant and 3/6th share to Chinnamadiammal. A final decree was also passed in I.A.No.268 of 1972, pursuant to the preliminary decree.
3.5. Chinnamadiammal filed a suit in O.S.No.228 of 1964 for partition and separate possession of her share against Chellammal and her husband Ramasamy Konar. A compromise final decree was passed, in which, items 1 to 4 were allotted to Chinnamadiammal and the rest of the properties, namely, items 7 to 15 were allotted to Chellammal. Item 18 in the present suit was allotted to both Chinnamadiammal and Guruvammal. The Wakf Board had filed a suit and execution petition in E.P.No.45 of 1999 in O.S.No.387 of 1972 as regards Item 18 of the suit property and the same is pending.
3.6. Further, the defendant stated that Chinnamadiammal executed a registered Will dated 11.11.1964, bequeathing all her shares in the property that were to be allotted pending the suit in O.S.NO.151 of 1964 and O.S.No.228 of 1964 in favour of the defendant, who was a minor at that point of time. Similarly, Chellammal also executed a Will bequeathing her shares in the suit property in favour of the defendant by an unregistered Will dated 9.1.2000. Thus, the defendant has become the owner of the suit property.
3.7. It is further case of the defendant that the plaintiff clandestinely maneuvered to get joint patta in the name of the plaintiff and the defendant and on coming to know of the said fact, the defendant preferred an appeal to the Revenue Divisional Officer and the same was allowed, remitting the matter to Tahsildar for fresh enquiry. The plaintiff has filed a revision to the District Revenue Officer against the said order. The plaintiff is not entitled to any share or right in any of the items and therefore, the suit has to be dismissed.
3.8. By way of a reply, the plaintiff contended that the Wills executed by Chinnamadiammal and Chellammal respectively were not executed in a fit, sound and disposing state of mind and the truth, validity and binding effect of those Wills were also disputed.
3.9. In the additional written statement filed by the defendant, an additional plea that the defendant acquired right by ouster and adverse possession was also raised. It was also contended that the claim of the plaintiff was barred by limitation.
3.10. Before the trial Court, on behalf of the plaintiff, Ex.A1 to Ex.A10 were marked and PW.1 to PW.3 were examined. On behalf of the defendant, Exs.B1 to B47 were marked and D.W.1 to D.W.4 were examined.
3.11. On consideration of the oral as well as the documentary evidence, the trial Court found that the Will dated 11.11.1964 executed by Chinnamadiammal in favour of the defendant was not proved by the Plaintiff and the Will said to have been executed by Chellammal in favour of the Defendant was surrounded by suspicious circumstances and therefore, held that the genuineness of the Wills have not been proved.
3.12. Ultimately, the trial Court held that the Plaintiff is entitled to half share in the suit property items barring a portion of the property in item (6) and item 17 and granted a preliminary decree in favour of the plaintiff to the said extent and relegated the determination of mesne profits to a separate proceedings.
3.13. Aggrieved by the said judgment and decree of the trial Court, the defendant preferred an appeal in A.S.No.27 of 2007 on the file of the learned Principal District Judge, Madurai.
3.14. The first appellate Court concurred with the judgment of the trial Court in respect of the Will dated 11.11.1964, but found that the Will executed by Chellammal in favour of the Defendant was proved to be genuine and thus, reversed the decree of the trial Court and granted a preliminary decree insofar as items 1 to 5 and 18 of the suit properties are concerned and dismissed the suit as regards the items 5 to 17 of the suit properties. Challenging the same, the defendant filed the second appeal before this Court. The plaintiff has also filed a Cross Appeal as against the disallowed portion of the decree of the trial Court.
3.15. This Court, by judgment dated 15.02.2012, has held that the Will dated 9.1.2000 Ex.B25 was validly and duly executed by Chellammal and the said Will was not obtained by undue influence and therefore, upheld the finding of the first appellate Court and further held that there is absolutely no evidence to prove ouster and the Courts below have come to the right conclusion that the defendant has not perfected his title by adverse possession and accordingly, dismissed both the Second Appeal as well as the Cross Appeal.
3.16. Aggrieved by the dismissal of the second appeal, the defendant has now come forward with the present Review Application.
4. Mr.V.Sitharanjandas, learned Counsel for the review petitioner made the following submissions:
4.1. The prime contention that has been advanced by the learned Counsel for the review petitioner is that the Will dated 11.11.1964 executed by Chinnamadiammal and the Will dated 09.01.2000 executed by Chellammal in favour of the review petitioner/defendant have been duly executed and attested in accordance with the requirements of law.
4.2. The genuineness or the validity of the Wills has not been questioned by the respondent/plaintiff in specific terms in her pleadings and there was no material or evidence to entertain any doubt in the execution of the Wills.
4.3. Moreover, the testatrix in both the Wills were in a sound and disposing state of mind and there was no undue influence exercised on the testatrix Chinnamadiammal.
4.4. Further, the judgment of this Court has to be reviewed both on facts and on law, regarding the non-production of the original Will dated 11.11.1964 executed by Chinnamadiammal (Ex.B.12) and only a certified copy of the same has been marked before the trial Court.
4.5. The petitioner could not initiate probate proceedings under Section 237 of the Indian Succession Act, as the said issue was not considered by this Court while dismissing the second appeal.
4.6. Moreover, the execution of the said Will dated 11.11.1964, has not been disputed by the respondent and in such an event, the case of the review petitioner cannot be rejected.
5. Per contra, Mrs.Hema Sampath, learned Senior Counsel appearing for Mr.R.Subramanian, learned Counsel for the respondent has contended thus:
5.1. The review petitioner is the unsuccessful defendant in the partition suit in O.S.No.474 of 2002, on the file of the I Additional Sub Court, Madurai and the said suit has been decreed in favour of the respondent.
5.2. Though the review petitioner challenged the judgment and decree passed in favour of the respondent, the same would fail throughout the proceedings.
5.3. Notwithstanding the contention of the review petitioner that the respondent was disinherited from succeeding to the suit property by virtue of the Will dated 11.11.1964, alleged to have been executed by Chinnamadiammal, the said Will dated 11.11.1964 has not been produced before the Courts below and only a copy of the same has been marked as Ex.B.12 before the trial Court.
5.4. In those circumstances, the suit for partition of the half share of the properties came to be decreed.
5.5. This Court, by judgment dated 15.02.2012, has considered the insistent stand taken by the review petitioner for non-production of the original Will dated 11.11.1964 and rightly rejected the case of the review petition in the second appeal.
5.6. Further, the Special Leave Petition filed by the review petitioner before the Honourable Supreme Court in SLP(Civil) No.14719 of 2012, was also dismissed.
5.7. It is also brought to the notice of this Court that a final decree has also been passed on 28.11.2013, in I.A.No.151 of 2008 in O.S.No.474 of 2002 on the file of the Sub Court, Madurai. When that being so, the review petitioner was not justified in approaching this Court by way of present Review Application.
5.8. To put forth the point that a Review Court cannot sit in appeal over its own order and rehearing of the matter is impermissible in law, the learned Senior Counsel appearing for the respondent has placed reliance on the decision of the Honourable Supreme Court in Inderchand Jain (dead) through LRs. v. Motilal (dead) through LRs. reported in(2009) 14 Supreme Court Cases 663.
5.8. Hence, the learned Senior Counsel appearing for the respondent concluded that the question of review over the judgment of this Court does not arise at all and thus, prayed for the dismissal of the present Review Application.
6. I have considered the rival submissions and perused the materials available on record.
7. A Division Bench of this Court, consisting the Honourable Mr.Jusice N.Paul Vasanthakumar and myself, in Union of India, represented by the Senior Divisional Commerial Manager, Chennai Division, Southern Railway, Chennai - 600 003 and another v. The Registrar, Central Administrative Tribunal, Madras Bench, Chennai - 600 104 and another [Review Application No.163 of 2013, decided on 22.01.2014], has dealt with the scope of review and held as follows:
"6.The scope for review is borrowed from Order XLVII of CPC. Recalling the earlier order must be done only in exceptional circumstances as the resultant effect would set at naught the actions taken in compliance of the earlier orders. There must be an error apparent on the face of the record or some evidence, which though could not be produced after due diligence if produced, would result in a different decision or for any other sufficient reason, provided the person seeking review must prove that the existence of the document was not within his knowledge earlier. If even on the consideration of the document same decision is possible, the Courts would refrain to interfere.
7.In the judgment reported in (1999) 9 SCC 596 [AJIT KUMAR RATH vs. STATE OF ORISSA], the Hon ble Apex Court has in paragraphs 30 and 31 held as follows:
30.The provisions extracted above indicate that the power of review available to the Tribunal is the same as has been given to a counter under Section 114 read with Order 47 CPC. The Power is not absolute and is hedged in by the restrictions indicated in Order 47. The power can be exercised on the application of a person on 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 order was made. The power can also be exercised on the account of some mistake or error apparent on the fact of record or for any other sufficient reason. A review cannot be claimed or asked merely for a fresh hearing or arguments or correction of an erroneous view taken earlier, that is to say, the power of review can be exercised only for correction of a patent error of law or fact which stares in the face without any elaborate argument being needed for establishing it. It may be pointed out that the expression any other sufficient reason used in order 47 Rule 1 means a reason sufficiently analogous to those specified in the rule. 31.Any other attempt, except an attempt to correct an apparent error or an attempt not based on any ground set out in Order 47, would amount to an abuse of liberty given to the Tribunal under the Act to review its judgment .
8. In the judgment reported in (2013) 7 SCC 615 [KHELA BANERJEE AND ANOTHER vs. CITY MONTESSORI SCHOOL AND OTHERS], the Hon'ble Apex Court dismissed the Application for Review holding that the error was not germane to the controversy adjudicated.
9. In the judgment reported in (1980) 2 SCC 167 [NORTHERN INDIA CATERERS (INDIA) LTD. vs. Lt. GOVERNOR OF DELHI] in paragraph 9 the Hon'ble Apex Court held as follows:
Now, besided the fact that most of the legal material so assiduously collected and placed before us by the learned Additional Solicitor General, who has now been entrusted to appear for the respondent, was never brought to our attention when the appeals were heard, we may also examine whether the judgment suffers from an error apparent on the face of the record. Such an error exists if of two or more views canvassed on the point it is possible to hold that the controversy can be said to admit of only one of them. If the view adopted by the court in the original judgment is a possible view having regard to what the record states, it is difficult to hold that there is an error apparent on the face of the record
10. In yet another judgment reported in (2013) 8 SCC 320 [KAMLESH VERMA vs. MAYAWATI AND OTHERS], the Hon ble Apex Court after examining various judgments passed earlier has held as follows:
12. This Court has repeatedly held in various judgments that the jurisdiction and scope of review is not that of an appeal and it can be entertained only if there is an error apparent on the face of the record. A mere repetition through different counsel, of old and overruled arguments, a second trip over ineffectually covered grounds or minor mistakes of inconsequential import are obviously insufficient..........
In the above judgment, the Hon'ble Apex Court has laid down the principles as under:
19. Review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order XLVII Rule 1 of CPC. In review jurisdiction, mere disagreement with the view of the judgment cannot be the ground for invoking the same. As long as the point is already dealt with and answered, the parties are not entitled to challenge the impugned judgment in the guise that an alternative view is possible under the review jurisdiction.
Summary of the Principles:
20. Thus, in view of above, the following grounds of review are maintainable as stipulated by the statute:
20.1.When the review will be maintainable:-
(i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him;
(ii) Mistake or error apparent on the face of record;
(iii) Any other sufficient reason. The words any other sufficient reason has been interpreted in Chhajju Ram vs. Neki, AIR 1922 PC 112 and approved by this Court in Moran Mar Basselios Catholicos vs. Most Rev. Mar Poulose Athanasius and Others (1955) 1 SCR 520, to mean a reason sufficient on grounds at least analogous to those specified in the rule . The same principles have been reiterated in Union of India Vs Sandur Manganese and Iron Ores Ltd. and Ors., JT (2013) 8 SC 275.
20.2. When the review will not be maintainable:
(i) A repetition of old and overruled argument is not enough to reopen concluded adjudications.
(ii) Minor mistakes of inconsequential import.
(iii) Review proceedings cannot be equated with the original hearing of the case.
(iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice.
(v) A review is by no means an appeal in disguise whereby an erroneous decision is re-heard and corrected but lies only for patent error.
(vi) The mere possibility of two views on the subject cannot be a ground for review.
(vii) The error apparent on the face of the record should not be an error which has to be fished out and searched.
(viii) The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition.
(ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived.
11. Upon perusal of the order dated 16.04.2012, we find that the merger of posts from 01.01.2006 was raised repeatedly before all forums including this Court, and the same was rejected. The Tribunal had considered that the juniors of the second respondent were promoted by proceedings dated 04.05.2006 and therefore after the expiry of the penalty, the second respondent was entitled to be promoted as Deputy Chief Ticket Inspector and fixed in the same scale of pay of 5500-9000 with effect from 22.09.2008. No additional material or new argument has been put forward before us by the writ petitioners.All that is sought is a change of opinion on the same facts and documents. Once a point has been raised and negatived, the same point cannot be argued under the guise of review. The Review Application cannot be used as a tool for change of opinion. This Application squarely falls in the second limb of the principles laid down by the Hon'ble Apex Court in the judgment reported in (2013) 8 SCC 320 [KAMLESH VERMA vs. MAYAWATI AND OTHERS].
8. Keeping in mind the dictum laid down in the decisions of the Honourable Supreme Court as dealt with in the aforesaid judgment of the Division Bench of this Court, this Court considered the rival submissions made in the present Review Application.
9. This Court, by judgment dated 15.02.2012, has elaborately dealt with the contentions raised by either side on the merits of the case and found that the judgment of the first appellate Court is sustainable. Further, this Court held that the Will dated 9.1.2000 - Ex.B25 was validly and duly executed by Chellammal and the said Will was not obtained by undue influence and therefore, the finding of the first appellate Court was upheld, besides there is absolutely no evidence to prove ouster and the Courts below have come to the right conclusion that the defendant has not perfected his title by adverse possession and accordingly, dismissed the second appeal. Aggrieved thereby, the present Review Application has been focussed on various grounds.
10. As already pointed out, the scope of review is very narrow and the Review Court cannot sit in appeal over its own order and rehearing of the matter is impermissible in law, as held by the Honourable Supreme Court in Inderchand Jain case (cited supra).
11. A vital aspect that revolves around in the case on hand, is that though a final decree has been passed on 28.11.2013, in I.A.No.151 of 2008 in O.S.No.474 of 2002 on the file of the Sub Court, Madurai, the review petitioner has approached this Court now only to review the judgment passed by this Court in S.A.(MD)No.112 of 2008, dated 15.02.2012. The review petitioner does not whisper anything about the delay occurred in filing the present review petition belatedly, more particularly, after the passing of final decree. In these circumstances, this Court has no hesitation to arrive at a conclusion that the review petitioner has not made out a case in this review petition.
12. Furthermore, the attempt on the part of the review petitioner to challenge the judgment of this Court passed in the second appeal before the Honourable Supreme Court also ended in dismissal of the Special Leave Petition, in which, the review petitioner raised similar grounds.
13. Upon consideration of all the materials available on record, this Court is of the considered opinion that the review petitioner miserably failed in his attempt to review the judgment passed in S.A.(MD)No.112 of 2008, dated 15.02.2012 and thus, the judgment of this Court passed in the second appeal does not call for any interference in the present review petition.
14. In the result, this Review Application fails and the same stands dismissed. Consequently, the connected miscellaneous petition is also dismissed. No costs.