Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MRS. JUSTICE ANNIE JOHN TUESDAY, THE 29TH DAY OF OCTOBER 2019 / 7TH KARTHIKA, 1941 AGAINST THE ORDER DATED 10.08.2018 IN I.A.NO.4121/2016 IN I.A.NO.2435/2016 IN OP 23/2013 OF FAMILY COURT, IRINJALAKUDA PETITIONERS/ RESPONDENTS 2 & 3 : 1 JOS, AGED 44 YEARS, S/O PAZHAYEDATHUPARAMBIL PETER, PERAMANGALAM DESOM, VILLAGE AND P.O, THRISSUR - 680 545. 2 ROSILY, W/O PAZHAYEDATHUPARAMBIL PETER, PERAMANGALAM DESOM, VILLAGE AND P.O, THRISSUR - 680 545. BY ADV. SRI.DILIP J. AKKARA RESPONDENTS/ PETITIONER/ 1ST RESPONDENT : 1 LALU, S/O CHIRAMMEL AUGUSTINE, IRINJALAKUDA DESOM AND P.O, MANAVALASSERY VILLAGE, MUKUNDAPURAM TALUK, THRISSUR-680121, REP.BY POWER OF ATTORNEY HOLDER JOY, S/O.CHIRAMMEL AUGUSTINE, IRINJALAKUDA DESOM AND P.O, MANAVALASSERY VILLAGE, MUKUNDAPURAM TALUK, THRISSUR - 680 121. 2 SHEEJA, D/O.PAZHAYEDATHUPARAMBIL PETER, PERAMANGALAM DESOM, VILLAGE AND P.O, THRISSUR - 680 545. (2ND RESPONDENT IS DELETED FROM THE PARTY ARRAY AS PER ORDER DATED 07/06/2019 IN I.A.NO.1/2019 IN OP (FC)) R1 BY ADV. SRI.T.N.MANOJ THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON ON 29-10-2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING :
JUDGMENT
K.Harilal, J.
The petitioners herein are the respondents 2 &
3 in OP.No.166/2012 on the files of the Family Court, Iringalakkuda as well as the respondents 2 & 3 in IA.No.4121/2016 in IA.No.2435/2016 filed in the said OP. The respondent herein filed IA.No.2435/2016 to send a mobile phone and a CD containing the conversation between the power of attorney holder of the respondent, his brother, and the 2nd petitioner and her daughter through phone for expert examination under Section 79
(A) of the Information Technology Act. According to the respondent, the said conversation was recorded and formatted in the mobile phone so also recorded in a CD and the said documents have to be sent for expert examination under Section 789 A of the Information Technology Act.
2. The petitioners herein opposed the said
application contending that the persons allegedly made conversation are strangers to the litigation and the CD cannot be sent for comparison and expert opinion, without certification under Section 65 (B) of the Indian Evidence Act. After considering the said contention, the Family Court accepted the objection raised by the petitioners herein and dismissed the application on a finding that the respondent has not complied with the statutory requirements under Section 65B of the Indian Evidence Act. When a new officer has come to the office, the respondent herein has filed IA.No.2435/2016 under
Order 47 rule 1 of the CPC seeking to review the earlier
order dismissing IA.No.2435/2016. The petitioners
herein opposed the said application contending that there is no apparent error or mistake on the face of the record calling for any review and the grounds raised in the application filed to review the earlier order would go beyond the scope and extent of grounds enumerated under Order 47 rule 1 of the CPC. So also, there is an inordinate delay in filing the petition.
3. After considering the said rival pleas, the
Family Court allowed IA.No.4121/2016 and set aside the earlier order passed by the Predecessor Judge in IA.No.2435/2016 in exercise of the jurisdiction and power conferred under Order 47 rule 1 of the CPC. The legality and correctness of the findings, whereby the Family Court reviewed the earlier order are assailed in this OP (FC).
4. Heard the learned counsel for the petitioner and the learned counsel for the respondent.
5. The sum and substance of the arguments
advanced by the learned counsel for the petitioners is that the Family Court went wrong by exceeding the jurisdiction conferred under Order 47 rule 1 of the CPC and set aside the earlier order after re-appreciating both
facts and law, as that of an Appeal.
6. Per contra, the learned counsel for the
respondent advanced arguments contending that there was an error apparent on the face of the earlier order and the Family Court corrected the said order in exercise of the power conferred under Order 47 rule 1 CPC. Further, it is contended that the certification under Section 65B of
the Indian Evidence Act is not required for production of documentary evidence before the Family Court in view of Section 14 of the Family Court Act. In order to support the arguments, the learned counsel for the respondent cited the decisions in Pramod v. Louna [2019 (1) KLT 310], Shafhi Mohammad v. State of Himachal Pradesh [(2018) 2 SCC 801] and Mohinder Kumar Mehra v. Roop Rani Mehra and Others [(2018) 2 SCC 132].
7. In view of the arguments advanced at the
bar, the question to be considered is whether the Family Court has exceeded the jurisdiction and power conferred to the said court under Order 47 rule 1 of the CPC only.
8. What is the scope and extent of jurisdiction under Order 47 rule 1 CPC? Going by Order 47 rule 1 CPC, we find that the scope and extent of jurisdiction is
confined to 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 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 only.
9. In the instant case, the respondent has no
case that there is a 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 passed. But his case is that there is an error apparent on the face of the record warranting invocation of review power.
10. What is an error apparent on the face of the record? The Supreme Court in Meera Bhanja (Smt.) v. Nirmala Kumari Choudhury (Smt) [1995 (1) SCC 170] answered the aforesaid question thus :-
“An error apparent on the face of the 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. In other words an error, which has to be established by long-drawn process of reasoning on points where there may conceivably be two opinions can hardly said to be an error apparent on the face of the record.”
11. Further in Antony v. Chandni Chits (P) Ltd., [2003 KHC 536], the Supreme Court held as follows :- The review is not an opportunity for re-hearing or re- examining of the findings rendered by the court earlier.”
12. In M/s.Thungabhadra Industries Ltd V. The Government of Andhra Pradesh represented by the Deputy Commissioner of Commercial Taxes, Anantapur [AIR 1964 SC 1372], the Supreme Court held as follows :-
“There is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterised as vitiated by 'error apparent'. ''A review is by no means an appeal in disguise whereby an erroneous decision is re-built and corrected, but lies only for patent error... 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.''
13. We have examined the question raised
above in the light of the decisions referred above. Going by Ext.P4 impugned order, we find that the Predecessor Judge dismissed IA.No.2435/2016, on a finding that as per settled law, a documentary evidence, by way of an electronic record can be proved only in accordance with the procedure prescribed under Section 65B of the Indian
Evidence Act. But the respondent has not complied the said formality. So also, he failed to prove that the alleged conversation contained in the CD are relevant for proper adjudication of the issue, which should be decided in the original petition.
14. Going by Ext.P7 order passed in Review, by the Successor Judge, we find that the Successor Judge has reversed the reasonings, whereby the Predecessor Judge dismissed the said application, after re- appreciating the same. Further, after re-appreciating the nature of document, which is sought to be produced in
evidence, the Successor Judge found that his Predecessor has went wrong, by finding that the CD, which is sought to be produced, is a preliminary evidence and certification as provided under Section 65B of the Evidence Act is not required. The new reasoning of the Successor Judge contains in paragraph 6 to 13 of Ext.P7
judgment.
15. Prima facie, we find that the Successor
Judge has re-appreciated the facts and law and reversed the entire findings of the Predecessor Judge, by the erroneous exercise of the jurisdiction under Order 47 rule 1 CPC. What is reviewed by the Successor Judge, by Ext.P7 is not an error apparent on the face of the record in view of the decisions cited above. The Successor Judge reversed the findings of his Predecessor Judge by a long-drawn process of reasoning on point. The present Judge, after conducting a re-hearing, re-considered the findings rendered by his Predecessor, and reversed them, on a finding that his Predecessor's findings are false and unsustainable. To sum up, the present Judge has exceeded his jurisdiction and power, under Review. Therefore, the impugned order under challenge (Ext.P7) is set aside. It is needless to say the respondent has right to seek other remedies, in accordance with law against Ext.P4 order passed earlier by the Predecessor Judge and this judgment will not preclude the respondent from seeking appropriate remedies.
16. The learned counsel for the respondent
cited the decisions referred above, to fortify his argument that certification under Section 65B of the Evidence Act is not required to prove the contents of an electronic document under Section 14 of the Evidence Act and Section 14 of the evidence will prevail over Section 65B of the Evidence Act.
17. We are of the opinion that all the decisions
cited by the learned counsel for the respondent would go to the merits of the issue, which was re-considered by the Successor Family Court Judge. Therefore those decisions do not deserve to be considered in this OP (FC), in view of the question considered by us in this OP (FC).
In the result, this OP (FC) is allowed. Sd/- K.HARILAL, JUDGE Sd/- ANNIE JOHN, JUDGE RKM APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1 PHOTOCOPY OF O.P.23/13 DATED 10.1.13 OF FAMILY COURT IRINJALAKUDA FILED BY RESPONDENT. EXHIBIT P2 PHOTOCOPY OF COUNTER DATED 4-11-13 FILED BY PETITIONER IN EXT.P-1 OP.: EXHIBIT P3 PHOTOCOPY OF IA 2435/2016 IN OP 166/12 & OP 13/13 DATED NIL-05-16 FILED BY RESPONDENT. EXHIBIT P4 PHOTOCOPY OF THE ORDER OF FAMILY COURT IRINJALAKUDA DATED 31-8-16 IN EXT.P-3 IA 2435/16. EXHIBIT P5 PHOTOCOPY OF THE REVIEW PETITION IA RESPONDENT IN EXT.P3 IA. EXHIBIT P6 PHOTOCOPY OF COUNTER DATED NIL-2-18 FILED BY PETITIONER IN EXT.P-5 IA: EXHIBIT P7 PHOTOCOPY OF ORDER OF FAMILY COURT, THRISSUR DATED 10.08.18 IN IA 4121/16 IN I.A.NO.2435/16 IN OP 23/13.