IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE K. NATARAJAN REVIEW PETITION No.456 of 2017 IN REGULAR SECOND APPEAL No.2427 of 2011 BETWEEN:
SRI L.A. SRINIVASA GUPTA S/O. N.S. ANANTHA PADMANABHA SETTY, AGED ABOUT 61 YEARS, R/AT. No.G23, MYSORE ROAD, NEW THARUGUPET, BENGALURU - 560 002.
...PETITIONER (BY SRI LAKSHMI NARAYAN, SENIOR COUNSEL FOR SMT. ANUSHA L., ADV., (NOT OBTAINED NOC) AND SRI SREEDHARA H.R., ADV., AND SRI NAVEEN CHANDRASHEKAR, ADV.,) AND:
1. SRI R. MANJUNATHA REDDY AGED ABOUT 48 YEARS, 2. SRI R. MUNI REDDY AGED ABOUT 46 YEARS, 3. SRI N.R. LAKSHMANA REDDY AGED ABOUT 44 YEARS, (ALL THE ABOVE ARE SONS OF LATE N.T. RAMA REDDY) R/AT. BALEGARANAHALLI VILLAGE, ATTIBELE TALUK, BENGALURU DISTRICT – 562 106.
4. MS. ARUNA SHEKUJA D/O MR. D.W. SHEKUJA, AGED ABOUT 72 YEARS, R/AT. No.347, 6TH MAIN ROAD, 1ST BLOCK, KORAMANGALA, BENGALURU – 560 034.
5. MR. H.L. MALHOTHRA S/O MR. D.L. MALHOTHRA, AGED ABOUT 82 YEASR, R/AT. No.B/30, MAHARANI BAGH, NEW DELHI - 110 001.
6. MR. MOHAMMAD IQBAL S/O MR. NEEYAM SAHEEB, AGED ABOUT 82 YEARS, R/AT. No.5, NANDIDURGA EXTENSION, BENGALURU – 560 052.
7. MR. N.T. RAMA REDDY S/O THIMMA REDDY, SINCE RESPONDENT No.7 IS DECEASED REPRESENTED BY HIS LR’S (a) SMT. R. RATHNAMMA W/O. LATE N.T. RAMA REDDY, AGED ABOUT 68 YEARS, (b) MISS N.R. REDUKA DEVI D/O. SRI N.T. RAMA REDDY, AGED ABOUT 37 YEARS, 7(a) & 7(b) ARE RESIDING AT BALAGARANAHALLI VILLAGE, ANEKAL TALUK, BANGALORE – 560 007.
8. THE SUB-REGISTRAR ANEKAL SUB-REGISTRAR OFFICE, ATTIBELE HOBLI, ANEKAL TALUK, BENGALURU DISTIRCT – 562 106.
(BY SRI K.G SADASHIVAIAH AND SRI B.M. LOKESH, ADVOCATES FOR R1-R3;
… RESPONDENTS R4 IS SERVED, NOTICE TO R5 IS DISPENSED WITH; NOTICE TO R6 IS HELD SUFFICIENT;
SRI MAHENDRA GOWDA C.R., ADVOCATE FOR R7 (a & b); SMT. SAVITHRAMMA, HCGP FOR R8) THIS REVIEW PETITION IS FILED UNDER SECTION 114 READ WITH ORDER 47 RULE 1 OF THE CODE OF CIVIL PROCEDURE 1908, PRAYING TO i) REVIW THE ORDER DATED 09.08.2017 PASSED, SET ASIDE THE ORDER DATED 09.08.2017 IN RSA No.2427/2011 BY DISMISSING THE RSA No.2427/2011.
ii) GRANT SUCH OTHER ORDER/S AS THIS HON’BLE HIGH COURT MAY BE PLEASED TO GRANT IN FACTS AND CIRCUMSTANCES OF THE CASE, IN THE INTEREST OF JUSTICE AND EQUITY.
THIS REVIEW PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 04.11.2019 AND COMING ON FOR PRONOUNCEMENT, THIS DAY THE COURT PRONOUNCED THE FOLLOWING:
ORDER This review petition is filed by respondent No.1 in RSA.No.2427/2011 wherein this Court allowed the appeal filed by respondent Nos.1 to 3 vide order dated 09.08.2017.
2. Heard the arguments of learned senior counsel for the petitioner and the learned counsels for respondent Nos.1 to 3 and 7 and learned HCGP for respondent No.8.
3. The ranks of the parties before the court below are retained for the sake of convenience.
4. The brief facts of the case of the petitioner are that respondent Nos.1 to 3 were the respondents before the 1st Appellate Court and plaintiffs before the trial Court. They filed a suit for declaration in O.S.No.25/2006 to declare that the sale deeds dated 15.04.1982, 16.07.1987 and 16.08.1987 are not binding on the plaintiffs and prayed for permanent injunction. In the said suit, they have not prayed for possession over the suit schedule property. The trial Court decreed the said suit. The same was challenged by the defendants before the 1st Appellate Court in RA.No.257/2009. The 1st Appellate Court allowed the appeal filed by the petitioner and dismissed the suit of the plaintiffs. Being aggrieved by the same, the plaintiffs preferred second appeal in RSA.No.2427/2011 before this Court. This Court by judgment dated 09.08.2017 allowed the second appeal and restored the decree passed by the trial Court and set aside the order passed by the 1st Appellate Court in RA.No.257/2009.
5. The defendants by way of this review petition has contended that in the regular second appeal framing of substantial question of law is sine qua non in terms of Section 100 of the Code of Civil Procedure (hereinafter referred to as “CPC”). This Court in regular second appeal has framed the substantial question of law on 30.10.2013. Thereafter, the same was modified with the consent of both the parties on 18.09.2015, but this Court while considering the appeal has taken into consideration only the substantial question of law which was framed on 30.10.2013 and not the substantial question of law framed on 18.09.2015 which warrants this Court to review the judgment. Further it is also averred that in the light of the principles laid down by the Hon’ble Apex Court in the case of Chunnilal Vs. Mehta & Sons ltd., Vs. Century Spg. & Mfg. Co. Ltd., reported in AIR 1962 SC 1314 it is held that framing and consideration of substantial question of law is sine qua non for adjudication of a regular second appeal and the events in the present regular second appeal would demonstrate that there was no proper framing of substantial question of law in the initial stage as the same stood modifies before hearing on the merits of the appeal. On this background, admitting of the second appeal is a nullity. Further it is contended that whenever the sale has taken place by the kartha or father which also included co-parcenary minor/s interest, the sale deed to the extent of kartha’s share at worst case situation is held to be legally binding atleast to the extent of his share. The reasoning given by this Court in paragraph No.38 at page No.29 holding that the father of the plaintiffs could have transferred right only to an extent of his right, which he was having and absolutely, he has no manner of right to transfer the rest of the property which belonged to the plaintiffs, which required to be modified.
6. Further it is contended that the judgment of the Hon’ble Apex Court reported in AIR 1971 SC 2162 has held that even if an advocate failed to cite the decision of the Hon’ble Apex Court and if the decision of the Hon’ble Apex Court is cited in review jurisdiction, the review power can be exercised in the event of there being any mistake committed by the petitioner’s counsel. Further the learned counsel for the petitioner submitted that the Court cannot grant any reliefs to the persons who appear before it by suppressing the material facts or with unclean hands. The contesting respondents are not entitled to any relief in the light of the fact that their pleadings at paragraph No.6 of the plaint in OS.No.647/1995 is in direct contradiction to the evidence on record before the court in O.S.No.344/1987 which have been summoned and marked as Exs.A8 to A12. Further it is contended that the sale of the property by kartha or father inclusive of minor/s co-parcernary share for legal necessity binds the minor/s share. The entire approach taken by this Court in the second appeal is contrary to the decision of the Hon’ble Apex Court in AIR 1964 SC 1385. It is also contended that if the sale has taken place, which includes unidentified co-parcenary’s property including that of a minor, in order to acquire another property, it is presumed that the same is for legal necessity. Through the sale deed dated 15.05.1982 at Ex.D.10 the father of 1st plaintiff by name of N.T.Rama Reddy acquired a new property and in the said new property formed 54 sites and sold 31 sites within a year. Therefore, the sale in the instant case is deemed to be for a legal necessity in view of the judgment of the Hon’ble Apex Court. Further in the evidence of the plaintiff he himself admits that he has sold the sites.
7. It is also urged by the learned counsel for the petitioner that O.S.No.344/1987 was filed on 18.12.1987. The revenue entries stood in the name of the petitioner. As per Section 132 of the Karnataka Land Revenue Act, the plaint should compulsorily be annexed with the certified copies of the revenue records, otherwise, the plaint has to be returned. If the revenue records i.e., RTC, mutation and katha would have been annexed with the plaint, the period of limitation shall start to run from 18.12.1987 when the initial suit numbered as O.S.No.344/1987, which came to be disposed of on 30.10.1992. In the initial suit, the prayer was to declare that the suit schedule property is a joint family property and such a suit is unnecessary, because it is an established legal presumption under the Hindu Law that the co-parcenar by birth gets the right to joint family property. The said presumption of law need not be declared by the civil Court. Therefore, the initial suit is of no significance. The decision rendered in first suit has no bearing on either of the sale deeds dated 16.07.1987 or 19.08.1987. The second suit was filed on 06.09.1995 wherein declaration was sought for cancellation of sale deeds dated 15.04.1982, 16.07.1987 and 19.08.1987 and the limitation for filing a suit is three years from the date of accrual of the very first cause of action as per Article 58 of the Limitation Act. Thereby the second suit is barred by limitation in view of the decisions of the Hon’ble Apex Court. The first cause of action arose on 15.04.1982 when the suit filed by the plaintiff at the first instance was on 18.12.1987. The cause of action to set aside the sale deed dated 15.04.1982 started to run from 15.04.1982. The suit seeking cancellation of sale deeds dated 15.04.1982, 16.07.1987 and 19.08.1987 was filed on 06.09.1995 and the second suit is barred by limitation. It is further contended that the plaintiffs have impleaded Mohammed Iqbal by filing application on 11.07.1990 to challenge the sale deed dated 16.07.1987. As on that date, Exs.P.25 and P.26 revenue records bears the entries of Srinivas Gupta as owner of the suit schedule property and the revenue entry was effected on 18.12.1987 the date on which the first suit was filed. Therefore, second suit is barred by limitation. Therefore, the principle of Order 2 Rule 2 applies and the plaintiffs in the suit are precluded from challenging the revenue records. Article 109 of the Limitation Act would not attract as the suit filed for declaration without recovery of possession is not maintainable under Section 34 of the Specific Relief Act. In the first sale deed executed by N.T.Rama Reddy, his wife Smt. Rathnamma was a consenting witness to the sale deed dated 15.04.1982. The possession of the property was delivered to defendant Nos.2 and 3. The recitals are binding on respondent No.7(a) herein Smt. Rathnamma being the wife of late N.T.Rama Reddy. From the recitals of the sale deed, the possession has been delivered and the very petitioner was in possession and enjoyment of the property. Therefore, without a prayer seeking recovery of possession, the suit is not maintainable. The relevant article would attract is Article 58, but not Article 109 of Limitation Act. The re-appreciation of the evidence is not available in the second appeal, it is only substantial question of law. Therefore, the power exercised by this Court holding that the first Appellate Court has committed an error in interfering with the judgment and decree of the trial Court and further holding that the trial Court has correctly appreciated the materials on records is an error apparent on the face of the record, which warrants to review the judgment of this Court. The sale deed dated 15.04.1982 in favour of the appellant’s vendor was prior to filing of the suit in O.S.NO.334/1987, which came to be disposed of on 30.10.1992. The sale deed in favour of the petitioner is not during lis-pendens. The sale was within the knowledge of the plaintiffs. The limitation runs from the date of the first cause of action. Exhibits produced by the plaintiffs disclose the name of the review petitioner. The sale deed of the petitioner was not challenged as on the filing of the second suit. Therefore, the findings required to be modified.
8. The learned counsel for the petitioner further contended that the subsequent suit in OS.No.25/2006 was filed to achieve which could not be achieved by means of initial suit in O.S.No.344/1987. The second suit was to improving on the lacunae contained in the initial suit as can be inferred from the plaint averments. The nature and relief sought in O.S.No.25/2006 clearly bring it within the ambit of Order 2 Rule 2 of CPC and thereby it is hit by the principles of res-judicata and laws of limitation. The sale deed dated 15.04.1982 also got a recital that the possession has been delivered to purchaser by the sole vendor namely N.T.Rama Reddy. Therefore, the suit filed only for declaration without seeking recovery of possession, the same is hit by Section 34 of the Specific Relief Act on the ground that the suit for declaration simplicitor without recovery or possession, the decree cannot be granted. The recital in sale deed dated 15.04.1982 vide Ex.D.10 since binds on the mother including the father who was a party to it, the question of claiming that the possession continued with the parents even after the sale, is totally impermissible. The plaintiff makes belief when he avers that his father had bad habits as rightly held by the 1st Appellate Court. The same is hearsay evidence. The plaintiff has challenged those sale deeds is also not forthcoming as also the fact that the plaintiff has been selective in choosing to challenge only the sale deeds of those pertaining to the suit schedule property. On the question of limitation, the 1st Appellate Court has rightly arrived at a conclusion to reverse the findings of the trial Court and stretch of imagination by any means of calculation, the suit is barred by limitation, in light of limitation reckoning from the date of first cause of action from 15.04.1982. The plaintiffs omitted to sue against the petitioner as on 18.12.1987 and also omitted seeking the relief of possession. When an application has been filed for impleadment of Mohammed Iqbal and the said Mohammed Iqbal was impleaded and the decree cannot be put into execution and realizing that three years will get over from the date of the decree i.e., 30.10.1992. To avoid the question of limitation, on the basis of pleadings in the plaint, the decree passed by the trial Court is beyond the pleadings. Having regard to the decision of the Hon’ble Apex Court reported in (2011) 9 SCC 126 and (2016) 1 SCC 207 the suit is barred by limitation. The trial Court proceeded to hold that the law of limitation under Article 109 is not applicable. In a suit for declaration under Article 58 the limitation is three years. In the instant case, right to sue first accrues as pleaded by the plaintiff is from 15.04.1982. Therefore, the suit filed on 06.08.1995 is hopelessly barred by limitation. The suit for declaration without recovery or possession is impermissible in view of bar under Section 34 of the Specific Reliefs Act. The competency of the kartha/manager/father to transfer the minor share for family and legal necessity has been upheld by the decisions of the Hon’ble Apex Court. There is an error apparent on the face of the record which warrants interference in the present review petition. In view of the judgment of the Hon’ble Apex Court in the case of State of U.P. Vs. Arvind Kumar reported in 2015(1) SCC 347 this Court has wrongly upheld that the judgment passed ‘is in rem’ and ‘not personam’ failing to realize that the first and initial judgment obtained by the plaintiffs was suppressed by not adding the present petitioner as defendant. Therefore, he prays for allowing the petition.
9. The respondents have filed objection mainly on the maintainability of the review petition as required under Section 114(1)(a) of CPC and when there is no appeal filed by the petitioner, then only review petition is permissible and maintainable, wherein the petitioner already filed SLP before the Hon’ble Apex Court which is pending in SLP (Civil) Dairy No.36733/2017. Therefore, the petitioner cannot be permitted to prosecute the review petition and a parallel proceeding cannot be permitted. It is further contended that entertaining the review under Order XLVII Rule 1 r/w 114 of CPC is very limited subject to fulfilling the conditions stipulated as per the judgment rendered by the Hon’ble Apex Court in the case of Union of India Vs. B.Valluvam reported in AIR 2007 SC 210. The petitioner has not assigned any reasons as to how the substantial question of law was left out by the Hon’ble Court while deciding the second appeal. Therefore, the review petition is not maintainable. Further it is submitted that the petitioner alleged that an error is committed by this Hon’ble Court in ground No.5 which cannot be questioned in review petition and the same is an appealable one. The petitioner cannot be permitted to initiate parallel proceedings one before the Hon’ble Apex Court and another before this Court. When the substantial questions of law framed by this Court, the counsel for the petitioner did not object while answering the substantial questions of law, the petitioner cannot be permitted to seek modification of the judgment as this Court considered the judgment and answered the substantial questions of law. The previous substantial questions of law were modified by this Court with the consent of both the parties. Thereafter, the matter was reserved for judgment. The scope of review petition as contemplated under the provisions of Section 114 of CPC is very limited, as such it will go to the root of the judgment and further contended that the averments made in paragraph Nos.23 to 30 are per se illegal and virtually the review petition is nothing, but a regular appeal as contemplated under Order XLI Rule 1 of CPC. The scope under Section 100 of CPC is very limited to only decide the questions of law and not on the facts. The provisions of Law of Limitation Act are extracted by the petitioner at paragraph Nos.31 to 34. In fact, there is no dispute to the provisions of law and the petitioner once again reiterated the matter for the reasons best known to him and the same is liable to the rejected. The ground made out by the petitioner is the same ground, which was made in the appeal before the Hon’ble Apex Court. Therefore, the second appeal once again cannot be re-considered by this Court, which is not permissible. Hence, prayed for dismissal of the petition.
10. Upon hearing the arguments of the learned counsel for the petitioner as well as respondents and the ground made out in the petition as well as objections and perusing the records, the following points arise for consideration before this Court:
i) Whether the review petition is maintainable?
ii) Whether the petitioner made out a case that there is an error apparent on the face of the record in the judgment of this court in RSA.No.2427/2011, which requires for review?
11. The background of the case in question is that the respondent No.1 who is the plaintiff has filed the suit against other respondents in O.S.No.25/2006 on the file of the Civil Judge (Sr.Dn), Anekal, seeking declaration to declare that the sale deed executed by father of the plaintiff dated 15.04.1982 is invalid in terms of the judgment passed in O.S.No.333/2007 and subsequent sale deed dated 15.05.1982 and another sale deed in favour of one Mohammed Iqbal and one more sale deed dated 19.08.1987 in favour of this petitioner as null and void and not binding. The suit came to be decreed. Assailing the same, this petitioner filed RA.No.257/2009, wherein the 1st Appellate Court reversed the judgment and dismissed the suit of the plaintiff. Hence, the plaintiff filed the second appeal before this Court in RSA.No.2427/2011. Admittedly, this Court after hearing the arguments of both the counsel allowed the second appeal by judgment and decree dated 09.08.2017 and confirmed the judgment of the trial Court by setting aside the judgment of the 1st Appellate Court. After the disposal of the second appeal, respondent No.1-L.A.Srinivasa Gupta has filed SLP before the Hon’ble Supreme Court which is pending in SLP (Civil) Dairy No.36733/2017. Even as on the date of hearing the arguments, SLP filed before the Hon’ble Supreme Court is pending, wherein the counsel for the petitioner also submits that he himself appeared before the Hon’ble Supreme Court as counsel for petitioner in SLP.
12. Learned counsel for the respondents/plaintiffs objected the review petition mainly on three grounds. First ground is that, the petitioner already filed an appeal before the Hon’ble Supreme Court which is still pending. Therefore, as per Section 114 read with Order XLVII Rule 1 of CPC the review petition is not maintainable and second contention is that the Advocate for petitioner who appeared before this Court in the second appeal has not filed this review petition, and without obtaining no objection from the previous counsel, the present counsel filed the review petition. Therefore, the review petition shall not be entertained and the other contention is that the grounds made out in the appeal before the Hon’ble Supreme Court in SLP as well as the grounds made out in the review petition are one and the same. This Court already considered the substantial questions of law after hearing the parties and answered the same while disposing the appeal. Such being the case, once again this Court has no power to re-hear the appeal on merits and this Court cannot sit over its own judgment in this review petition. Therefore, prays for dismissal of the review petition.
13. As per the first ground urged by respondents regarding the maintainability, it is worth to mention the provision of Section 114 r/w Order 47 Rule 1 of CPC, which reads as under:
“114. Review-Subject as aforesaid, any person considering himself aggrieved-
(a) by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred, (b) by a decree or order from which no appeal is allowed by this Code, or (c) by a decision on a reference from a Court of Small Causes, my apply for a review of judgment to the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit.”
14. On bare reading of provision of Section 114(a) of CPC is once an appeal has not been filed, then only the review is permissible, but in view of the filing of the appeal by the petitioner in SLP (Civil) Dairy No.36733/2017, which is pending before the Hon’ble Apex Court. Such being the case, the review petition is not maintainable and it is settled principles of law that the petitioner cannot be permitted to prosecute parallel proceedings one before the Hon’ble Apex Court by way of appeal and another proceeding before this Court by way of review petition. Therefore, on this ground, the review petition is not maintainable. Though, the Hon’ble Apex Court has held that the review petition is maintainable, once the SLP is dismissed without considering on merits, but the very provision of Section 114(a) read with Order XLVII Rule 1 of CPC, there is a clear bar for filing review petition when appeal is already filed. Learned counsel for the petitioner not argued in respect of maintainability of this review petition in view of filing of the appeal before the Hon’ble Apex Court.
15. The second contention of the learned counsel for the respondents is that the judgment of the Hon’ble Apex Court in the case of Tamil Nadu Electricity Board and Another Vs. N.Raju Reddiar and Another reported in (1997) 9 SCC 736 wherein at paragraph No.1 of the judgment, it is held as under:
“When an appeal/special leave petition is dismissed, except in rare cases where error of law or fact is apparent on the record, no review can be filed; that too by the Advocate-on-Record who neither appeared nor was party in the main case. It is salutary to note that the court spends valuable time in deciding a case. Review petition is not, and should not be, an attempt for hearing the matter again on merits. It has become, in recent time, a practice to file such review petitions as a routine; that too, with change of counsel, without obtaining consent of the Advocate- on-Record at earlier stage. This is not conducive to healthy practice of the Bar which has the responsibility to maintain the salutary practice of profession”.
16. In view of the principles laid down by the Hon’ble Supreme Court and in the case on hand, the petitioner filed this review petition through the advocates namely Sri Naveen Chandrashekar and Sri Sreedhara H.R., whereas the second appeal was filed by one Sri H.S.Dwarakanath, Advocate. Admittedly, no objection certificate was not obtained from the earlier counsel by the present counsel for filing the review petition. On this ground, review petition is liable to be dismissed, in view of the principles laid down by the Hon’ble Apex Court in the case of Tamil Nadu Electricity Board (stated supra).
17. The third contention raised by the learned counsel for the respondents is that the grounds urged by the petitioner in this review petition as well as in SLP are one and the same. The learned counsel also brought to the notice of this Court the principle laid down by the Hon’ble Apex Court with regard to maintainability and non-maintainability of the review petition. The Hon’ble Apex Court in the case of Kamlesh Verma Vs. Mayawati and Others reported in (2013) 8 SCC 320, has laid down the principles in respect of maintainability and non-maintainability at paragraph Nos.19 and 20, which are 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 47 Rule 1 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 the 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 the record;
(iii) Any other sufficient reason.
The words “any other sufficient reason” have been interpreted in Chhajju Ram v. Neki and approved by this Court in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius 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 v. Sandur Manganese & Iron Ores Ltd.
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 reheard 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”.
18. By keeping the principles laid down by the Hon’ble Apex Court in the judgments stated supra, now coming to the grounds urged by the counsel for the review petitioner is that, though this Court framed the substantial question of law on 30.10.2013 and later the substantial question of law was modified on 18.09.2015, but while answering the substantial question of law, this Court considered the substantial question of law framed on the earlier occasion, but not the modified substantial question of law. The same is objected by the respondents’ counsel on the ground that the counsel for the petitioner while arguing the matter not addressed the same and later this Court has answered the substantial question of law framed, which cannot be questioned in this review petition. Even the learned counsel for the petitioner has not argued much on this point. However, the entire arguments of the learned counsel for the petitioner in respect of suit filed by the plaintiff for declaration without seeking possession of the suit schedule property, the limitation under Article 58 would attract, but not Article 109 as considered by this Court in the second appeal. Therefore, he has contended that there is an error on the face of the record. Further, it is argued that the declaration without seeking recovery of property the suit is barred by limitation. In this regard, this Court while considering the first substantial question of law has categorically dealt and answered the substantial question of law holding that the Article 109 of Limitation Act would apply, but not Articles 56 to 58 of the Limitation Act as sought to be contended by the counsel for defendant No.1 and after the plaintiff attaining the majority filed the suit. Therefore, the suit was well within the time and the period of limitation is 12 years from the date of attaining the majority.
Therefore, the findings of this Court cannot be challenged in the review petition as like the grounds required to be urged in the appeal. The learned counsel for the petitioner also argued that the substantial question of law in respect of the principles of judgment in personam and judgment in rem and answered the second substantial question of law in favour of the plaintiff holding that the judgment obtained by the plaintiff in the earlier suit ie., O.S.No.334/1987 as judgment in rem, but not the judgment in personam, which is not correct. This Court while considering the second substantial question of law has relied upon the judgment of the Hon’ble Apex Court in paragraph Nos.35 and 36 of the judgment in RSA and answered the same. The judgment passed in O.S.No.334/1987 certainly binds on the rights of defendant No.1. It is the judgment in rem and not the judgment in personam and this Court after considering various aspects, answered the second substantial question of law against the defendant. The same cannot be again questioned by the petitioner in the review jurisdiction and the option left to the petitioner only to urge such ground before the Hon’ble Supreme Court. As regards to the cause of action, the learned counsel for the petitioner contended that the cause of action starts on 15.09.1992 while filing the first suit in O.S.No.334/1987 and on the same cause of action, the second suit has been filed by the plaintiff in the year 1995. Thereby, the suit is barred by limitation. In this regard, this Court has already considered the said arguments and answered the substantial question of law Nos.3 and 4 in favour of the plaintiff. Therefore, the counsel for the petitioner cannot be permitted to argue on the review petition as required to argue before the Appellate Court in the appeal. This Court cannot sit over its own judgment like an appeal. The entire arguments addressed by the learned counsel for the petitioner is nothing, but arguments addressed against the judgment of this Court like addressing the argument in the appeal. That apart the ground urged in the review petition and also the grounds urged in the SLP filed by the petitioner are all similar. Thereby, the petitioner is trying to argue the review petition as good as appeal, which is not permissible as held by the Hon’ble Apex Court in Kamlesh Verma’s case as stated supra. The learned counsel for the petitioner has contended that the previous counsel while arguing the matter has not brought some of the judgments of the Hon’ble Apex Court. As per the judgments of the Hon’ble Apex Court, the findings required to be revived as already stated above. The present counsel is not the counsel appeared and not argued the matter in the regular second appeal and without obtaining no objection from the earlier counsel, filing of the review petition by the present counsel is not permissible as per the judgment of the Hon’ble Apex Court in Tamil Nadu Electricity Board’s stated supra and as held above, the entire arguments of learned counsel for the petitioner is nothing, but a re-arguments on the appeal over the judgments of this Court in the second appeal, which is not permissible. The entire arguments addressed by the learned counsel for the petitioner is nothing, but arguing the matter as afresh like arguing the matter in the second appeal, which is not permissible. Mere erroneous in decision by answering the substantial question of law cannot be argued for re-hearing and correcting in the review petition until there is a mistake apparent or patent error on the face of the record. Considering all these points, absolutely, there is no ground urged by the petitioner which is sufficient to hold that there is error apparent on the face of the record to review the judgment of this Court in RSA.No.2427/2017. Therefore, I hold that the review petition is not maintainable on the above said grounds.
Accordingly, the review petition is hereby dismissed.
Sd/- JUDGE PB