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P. Rajkumar and Another Vs. Thangammal - Court Judgment

LegalCrystal Citation
CourtChennai Madurai High Court
Decided On
Case NumberReview Application (MD)No. 138 of 2015 & M.P.(MD)No. 1 of 2015
Judge
AppellantP. Rajkumar and Another
RespondentThangammal
Excerpt:
.....such he should work out the remedy in the manner known to law. though the petitioner took time to file review application, the fact remains that he has not filed any such application." 9. this court rightly uphold the order passed by the learned principal subordinate judge, madurai, dated 31 july, 2012 in unnumbered i.a.no......... of 2012 in i.a.no.673 of 2010. it was only the liberty given to the respondent to file a comprehensive application for impleading in i.a.no.673 of 2010, which caused prejudice to the petitioners/review applicants. it is, therefore, very clear that there is an error apparent on the face of the record. 10. the power of review can be exercised, in case there is a mistake or error apparent on the face of the record. it may also be exercised on any analogous.....
Judgment:

(Prayer: Review Application is filed under Section 114 and Order 47 Rule 1 of Code of Civil Procedure to review the order dated 14.07.2015, in C.R.P.(NPD)(MD)No.2448 of 2012 on the file of this Court.)

1. The respondents in C.R.P.(NPD)(MD)No.2448 of 2012 have come up with this Review Application to review the order dated 14 July, 2015, in C.R.P.(NPD)(MD)No.2448 of 2012, on the ground that there is an error apparent on the face of the record.

2. The learned counsel for the petitioners contended that this Court, after arriving at a finding that the learned Trial Judge was correct in dismissing the application to amend the application in I.A.No.673 of 2010, granted liberty to the respondent to file a comprehensive application for impleading the first defendant in I.A.No.673 of 2010. According to the learned counsel, the Trial Court has dismissed the application in I.A.No.673 of 2010 on various grounds including the ground of non-joinder. The said order remained untouched in C.R.P.(MD)SR.No.41032 of 2011. Such being the factual position, there was no question of permitting the respondent to file an application for impleading in the already disposed application in I.A.No.673 of 2010.

3. The learned counsel for the respondent admitted the factual position that the order in I.A.No.673 of 2010 has become final on account of the rejection of the Civil Revision Petition even without numbering. According to the learned counsel, the respondent should be given liberty to file a review application to review the order in C.R.P.(MD)SR.No.41032 of 2011.

4. The respondent filed an application in I.A.No.673 of 2010 before the Court below to set aside the exparte decree after condoning the delay of 2927 days. The application was dismissed by the Trial Court. The order in I.A.No.673 of 2010 was challenged before this Court in C.R.P.(MD)SR.No.41032 of 2011. The respondent filed an application in M.P.(MD)No.1 of 2011 to accept the cause title. The learned Judge dismissed the application on the ground that the defect, which was in existence in the application in I.A.No.673 of 2010, cannot be cured at the revisional stage. However, the fact remains that there was no adjudication with respect to the legality and correctness of the order passed by the Trial Court dated 08 July, 2011 in I.A.No.673 of 2010 in O.S.No.869 of 2000.

5. The respondent, after the rejection of C.R.P.(MD)SR.No.41032 of 2011, filed an application in unnumbered I.A.No............... of 2012 in I.A.No.673 of 2010 to amend the application. The application was rejected by the learned Trial Judge, by order dated 31 July, 2012. The respondent, thereafter, filed C.R.P.(NPD)(MD)No.2448 of 2012 challenging the order dated 31 July, 2012. This Court arrived at a factual finding that the learned Trial Judge was correct in dismissing the application filed to amend the interlocutory application in I.A.No.673 of 2010.

6. Thereafter, without considering the fact that the order in I.A.No.673 of 2010 has become final, permitted the respondent to file a comprehensive application to implead the first defendant in I.A.No.673 of 2010. The said direction was given on account of the observation made in the order dated 19 October, 2011, that the petitioner therein, who is the respondent in the Review Application, is bound to take proper steps to implead the first defendant in I.A.No.673 of 2010.

7. The learned counsel for the review applicants is perfectly justified in his contention that on account of the dismissal of the application in I.A.No.673 of 2010, by order dated 08 July, 2011 and the dismissal of the Miscellaneous Petition in M.P.(MD)No.1 of 2011 in C.R.P.(MD)SR.No.41032 of 2011, there was no valid application before the Trial Court to permit the respondent to file a comprehensive application for impleading.

8. In fact, during the currency of the Civil Revision Petition in C.R.P.(NPD)(MD)No.2448 of 2012, I have cited the attention of the learned counsel for the respondent herein with regard to the finality reached to the order passed in I.A.No.673 of 2010 and adjourned the matter on multiple occasions so as to enable him to file a petition to review the order dated 19 October, 2011 in M.P.(MD)No.1 of 2011 in C.R.P.(MD)SR.No.41032 of 2011. Paragraph No.4 of the order dated 14 July, 2015, would make the position clear. The order reads thus:

"4. When the civil revision petition came up for hearing on an earlier occasion, I have cited the attention of the learned counsel for petitioner to the order in C.R.P.(MD)No.SR.41032 of 2011 and indicated that the Court has not gone into the merits of the matter in I.A.No.673 of 2010 and as such he should work out the remedy in the manner known to law. Though the petitioner took time to file review application, the fact remains that he has not filed any such application."

9. This Court rightly uphold the order passed by the learned Principal Subordinate Judge, Madurai, dated 31 July, 2012 in unnumbered I.A.No......... of 2012 in I.A.No.673 of 2010. It was only the liberty given to the respondent to file a comprehensive application for impleading in I.A.No.673 of 2010, which caused prejudice to the petitioners/review applicants. It is, therefore, very clear that there is an error apparent on the face of the record.

10. The power of review can be exercised, in case there is a mistake or error apparent on the face of the record. It may also be exercised on any analogous ground. In case there is a glaring omission or patent mistake, the Court is bound to correct it by exercising the review jurisdiction.

11. The Supreme Court in BCCI v. Netaji Cricket Club [2005(4) SCC 741], indicated the scope of review jurisdiction in the following words. The Supreme Court said:

"89. Order 47 Rule 1 of the Code provides for filing an application for review. Such an application for review would be maintainable not only upon discovery of a new and important piece of evidence or when there exists an error apparent on the face of the record but also if the same is necessitated on account of some mistake or for any other sufficient reason.

90. Thus, a mistake on the part of the court which would include a mistake in the nature of the undertaking may also call for a review of the order. An application for review would also be maintainable if there exists sufficient reason therefor. What would constitute sufficient reason would depend on the facts and circumstances of the case. The words "sufficient reason" in Order 47 Rule 1 of the Code are wide enough to include a misconception of fact or law by a court or even an advocate. An application for review may be necessitated by way of invoking the doctrine "actus curiae neminem gravabit".

12. Since the order in I.A.No.673 of 2010 has become final, there is no question of permitting the respondent to file an application for impleading in I.A.No.673 of 2010. The applicants are, therefore, perfectly correct in contending that there is an error apparent on the face of the record, which is liable to be reviewed. I am, therefore, of the view that the order dated 14 July, 2015, is liable to be reviewed with respect to the liberty granted to the respondent to file a comprehensive application for impleading the first defendant in I.A.No.673 of 2010.

13. The direction in the order dated 14 July, 2015, in the nature of liberty to file a comprehensive application for impleading the first defendant in I.A.No.673 of 2010, is reviewed and recalled. The respondent is not entitled to file an application for impleading the first defendant in I.A.No.673 of 2010, in view of the earlier order dated 08 July, 2011, in I.A.No.673 of 2010 and the order dated 19 October, 2011 in M.P.(MD)No.1 of 2011 in C.R.P.(MD)(SR).No.41032 of 2011.

14. The Review Application is allowed to the extent indicated above. Consequently, the connected miscellaneous petition is closed.


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