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Mottai Goundan Vs. P.S. Ramaswami Ayyangar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1933Mad290
AppellantMottai Goundan
RespondentP.S. Ramaswami Ayyangar and ors.
Cases ReferredChhajju Ram v. Neki
Excerpt:
.....for consideration and it comes to a conclusion only on that aspect of the case, no application for review would lie on the ground that as the court failed to consider the other aspect there is a patent error on the face of the order, 5. but he goes on: but though the present application may not be maintainable on that ground, i am of opinion, that as the question now raised is purely a question of law and is clearly in favour of the petitioners there is sufficient reason for reviewing the order, 6. in considering the legal aspect of the court's power of review there is no use referring to any decisions before that of the privy council in chhajju ram v. basheshar lal bansi dhar air 1928 lah 919. the parties in that case had dealings in piecegoods and it was admitted that the defendant..........certain alienations made by defendant 1 are not binding on plaintiff 2 and on her share in the suit properties, on the ground that the suit properties are the separate properties of plaintiff 2's husband. the first issue raised waswhether defendant 1 was estopped from denying the title of the plaintiffs to the suit properties and from contending that they are the joint properties by reason of the decree in o.s. no 3 of 1910 on the file of the district munsif's court, tirupur.2. the learned district munsif first gave a finding in defendant l's favour on this point. afterwards an application was made to him to review his order which lie did and gave a finding in plaintiff's favour on the point. an appeal was taken to the district judge who remarked that the suit was still in its trial.....
Judgment:

Walsh, J.

1. The petitioner in this matter is defendant 1 in O.S. No. 216 of 1929 on the file of the District Munsif, Gobichettipalayam. The suit was for a declaration that certain alienations made by defendant 1 are not binding on plaintiff 2 and on her share in the suit properties, on the ground that the suit properties are the separate properties of plaintiff 2's husband. The first issue raised was

whether defendant 1 was estopped from denying the title of the plaintiffs to the suit properties and from contending that they are the joint properties by reason of the decree in O.S. No 3 of 1910 on the file of the District Munsif's Court, Tirupur.

2. The learned District Munsif first gave a finding in defendant l's favour on this point. Afterwards an application was made to him to review his order which lie did and gave a finding in plaintiff's favour on the point. An appeal was taken to the District Judge who remarked that the suit was still in its trial stage and that the correctness of the finding might be canvassed by the appellant in the appeal against the final judgment. He also remarked that the appeal memorandum did not clearly show that the application for review was in contravention of Order 47, Rule 2 or Rule 4, but he does not discuss Order 47, Rule 1 in this connexion. He dismissed the appeal. Petitioner has put in revision petitions both against the original and against the appellate order. So the preliminary objection taken that where an appeal lies, a revision petition will not be entertained is met by taking up the revision petition against the appellate decision, i.e. Civil Revision Petition No. 1435 of 1931.

3. Original Suit No. 3 of 1910 referred to above was filed by the grandsons of one Marappa Goundan, the maternal grandfather of plaintiff' 2's husband alleging that certain properties mentioned in the schedules of the present plaint, belonged to the said Marappa Goundan and that they and plaintiff 2's husband being his heirs were entitled to the same. Plaintiff 2's husband and his father, the present defendant 1, were impleaded as defendants in that suit. The present defendant 1 contended that the suit properties were his ancestral properties and that the plaintiffs in that suit had no right to them. The suit was compromised and a razinamah decree passed under which the properties were divided into some shares between the plaintiffs and the defendants in that suit. When the first issue in the present suit was being argued at the time of the first order, it was contended that it was not open to defendant 1 to claim the suit properties as his ancestral properties inasmuch as by the razinamah decree it was in effect held that they were not so. The Court held that it was not possible to deduce from the terms of the razinamah decree that this was the basis of the razinamah decree.

4. It therefore as stated above, found the issue in favour of defendant 1. It was asked to revise its order on the ground that by the very fact that certain properties were made over to the plaintiffs in that suit by the decree and that certain others were declared to belong both to plaintiff 2's husband and to defendant 1 it was not open to defendant 1 to deny the plaintiffs' title and say that they were his joint family properties, and that in any case the decree was a contract which defendant 1 could not go behind. On a consideration of these arguments the Court reviewed its previous order and found the issue in favour of the plaintiffs. The question is whether it had power under Order 47, Rule (1) to do so. There is quite clearly no apparent error at all on the face of the order as is admitted by the learned District Munsif in his order granting review. He very fairly puts it:

If there are two aspects to a question to be considered by a Court and if only one such aspect is brought to its (the) notice of the Court for consideration and it comes to a conclusion only on that aspect of the case, no application for review would lie on the ground that as the Court failed to consider the other aspect there is a patent error on the face of the order,

5. But he goes on:

But though the present application may not be maintainable on that ground, I am of opinion, that as the question now raised is purely a question of law and is clearly in favour of the petitioners there is sufficient reason for reviewing the order,

6. In considering the legal aspect of the Court's power of review there is no use referring to any decisions before that of the Privy Council in Chhajju Ram v. Neki AIR 1922 PC 112 because it is therein stated that there had been a number of conflicting decisions by various High Courts on the matter and so their Lordships proceeded to give an authoritative ruling. That was a case where the Punjab Chief Court had granted a review on the ground that the 'judgment had proceeded on an incorrect exposition of the law.' The Privy Council held that 'any other sufficient reason' must be analogous to those specified immediately previously in Order 47, Rule (1) and that this was not an analogous reason and therefore not a sufficient one. As remarked by Mulla in his commentary whether a particular reason is analogous or not to one or other of the two reasons, the discovery of new and important matter of evidence' or 'some mistake or error apparent on the face of the record' may obviously lead to very refined if not subtle arguments, and in fact has done so. Some subsequent cases may be noted here. The first is Narain Das v. Chiranji Lal : AIR1925All364 where a decree having been passed in favour of a plaintiff conditioned on his performing certain acts the plaintiff found that, for reasons entirely beyond his control, he was unable to perform them. He therefore applied for review and got the decree modified. Held that he could do so. This case bears no analogy to the present.

7. K.K.S.A.R. Firm v. Mating Kya Nyun A I.R 1923 Rang 31 was a case where review was allowed because, a witness who could not be found during the trial, was subsequently produced. Except for the remark that of the same kind' is more restricted than analogous' it does not help in the present case. Then come two cases more in point. The first is Morari Rao v. Ralavanih Dikshit AIR 1924 Mad 98. A Judge there dismissed a suit on the ground that as between the plaintiffs who wore the nearest agnates and the defendants who were the sister's sons of the last male owner the latter were the preferential heirs under the Mitakshara law prevailing in the Madras Presidency, held, that this was an error of law apparent on the face of the record and that the Judge was competent to grant a review. It was remarked in that judgment that each case must be judged by itself and it was held that the error was so patent that it could be said to be 'apparent on the face of the record.'

8. The next case is Debi Sahai-Gulzari Mal v. Basheshar Lal Bansi Dhar AIR 1928 Lah 919. The parties in that case had dealings in piecegoods and it was admitted that the defendant firm had failed to deliver 15 bales to the plaintiff firm. The only question in dispute was that of the shipments to which these bales belonged. The decision of the trial Court was that 13 should have been of the January shipment and two of the February and damages were granted amounting to Rs. 727 odd. After hearing the appeal the High Court decided that nine of the bales belonged to the February shipment and six to the April and after calculating rates increased the damages to Rs. 1,259. A review was sought on the ground' that there had been an error on the face of the record in that the High Court had failed to apply the natural result of its own finding, and to hold that so far as the February shipment was concerned the suit was barred by time. Review was allowed. Referring to Chhajju Ram v. Neki AIR 1922 PC 212 the learned Judges remarked:

That ruling dealt entirely or almost entirely with the third heading under which reviews are competent, namely, 'for any other sufficient reason' and it was expressly stated that the first two grounds did not apply to that case.

9. They then proceed to notice a contention that a mistake of law does not come within the words 'mistake or error apparent on the face of the record.'' They say:'This is not quite clear' (compare a similar remark in the Madras case where after noting the cases in which this view has been taken it is stated but there are cases in which a different view is taken') but anyhow it is, we think, rightly contended by the other side that here there is no question of a mistake of law. It is not urged that there is no question of a mistake of law. It is not urged that of two possible views the wrong was taken. The error complained of is that after the decision had been given the consequences or results of that decision were overlooked and thus the defendants lost part of the fruits of their victory.

10. They then point out that though the defendant's counsel never raised the point of limitation, and while indeed on his own showing he could have objected to the whole of the decree passed against him on this ground alone, he was primarily concerned with establishing the incidents of the distribution of the various shipments. They held that the failure of the Court to apply the law of limitation to the facts found was not an error of law so much as a failure to apply the law. The review was accordingly granted.

11. I do not think that these two cases are sufficient authority to justify the review granted in the present case. It is no doubt argued for the plaintiffs that though there is no apparent error on the face of the order, the section mentions 'record' and not 'order' or judgment.' This is undoubtedly true and in the last case mentioned it is possible that to establish the apparent error the rest of the record would have bad to be looked at as well as the judgment. That would depend on whether the facts necessary to show the question of limitation were or were not mentioned in the judgment, which in the absence of the original judgment we do not know. Accepting however that the rest of the record can also be looked into to establish the apparent error, the present case goes far beyond anything allowed either in Morari Rao v. Balavanth AIR 1924 Mad 98 or Debi Sahai-Gulzari Mal v. Basheshar Lal Band Dhar. AIR 1928 Lah 919.

12. Here we have a deliberate issue of estoppel raised and argued before the Court. The whole matter depended on a single document, namely, a compromise decree which was before the Court and the terms of which were perfectly well known to the parties. The argument raised for the plaintiffs, that the compromise decree implied the recognition of the property not being ancestral, was rejected by the Court. The issue was decided against the plaintiffs. That finding has not since been challenged, though I do not say that it may not be challenged in some future appeal against whatever decree is passed by the trial Court. Now they come forward for review on the ground that they overlooked another argument which could have been drawn from the document and which it is alleged is conclusive in their favour. If this can be allowed as a ground of review it would, it appears to me, enormously enlarge the scope of Order 47, Rule 1, while the decision of the Privy Council in Chhajju Ram v. Neki AIR 1922 PC 212 is to restrict it. It could be alleged that any new argument, whether of fact or law which had been forgotten was to be found 'on the face of the records,' for indeed no argument which a Court could listen to could be otherwise, and then there would be applications in every degree of case, from those in which the argument if allowed to be raised did not appear to admit of answer, to those in which much might be said in answer to it, but in which the parties asking for review would of course allege that their point of view was the only possible one. I cannot think that Order 47, Rule (1) can possibly cover a case where the actual issue has been fully tried by the Court, and afterwards one of the parties discovers an argument which he might have raised, based either on fact or law, and asks the Court to review its order.

13. In the result I hold that the learned District Munsif had no power to review his order and that this petition must be allowed with costs throughout and the original order restored. I may perhaps note that this will not, I understand, be a mere barren prolongation of the suit because there are other points involved, but in any case this short out by way of review to rectify a mistake which, if it is a mistake, can only be rectified on appeal is not permissible. The other petition, C.R.P. No. 1054 of 1931, does not lie and is dismissed but without costs.


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