IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 12TH JULY 2011 / 21ST ASHADHA 1933 RP.No. 265 of 2011() -------------------- AGAINST THE JUDGEMENT/ORDER IN CRP.10/2005 Dated 08/02/2011 .................... PETITIONER/ REVIEW PETITIONER(S): ------------------------------------------------------- K.VENKATESHA BHAT,S/O.DEVANNA BHAT, RESIDING AT ANANGOOR,KASARGOD KASBA VILLAGE, KASARGOD TALUK AND POST. BY ADV. SRI.K.G.GOURI SANKAR RAI RESPONDENT(S): RESPONDENT ------------------------------------------------- 1. KASARGOD MUNICIPALITY,REPRESENTED BY THE SECRETARY,KASARGOD P.O, KASARGOD-670 121. 2. K.KAMALAKSHA ACHARY,S/O.KORAGAPPA ACHARY,RESIDING AT ANANGOOR, KASARGOD KASBA VILLAGE, KASARGOD TALUK AND POST-670 121. THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 12/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss THOMAS P JOSEPH, J. ---------------------------------------- R.P.No.265 of 2011 --------------------------------------- Dated this 12th day of July, 2011 ORDER This petition is filed seeking a review of the order dated February 08, 2011 in C.R.P.No.10 of 2005. Petitioner, plaintiff in O.S.No.82 of 1998 of the Court of learned Additional Munsiff, Kasaragod sued respondents/defendants for damages for alleged, illegal cutting and removal of two coconut trees belonging to the petitioner. Respondents resisted the suit contending, inter alia, that it is not maintainable in view of the bar under Sec.563 of the Kerala Municipality Act (for short, "the Act”). I am told, without going into trial of disputed questions on fact the case learned Munsiff dismissed the suit holding that bar under Sec.563 of the Act applied. That dismissal was confirmed by the learned Sub Judge, Kasaragod in A.S.No.16 of 1999. The judgment/order of the courts below were challenged in this Court in C.R.P.No.10 of 2005. This Court vide order dated February 08, 2011 found no infirmity in the decision of the courts below and accordingly dismissed the civil revision. That order is sought to be reviewed on the ground that this Court while disposing of the revision did not take into account the question whether suit is maintainable in R.P.No.265 of 2011 -: 2 :- view of Sec.544 of the Act in so far as petitioner had issued statutory notice to respondent No.1 and at any rate, in view of the averments in paragraph 10 of the plaint whether the courts below were justified in dismissing the suit since according to the petitioner, first respondent while deciding to cut down the trees did not comply with the statutory provisions and has in violation of the principles of natural justice. Learned counsel contended that non consideration of the above aspects is an error apparent on the face of the record which justified a review of the order dated February 08, 2011 in C.R.P.No.10 of 2005. Learned counsel for respondents contended that there is no scope for review since the remedy of petitioner, if aggrieved by the decision in the revision, is to approach the Supreme Court. 2. Rule 1 of Order XLVII of the Code of Civil Procedure enables a party to the proceeding to seek a review when there is an error apparent on the face of the record or, when any evidence which ought to have been produced, could not be produced in spite of exercise of due diligence or, for other sufficient reasons. In the present case, it is seen from the order of this Court in C.R.P.No.10 of 2005 that question whether notwithstanding the bar under Sec.563 of the Act the suit is maintainable on the averments contained in the plaint and in particular paragraph 10 was not considered by this Court. That R.P.No.265 of 2011 -: 3 :- in my view is an error apparent on the face of the record, in that to decide whether this Court has gone into that question it is not necessary to dwelve into the record. Mere perusal of the order sought to be reviewed and averments in paragraph 10 of the plaint are sufficient. In my view, the order dated February 08, 2011 in C.R.P.No.10 of 2005 suffers from an error apparent on the face of the record requiring the said order to be reviewed. Accordingly R.P.No.265 of 2011 is allowed and order dated February 08, 2011 in C.R.P.No.10 of 2005 of this Court is reviewed. (THOMAS P JOSEPH, JUDGE) Sbna/-