1 IN THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 13.08.2013 CORAM : THE HONOURABLE Mr.JUSTICE G.M. AKBAR ALI Rev.Appln (MD) No.14 of 2011 and MP (MD) No.1 of 2011 in S.A (MD) No.884 of 2008 1.Maruthamuthu (died) 2.Pandiammal 3.Muthumalar 4.Mutharasi 5.Muthuramalingasethupathy (Applicants 2 to 5 are brought on record as Lrs of the deceased vide order dated 21.6.2011 and made in MP (MD) No.2/11 in Rev.Appln (MD)No.14/2011) ... Review Applicants vs 1. Lakshmanan 2. Chinnaiah .... Respondents Review Application filed Under Order 47 Rule 1 r/w Sec.114 of Civil Procedure Code against the judgment and decree dated 22.10.2010 passed in S.A.(MD)No.884 of 2008. Prayer in SA(MD). 884/ 2008: Appeal filed under section 100 of the Civil Procedure Code against judgment and decree passed in AS.18 of 2007 dated 21/02/2008 on the file of the learned Sub Judge, Devakkottai, confirming the Judgment and Decree dated 10/04/2007 made in OS.223 of 2005 on the file of Principal District Munsif, Judicial Magistrate, Karaikudi. For Appellants : Mr.S.V. Jayaraman Senior Counsel for Mr.T.V. Sivakumar For R.1 : Mr.T. Srinivasa Raghavan For R.2 : D. Panneerselvam ORDER Review Application filed against the judgment and decree dated 22.10.2010 passed in S.A.(MD)No.884 of 2008. 2. The deceased first petitioner was the first defendant in a suit filed by the first respondent for a declaration and injunction. 3. It is the case of the first respondent that the suit property of 14 acres in S.No.259 of Kallal village of Karaikudi Taluk, originally belonged to his grand father Chokkalilnga Chettiar and later inherited by his two sons Athappa Chettiar alias Manickka Chettiar and Nallappa Chettiar. The first respondent had inherited the property from the said Athappa Chettiar to an extent of 7 acres out of 14 acres. 4. The suit was resisted by the deceased review petitioner and by the second respondent, who are the sons of one Muthu Nadar. According https://hcservices.ecourts.gov.in/hcservices/ 2 to the Review petitioner, Muthu Nadar purchased half of the property from Nallappa Chettiar and the remaining half was sold in court auction which was purchased by one Saraswathi and from the said Saraswathi, Muthu Nadar purchased the property and therefore, the entire property had been purchased by his father and inherited by the review petitioner. 5. The learned Principal District Munsif, Karikudi found that the court auction purchase was not proved by the defendants and therefore, decreed the suit for 7 acres out of 14 acres. 6. An appeal was preferred in A.S.No.18 of 2007 before the learned Subordiante Judge, Devakottai. Pending appeal, the defendants produced documents relating to the court auction sale. The learned Subordiante Judge concluded that the defendants have failed to prove the court sale, confirmation of sale and delivery of possession and therefore, dismissed the appeal. Aggrieved over the same, the review petitioner preferred the second appeal. 7. While considering the rival contentions, this Court found that the Courts below were correct in shifting the burden on the defendants to prove their title and ultimately dismissed the second appeal. However, while disposing of the second appeal, this Court had observed "the substantial questions of law answered accordingly" and dismissed the second appeal. Aggrieved by such finding, 1st petitioner/defendant filed the the present review petition. Pending review, he died and subsequently the Legal heirs were brought on record. For convenience sake, they are referred to as review petitioners. 8. Though many grounds were raised regarding the findings in the second appeal, the main contention raised in this review is that each of the substantial questions of law were not individually dealt with and answered separately. 9. Reiterating the above grounds, Mr.S.V. Jayaraman, learned Senior Counsel submitted that it is a well settled principle that the substantial questions of law, which had been framed and were referred to, should be adverted to while deciding the appeal and individual findings have to be recorded on those questions of law. 10. The learned Senior Counsel submitted that formulation of substantial questions of law is not only a sine qua non for exercise of jurisdiction under Sec.100 of C.P.C and they must be individually adverted to and answered. 11. The learned Senior Counsel also pointed out that if the contentions raised by the appellants have not been considered by this court, filing of review is the only course and therefore, review is maintainable. The learned Senior Counsel relied on the following case laws: i) 2005 (2) SCC 500 (Govindaraju vs Mariamman) ii) 2012(3) L.W 303(Hardeep Kaur vs Malkiat Kaur), iii) 2012(2) SCC 196(Rasiklal Manikchand Dhariwal and another vs M.S.S. Food Products) (iv) AIR 2012 SC 1646 (Umerkhan vs Bismillabi alias Babulal Shaikh & Ors) https://hcservices.ecourts.gov.in/hcservices/ 3 12. On the contrary, Mr.T. Srinivasa Raghavan, learned counsel for the first respondent submitted that while admitting the second appeal, this court has formulated three substantial questions of law and has dealt with all the substantial questions of law, clearly and unambiguously. The learned counsel pointed out that after discussion of each substantial question of law, this court has given a clear finding and only thereafter, it has observed that all the substantial questions of law are answered accordingly and dismissed the appeal. 13. The learned counsel pointed out that review will lie only when there is an error apparent on the face of the record and this court cannot re-write its own judgment. The learned counsel further pointed out that there is concurrent finding of the courts below on the facts and the substantial questions of law were also adverted to and therefore the review is not maintainable. 14. Heard both sides and perused the materials available on record. 15. The point that arises for consideration in this review is whether the judgment and decree dated 22.10.2010 passed in S.A.884 of 2008 can be subjected for review. 16. It is a well settled principle that the Court which reviews its earlier judgment cannot rewrite the judgment. The scope under the review is very limited. Unless the conditions provided in Order 47 Rule 1 are established the Court cannot interfere or review its own judgment. 17. Order 47 Rule 1 reads as follows: 1. Application for review of judgment (1) Any person considering himself aggrieved— (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred, (b) by a decree or order from which no appeal is allowed, or (c) by a decision on a reference from a Court of Small Causes, and who, from the 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 of for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order 18. Accordingly the three grounds for a review are; (i) from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or https://hcservices.ecourts.gov.in/hcservices/ 4 could not be produced by him at the time when the decree was passed or order made, (ii) on account of some mistake or error apparent on the face of the record, and (iii)for any other sufficient reason for a review. Unless any one of the above grounds is satisfied the court is not expected to review its own order and rewrite its own judgment. 19. In 2006 2 CTC 321 (Haridas Das vs Smt.Usha Rani Banik and others, the Apex Court has held as follows: "12. In order to appreciate the scope of a review, Section 114 of the C.P.C has to be read, but this Section does not even adumbrate the ambit of interference expected of the Court since it merely states that it "may make such order thereon as it thinks fit". The parameters are prescribed in Order 47 of the C.P.C and for the purposes of this lis, permit the defendant to press for a rehearing "on account of some mistake or error apparent on the face of the records or for any other sufficient reason". The former part of the rule deals with a situation attributable to the applicant, and the latter to a jural action which is manifestly incorrect or on which two conclusions are not possible. Neither of them postulate a rehearing of the dispute because a party had not highlighted all the aspects of the case or could perhaps have argued them more forcefully and/or cited binding precedents to the Court and thereby enjoyed a favourable verdict. This is amply evident from the explanation in Rule 1 of the Order 47 which states that the fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment." 20. The present review petition is not based on the first ground viz., from the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the review petitioner or could not be produced by him at the time when the decree was passed or order made. 21. Coming to the other grounds also, namely error apparant on the face of the record or any other sufficient reason are concerned, the same do not apply and the contention raised in the review petition is that formulation of substantial question of law in second appeal is not only sine-qua-non, but each substantial question of law has to be adverted to and answered. Therefore, the only question before this Court is to consider whether each substantial question of law have been adverted to or answered specifically. https://hcservices.ecourts.gov.in/hcservices/ 5 22. In the case law relied on by the learned Senior Counsel appearing for the appellant reported In 2005 (2) SCC 500 (Govindaraju vs Mariamman), the Apex Court has held as follows: " 12. Section 100 provides that the second appeal would lie to the High Court from a decree passed in appeal by any court subordinate to the High Court if the High Court is satisfied that the case "involves a substantial question of law". It further provides that the memorandum of appeal shall precisely state the substantial question of law involved in the appeal and the High Court on being satisfied that the substantial question of law is involved in a case formulate the said question. Sub-section (5) provides that the "appeal shall be heard on the question so forumulated". It reserves the liberty with the respondent against whom the appeal was admitted ex parte and the questions of law had been framed in his absence to argue that the case did not involve the questions of law framed. Proviso to sub-section (5) states that the questions of law framed at the time of admission would not take away or abridge the power of the court to frame any other substantial question of law which was not formulated earlier, if the court is satisfied that the case involved such additional questions after recording reasons for doing so. It is abundantly clear from the analysis of Section 100 that if the appeal is entertained without framing the substantial questions of law, then it would be illegal and would amount to failure or abdication of the duty cast on the court. The existence of substantial questions of law is the sine qua non for the exercise of jurisdiction under Section 100 of the Code....." 23. However, this decision is not applicable to the case on hand as the Hon'ble Supreme Court has opined that the questions of law framed at the time of admission of the appeal were not questions of substance arising from the findings recorded by the court of fact. 24. In another case relied on by the leraned Senior Counsel for the appeallants reported in 2012(3) L.W 303 (Hardeep Kaur vs Malkiat Kaur), wherein the Hon'ble Supreme Court has found in a case that the High Court has not formulated the substantial question of law and has allowed the second appeal without forumulating any substantial questions of law. This is also not relevant to the case on hand. 25. Further the case law relied on which is reported in 2012(2) SCC 196(Rasiklal Manikchand Dhariwal and another vs M.S.S. Food Products) is also not relevant as it relates to the power of the successor Judge to proceed with the suit from the stage at which the suit was left by the predecessor. https://hcservices.ecourts.gov.in/hcservices/ 6 26. Similarly, the case law reported in AIR 2012 SC 1646 (Umerkhan vs Bismillabi alias Babulal Shaikh & Ors) is also not relevant since as it relates to the judgment passed without formulation of the substantial questions of law. 27. Adverting to the issue on hand, this court had framed the following substantial questions of law on admission: 1. Whether both the Courts below have failed to note the claim made by the plaintiff is barred by res-judicata? 2. Whether the decree granted by both the Courts below is not in consonance with and in fact contrary to exhibit B.2 and B.9. 3. Are the Courts below correct and justified in shifting the burden on the defendant without adverting to the fundamental principle of law that the plaintiff has to stand or fail on the strength of his own case and not on the weakness of the case of the defendant? 28. However, this court also observed in the judgement as follows: "The point for consideration in this second appeal is whether the Courts below are correct and justified in shifting the burden on the defendant without adverting to the fundamental principle that the plaintiff has to prove his case and cannot rely on the weakness of the defendants." 29. Though there was a substantial question relating to principle of res-judicata, much reliance was not placed by the appellant how the claim of the plaintiff was barred by res judicata. Similarly, the second substantial question of law relates to Ex.B.2 and B.9, the extract of suit register and sale certificate respectively, were discussed in the judgment. Before the trial court, to prove the purchase in court auction by one Saraswathi, the vendor of the defendant's father, the defendants have produced Ex.B.2, suit extract in O.S.No.110 of 1960. As rightly pointed out by the trial court, this document did not reflect that who was the court auction purchaser and how the delivery was effected and to whom. 30. Ex.B.4 is an Encumbrance Certificate for the period from 1960 to 1967 which reflects the four transactions: i) in S.No.259/1, out of 2 acres 4 cents, ½ share mortgaged by one Nallappa Chettiar in favour of one Kasi Viswanatha Chettiar. This is of the year 1962; ii) a court sale in favour of one Arunachalam Chettiar and others. This is of the year 1964; iii) A sale by Nallappa Chettiar and his https://hcservices.ecourts.gov.in/hcservices/ 7 sons to one Muthu Nadar (1st defendant) for an undivided ½ share. This is of the year 1965; iv) A sale by Saraswathi Ammal in favour of one Marutha Muthu (2nd defendant) for an undivided ½ share. This is of the year 1966. 31. In any event, the trial court is of the view that the defendants had not discharged their burden of proving the court sale in favour of the said Saraswathi Ammal or to any other person. 32. However, pending first appeal, the defendants sought to produce a sale certificate and also two sale deeds of the years 1965 and 1966 and a kist receipt for the year 1985. These documents were also marked as Exs.B.9 to B.11 and another application was filed to receive chitta adangal and patta which were marked as Exs.B.12 to B.16. 33. The first appellate court has also dealt with these documents. However, they were not relied upon as they were certified copies. Ex.B.14 to Ex.B.16 were also rejected on the ground that they are after the suit. 34. While disposing the second appeal, this court in paragraphs 16 and 17 observed as follows: 16. Before the trial court, the appellant has produced Ex.B.2 the extract of the suit register and Ex.B.3, dated 8.7.66, a sale deed by one Saraswathi in fvour of one Muthu Nadar. The trial court came to the conclusion that the appellant has not proved the court auction sale. In the appeal, the appellant has produced Ex.B.9 a Sale Certificate in favour of one Saraswathi. The first appeallte court found on facts that the appellant has not proved the court auction sale and confirmation of sale and delivery possession in favour of the auction purchaser. 17. It is well settled principle that in a concurrent finding of facts, the High Court cannot interfere unless the appreciation of evidence is perverse. It is the definite case of the appellant that half of the property was purchased under Ex.B.1 dated 8.11.1965 and another half was purchased under Ex.B.3 dated 8.7.1966. Ex.B.9 a sale Certificate in E.P.No.424 of 1961 in O.S.No.110 of 1960 would show that the property of an extent of 14 acres 24 cents within a specific boundary was sold. Even according to the appellant, Athappa Chettiar was not entitled for the entire extent and the boundaries do not tally with the properties sold under Exs.B.1 and B.3. 35. A perusal of Exs.B.2 and B.9 would show that one Alagappa Chettiar filed suit against Athappa Chettiar alias Manickka Chettiar (father of the plaintiff) and obtained a decree and the decree was made over to one Saraswathi Ammal and she filed EP No.424/1961 and obtained a sale. However, the properties described was "entire 14 acre and 24 cents", whereas, Athappan was entitled to only undivided ½ share. In any https://hcservices.ecourts.gov.in/hcservices/ 8 event, the auction purchaser viz., Saraswathi has sold the property to the second defendant under Ex.B.11. It is also for 14 acres and 24 cents. 36. Pointing out the above description of the property, this court in paragraph No.17 observed thus; Even according to the appellant, Athappa Chettiar was not entitled for the entire extent and the boundaries do not tally with the properties sold under Exs.B.1 and B.3. " 37. This court further held 18. As stated earlier, since the appellant/defendant was claiming title from court auction sale, the burden is upon him to prove the same. 38. While answering the substantial questions of law, particularly, the third substantial question of law, this court has upheld the general principle that the burden is upon the defendant who claims title from a court auction sale. The defendants have produced certain documents to prove the court auction sale before the first appellate court. Now, while reviewing the above judgment, this court finds that Exs.B.1 to B.16 need to be relooked and proper appreciation was not made. If B.1 to B.16 are taken into consideration and properly appriciated, then it has to be held that the defendant has discharged his burden. 39. A perusal of Ex.B.3 and B.9 on the strength of Ex.B.4 would show that the property belonged to one Chockalinga Chettiar has been dealt by his two sons Nallappa Chettiar and Athappa Chettiar. Nallappa Chettiar has sold his undivided ½ share under Ex.B.1 to the first defendant; Athappa Chettiar alias Manickam had suffered a decree in OS No.110 of 1960 and the entire property was sold in a court auction on 17.1.1964 evidenced by Ex.B.9 to one Saraswathi Ammal who was the assignee of the decree. The said Saraswathi has sold the entire property to the 2nd defendant under Ex.B.11. 40. If Ex.B.3, B.9 to B.11 ought to be reappreciated, then the first appellate court is wrong in dismissing the appeal holding that the defendant has not proved his title. Similarly, this court's observation in paragraph 17, as extracted above, may not be correct. 41. This court rejected Ex.B.9 only on the ground that it showed the total extent of 14 acres and 24 cents whereas the judgment debtor was entitled to only undivided ½ share. When the entire extent has been purchased by the defendants, who are father and son, there is no dispute on the question of extent of properties and passing of title. 42. At this juncture this court is of the view that the appellant has to be given an opportunity to demonstrate that the evidence was not properly appreciated by the first appellate court and this court has not answared the second and third substantial questions of law in its right perceptive. The plaintiff/respondent has to be given an equal opportunity to be heard on this aspect. 43. Though this court cannot rewrite its own judgment, this court is https://hcservices.ecourts.gov.in/hcservices/ 9 of the view that while disposing the second appeal, this court answered only the third substantial question of law which relates to burden of proof on the defendant, but has not answered the second substantial question of law which relates to Ex.B.1 to B.16. As stated earlier, in a review petition the court can not rewrite its own judgment. But, while reviewing, this court finds the substantial question was not properly answared. Though this court has ample power to answer this question on the above observations made, but refrain from doing so. It is not a case falling under the first ground as there is no discovery of a new evidence. The error apperant on the face of the record is also refferable to any arithmatical or other errors not the error in appreciation of evidence. One may tend to say that the judgment can be reviewed on the third ground namely, for any other reason but this court feels that respondent must be given an oppertunity to be heard. 44. Therefore, this court has to review the judgment and while reviewing the judgment, this court has to rehear the parties on the above substantial questions of law afresh. 45. Therefore, the reivew petition is allowed, judgment and decree dated 22.10.2010 is recalled and the second appeal is re-opened and the Registry is directed to post the second appeal before the concerned court for fresh disposal. Sd/- Assistant Registrar(Writs) /True Copy/ Sub-Assistant Registrar To 1.The Subordinate Judge, Devakkottai. 2.The Principal District Munsif cum Judicial Magistrate, Karaikudi. 3.The Section Officer, Judicial Department, Madura Bench of Madras High Court, Madurai. Copy to: The Section Officer,Record Clerk, V.R.Section, Madurai Bench of Madras High Court, Madurai. +1cc to M/s.T.V.Sivakumar, Advocate, in SR. No.40433. +1cc to M/s.T.Srinivasa Raghavan, Advocate, in SR. No.40755. +1cc to M/s.S.Srimathy, Advocate, in SR. No.40432. Delivery Order in Rev.Appln (MD) No.14 of 2011 13-08-2013 sr msm 13.11.2013 P9-8C https://hcservices.ecourts.gov.in/hcservices/