IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 21ST JUNE 2010 / 31ST JYAISTHA 1932 RP.No. 469 of 2010() -------------------- AGAINST THE JUDGEMENT/ORDER IN RSA.185/2010 Dated 15/03/2010 .................... REVIEW PETITIONER/APPELLANTS: --------------------------------- 1. AMMINI NAIR, W/O.K.S.RAVINDRAN NAIR AGED 58 YEARS, RESIDING AT KURUVICHALIL NALUKETTU, PATTIMATTOM VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT. 2. LAKSHMIKUTTY AMMA, W/O.GOPALAN NAIR, AGED 86 YEARS, RESIDING AT ANDOOR HOUSE, PURAPUZHA VILLAGE, THODUPUZHA TALUK, IDUKKI DISTRICT. BY ADV. SRI.K.S.RAVINDRAN NAIR RESPONDENTS/RESPONDENTS: --------------- 1. JOSEPH, S/O.MATHEW, AGED 41 YEARS, PALAKUNNEL HOUSE, PURAPUZHA VILLAGE, VENGALLOOR KARA, THODUPUZHA TALUK, IDUKKI DISTRICT. 2. RENJITH JOHN, AGED 38 YEARS, S/O.JOHN, THEKKEKALAPURAYIL HOUSE, PUTHUPARIYARAM KARA, MANAKKAD VILLAGE, THODUPUZHA VILLAGE. 3. JAYAN, S/O.CHANDRASEKHARAN NAIR, AGED 39 YEARS, JAYAN NIVAS, KEEZHPURAPUZHA KARA, PURAPUZHA VILLAGE, THODUPUZHA TALUK. 4. SMITHA JAYAN, W/O.JAYAN, AGED 36 YEARS, JAYA NIVAS, KEESPURAPUZHA KARA, PURAPUZHA VILLAGE, THODUPUZHA TALUK. 5. ADV.S.ANIL KUMAR, S/O.SREEDHARAN NAIR, AGED 42 YEARS, ENCHAKOTTIL HOUSE, PUAPUZHA VILLAGE, THODUPUZHA TALUK. 6. RADHAKRISHNAN NAIR, AGED 59 YEARS, S/O.GOPALAN NAIR, ANDOOR HOUSE, PURAPUZHA VILLAGE, THODUPUZHA TALUK (SET-EXPARTE). THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 21/06/2010, ALONG WITH RP NO. 470 OF 2010 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- R.P.Nos.469 and 470 of 2010 --------------------------------------- Dated this 21st day of June, 2010 ORDER These appeals were disposed of by me as per a common judgment dated 15-03-2010. Petitioners before me who were appellants in the second appeals lost the case concurrently in the courts below. When the appeals came up for hearing on admission Sri. K S Ravindran Nair, power of attorney holder of petitioners filed an application in this court to permit him address arguments and after allowing that application I heard Sri. K S Ravindran Nair. He contended that finding of the courts below on the disputed facts is erroneous, relevant matters were not taken into account and in particular Ext.C2(b) series photographs which were taken by the Advocate Commissioner at the spot and which were duly proved. Learned District Judge rejected that evidence without any reason. He also contended that a mere look at Ext.C2(b) series show the mischief committed by the respondents on the disputed pathway immediately before institution of the suit. The power of attorney holder contends that while this court disposed of the second appeals, no reference has been made to Ext.C2(b) series in spite of vehement argument addressed on the said documents and that R.P.Nos.469 and 470 of 2010 : 2 : decision of this court is vitiated also on the ground that no reference was made to Ext.C2(b) series. According to the power of attorney holder that is an error apparent on the face of record and hence the common judgment of this court dismissing the second appeals in limine is required to be reviewed. The power of attorney holder has also handed over to me copy of Ext.C2(b) series for my perusal. 2. In fact, at the time these appeals came up for admission and I was hearing Sri. K S Ravindran Nair the photographs (the original of which are Ext.C2(b) series) now shown to me had been handed over to me and I had perused the same but, when the second appeals were disposed of I referred to the photographs as Ext.B1 series. It is not as if I had not perused Ext.C2(b) series at the time the power of attorney was heard. After referring to the judgment of the courts below and contentions of the power of attorney holder and learned counsel for respondents I came to the conclusion that finding of fact entered by the courts below on the evidence on record does not suffer from any infirmity or illegality. I specifically adverted to the contention raised by power of attorney based on Ext.A3 that the pathway referred to therein is a “straight” way and not the pathway that Advocate Commissioner has pointed out in Exts.C1 and C2(a). But I found that courts below rejected R.P.Nos.469 and 470 of 2010 : 3 : the contention of petitioners based on the evidence. I have given my reasoning for arriving at the conclusion in paragraphs 3 and 4 of the common judgment. 3. So far as the photographs relied on by the petitioners are concerned, reference has been made in paragraph 6 of the common judgment though, it is referred to as Ext.B1 series. I referred to the contention of the power of attorney holder that those photographs are taken after filing of the suit and after allegedly interferring with the existing pathway, considered the explanation of respondents and I stated that I am unable to accept the contention of power of attorney holder that plaint C schedule is not the way referred to in Ext.A3 and instead, it is exclusive way of petitioner Nos. 2 and 3. I also stated that this court while considering the second appeal is concerned with substantial question of law involved and that no such substantial question of law is involved. Finding of this court that the second appeals do not merit consideration flowed from above facts and circumstances stated in the common judgment. As such, the mere fact that the exhibit numbers of the photographs was wrongly given as Ext.B1 series instead of Ext.C2(b) series in the common judgment is not sufficient to order review of the common judgment. I have gone through memorandum of review petition filed on behalf of R.P.Nos.469 and 470 of 2010 : 4 : petitioners by the power of attorney. These grounds do not afford a ground for review as no error apparent on the face of the record or other grounds mentioned in Order 47 Rule 1 of the Code of Civil Procedure (for short, “the Code”) is involved. A review is not a substitute for an appeal and the review court is only concerned whether there is any error apparent on the face of the record or other circumstances as provided under Order 47 Rule 1 of the Code, none of which exist in the case on hand. Accordingly these review petitions fail and are dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-