IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :20.07.2009 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL Review Application No.4 of 2009 and M.P.No.1 of 2009 T.Usha Rani ... Applicant Vs. G.Venkatesan ... Respondent Application filed under Order 47 Rule 1 and 114 of Civil Procedure Code, against the order dated 17.12.2008 made in Tr.C.M.P.No.342 of 2008 passed by this Court. For applicant : Mr.A.M.Packianathan Easter For respondent : Mr.V.Bharathidasan ORDER The review applicant/petitioner has preferred this review application praying to set aside the order of this Court dated 17.12.2008 passed in Tr.C.M.P.No.342 of 2008. 2.Earlier, the review applicant has filed Tr.C.M.P.No.342 of 2008 before this Court in H.M.O.P.No.31 of 2007 on the file of learned Sub Judge, Mannargudi praying for issuance of an order by this Court to withdraw the H.M.O.P.No.31 of 2007 from the file of Sub Judge, Mannargudi and to transfer the same to the Family Court at Chengalpattu or to any other Court having jurisdiction. 3.The respondent/husband has filed a detailed counter to the Tr.C.M.P.No.342 of 2008 and this Court after hearing the learned counsel appearing for the parties on 17.12.2008 has inter alia passed the following order: "Be that as it may, as far as the present case is concerned, the respondent/husband is suffering from a congenital heart disease, as seen from the Echocardiogram report dated 10.09.2008 and therefore, healthwise he is not quite capable enough to travel more than 300 kilometers from his residential place at Thiruthuraipoondi and in that view of the matter, the balance of convenience is only in his favour and resultantly, the transfer CMP fails and the same is hereby dismissed in the interest of justice." and has also granted the liberty to the applicant/ petitioner (wife) to file necessary application before the Sub Court, Mannargudi for seeking exemption from personal appearance when situation warrants and as and when the application filed by the petitioner/wife, the Sub Judge, Mannargudi is directed to deal with the same on merits taking a liberal view in the matter and in any event, the trial Court is directed to dispose of the main H.M.O.P.No.31 of 2007 within a period of four months from the date of receipt of copy of this order etc. 4.The learned counsel for the applicant/petitioner contends that the respondent/husband who has claimed that 'he cannot travel to Chennai has come down to Chennai in the month of October 2008 to instruct his counsel to swear and sign in the counter affidavit and that the document filed by him in Court is a Xerox copy of an ECG report and the same is not conclusive proof to decide that the person is suffering from heart disease and therefore, there is an error on the face of record and moreover, the respondent/ husband in his counter to Tr.C.M.P.No.342 of 2008 has admitted that he is a permanent resident of Thiruthuraipoondi and working as an Assistant in the Highways Department at Thiruvarur and every day he is travelling by four buses in the rush hours for more than three hours per day i.e. morning and evening about more than 60 kilometres by bus so as to enable him attend to his work and in fact, the respondent/husband traverse by one bus from his residence to Thiruthuraipoondi bus stand and another bus to Thiruthuraipoondi to Thiruvarur and indeed the ECG report is not the medical report of the respondent/ husband, but the same is only a clinical report and as such, the same is not a decisive and conclusive one and also that copy of the ECG report has not been furnished to the applicant or his counsel and furthermore, no medical certificate or report has been filed by the respondent/ husband in regard to the treatment is undergoing as observed by this Court in the order dated 17.12.2008 passed in Tr.C.M.P.No.342 of 2008 and even those individuals who undergone surgery are travelling in vehicles and attending day to day work and hence, this Court placing reliance on ECG report is not based on sound principles and documentary evidence and therefore, the observation appears to be an error apparent on the face of records which is liable to be set aside by means of this Court allowing the review application filed by the applicant in the interest of justice. 5.In response the learned counsel for the respondent/ husband submits that this Court has looked into the ECG report dated 10.9.2008 produced on the side of respondent/ husband during the time of hearing in Tr.C.M.P.No.342 of 2008 and has come to the conclusion that the respondent/ husband has some heart disease for which he is taking treatment etc. and added further, in the said report the ECG measurements of the respondent/husband has been given in comparison to the normal value one who has the same and since the respondent/husband has been suffering from congenital heart disease as seen from the ECG report dated 10.9.2008 healthwise he is not quite capable enough to travel more than 300 kilometres from his residential place at Thiruthuraipoondi and because of the fact that the balance of convenience has been in his favour ultimately this Court has dismissed the Tr.C.M.P.No.342 of 2008 and therefore, the said order is a valid and sound one and in any event, the review application is not maintainable and the remedy open to the review applicant/petitioner is to take further proceedings in law as against the dismissal order dated 17.12.2008 passed by this Court in Tr.C.M.P.No.342 of 2008 and accordingly, prays for dismissal of the present review application filed by the applicant. 6.In support of his contention that the review application filed by the applicant/wife is per se not maintainable before this Court, the learned counsel for the respondent/husband cites the decision of Hon'ble Supreme Court in Jain Studies Limited V. Shin Satellite Public Company Limited (2006) 5 SCC 501 at page 502 wherein it is among other things observed that 'The power of review cannot be confused with appellate power which enables a superior court to correct all errors committed by a subordinate court. It is not rehearing of an original matter. A repetition of an old and overruled argument is not enough to reopen concluded adjudications. The power of review can be exercised with extreme care, caution and circumspection and only in exceptional cases.' 7.He also relies on the decision of this Court in Hindustan Photo Films Company Limited, Ootacamund V. Vinoba 1998 MLJ (Suppliment) at page 402 and 403 whereby it is held as follows: "It is settled that the power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. As observed by the Supreme Court in Meera Bhanja v. Nirmala Kumari Chowdhury, (1995) I.S.C.C. 170, Chhidda Singh, the Deputy Director of Consolidation, (1998) 3 S.S.C. 441, Chandrakanta V. S.K.Habib, A.I.R. 1975 S.C. 1500, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of Court of Appeal and the same cannot be a ground for review." 8.He also presses into service the decision of Hon'ble Supreme Court in S.Bagirathi Ammal V. Palani Roman Catholic Mission 2007 (5) CTC 892 whereunder it is held that 'the Review is permissible (a) from the discovery of new and important matter or evidence which, after the exercise of due diligence could not be produced by the party at the time when the decree was passed; (b) on account of some mistake; (c) where error is apparent on the face of the record or is a palpable wrong; (d) any other sufficient reason. If any of the conditions satisfy, the party may apply for a review of the judgment or order of the Court which passed the decree or order. The provision also makes it clear that an Application for Review would be maintainable not only upon discovery of a new and important piece of evidence or when there is 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. An error contemplated under the Rule must be such which is apparent on the face of the record and not an error which has to be fished out and searched. In other words, it must be an error of inadvertence. It should be something more than a mere error and it must be one which must be manifest on the face of the record. When does an error cease to be mere error and becomes an error apparent on the face of the record depends upon the materials placed before the Court. If the error is so apparent that without further investigation or enquiry, only one conclusion can be drawn in favour of the appellant, in such circumstances, the review will lie. Under the guise of review, the parties are not entitled re-hearing of the same issue but the issue can be decided just by a perusal of the records and if it is manifest can be set at right by reviewing the order etc.' In short, a review cannot be a cloak for re-hearing. 9.Continuing further, he brings to the notice of this Court that to the reported decision in M/s.Nilakantan and Brothers Construction Private Limited, Chennai V. Government of Tamil Nadu, represented by the Chief Engineer, Chennai (2006) 2 MLJ 497 at page 498 (DB) wherein it is laid down as follows: "It is well settled that in the garb of review, a litigant can neither seek for rehearing the appeal nor can ask that the Court deciding the review should sit as an appellate authority over the earlier decision. It would also be not open to the litigant to make new head of claim which was never made before the arbitrator nor in the further proceedings in the Courts. Such a claim cannot be permitted to be raised for the first time in the review application." 10.As a matter of interest, this Court pertinently points out that 'an error apparent on the face of record' is one which strikes one on a mere looking of the record. A power of review cannot be employed to substitute a view. Added further, a review cannot be asked for fresh hearing/ correction of an erroneous view taken earlier. Moreover, a review is not an appeal in disguise. 11.It appears that the review applicant/wife has been set exparte in H.M.O.P.No.31 of 2007 on the file of Sub Court, Mannargudi and that an exparte decree has been passed on 02.02.2009 and also that I.A.No.47 of 2009 has been filed to set aside the said exparte decree and the same is pending before the trial Court. 12.Be that as it may, as far as the present case is concerned, on a careful consideration of respective contentions, this Court is of the considered view that the order dated 17.12.2008 in Tr.C.M.P.No.342 of 2008 in H.M.O.P.No.31 of 2007 passed by this Court is a reasoned and valid one and the same does not suffer from any error apparent on the face of record and as such, the review application is not maintainable in law inasmuch as in the guise of review the applicant cannot have a re-hearing of the entire matter by converting this Court as an Appellate Court and the same is hereby dismissed in furtherance of substantial cause of justice. Leaving the parties to bear their own costs. Consequently, connected miscellaneous petition is closed. sgl