IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 17TH DECEMBER 2009 / 26TH AGRAHAYANA 1931 RP.No. 968 of 2009() -------------------- AGAINST THE JUDGEMENT IN FAO.187/2008 Dated 30/03/2009 OF THIS COURT .................... REVIEW PETITIONER(S): RESPONDENT NO.2:- ---------------------- ARUN V., S/O. THE LATE SRI.VISWANATHAN, VISWA BHAVAN, OORUTTAMBALAM, MARANALLOOR VILLAGE, RESIDING AT ANANTHAKRISHNAM, KIZHAKKATHIL TEMPLE ROAD, ANAYARA P.O., THIRUVANANTHAPURAM. BY ADV. SRI.R.SUDHISH SMT.M.MANJU SRI.A.N.PREMLAL SRI.K.R.RANJITH RESPONDENT(S): --------------- 1. SASIDHARAN, RESIDING AT “SOUMYA”, PARAMKIMAMVILA, MARANALLOOR DESOM, MARANALLOOR VILLAG, THIRUVANANTHAPURAM. 2. GEETHA, W/O.THE LATE SRI.VISWANATHAN, RESIDING AT VISWA NILAYAM, OORUTTAMBALAM P.O., MARANALLOOR VILLAGE, THIRUVANANTHAPURAM. 3. AISWARYA, D/O. GEETHA, RESIDIGN AT VISWA NILAYAM, OORUTTAMBALAM P.O., MARANALLOOR VILLAGE, THIRUVANANTHAPURAM, MINOR REPRESENTED BY HER MOTHER AND NEXT FRIEND, RESPONDENT NO.2 (GEETHA). ADV. SRI.V.PHILIP MATHEW FOR R1 THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 17/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Review Petition No. 968 of 2009 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 17th day of December, 2009 O R D E R As per judgment dated 30-3-2009 in F.A.O. No. 187 of 2008, the judgment of Sub Judge, Neyyattinkara in A.S. No.78 of 2002 was set aside and the appeal was remanded to the Sub Court, Neyyattinkara for fresh disposal, in accordance with law. This review petition is filed by the second respondent in the F.A.O., to review the judgment, contending that though he was a major, no notice was served on him and he was not heard. It is also argued that this Court has held that an issue can be framed ,even when there is no pleading, and the finding against it is against the decision rendered by this Court earlier. The learned counsel also submitted that in such circumstances, the judgment is to be reviewed. 2. Learned counsel appearing for the first respondent pointed out that there was only one defendant, father of the petitioner, originally and he filed the appeal before Sub Court, Neyyattinkara and on his death, his widow and children, including the petitioner, got themselves impleaded and it is the mother who contested the appeal before the appellate court and this Court and in such circumstances, when there is substantial representation by the widow, who contested the appeal before the appellate court, failure to serve notice to the petitioner personally is not fatal and there is no ground to review the judgment. 3. The scope of review is not that of the appeal. Even an erroneous RP 968/09 2 judgment cannot be reviewed on that ground. Remedy of the aggrieved party is to file an appeal. Only if there is an apparent error or other sufficient reason, as provided under Order 47 Rule 1 of C.P.C. a judgment could be reviewed. 4. Even though petitioner, who was a minor when he was impleaded as Addl. appellant in A.S.No.78 of 2002, showing his age as 12 years in 2005, was not shown as major and no notice in the appeal was served on him, as petitioner was aged 12 years in 2005 when he filed an impleading application, respondent cannot be find fault for not showing as a major and serving notice on him. Even if it is taken that the petitioner was a major, when there is substantive representation by the mother, who contested the first appeal, I find no reason to review the judgment on that ground. 5. Though learned counsel challenged the judgment on merit, I find no apparent error warranting review. By judgment dated 30-3-2009 this Court only directed the Sub Judge to dispose of the appeal, in accordance with law. In such circumstances this petition is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. Mn.