IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 10TH JUNE 2010 / 20TH JYAISTHA 1932 RP.NO. 366 OF 2010() -------------------- AGAINST THE JUDGEMENT IN SA.761/1995 DATED 08/04/2009 .................... REVIEW PETITIONER(S): RESPONDENT NO.1 ------------------------------------- KANNA, W/O. AYYAPPAN, KALLAMPARAMBA, PUDUPARAIYARAM AMSOM, PALAKKAD TALUK, PALAKKAD DISTRICT. BY ADV. SRI.C.CHANDRASEKHARAN RESPONDENT(S): APPELLANTS 2-4 AND RESPONDENT 2-4 ------------------------------------------------ 1. KESAVAN, S/O. LATE KRISHNANKUTTY, RESIDING AT MALLISSERY HOUSE, PUTHUPALAYM, C.N. PURAM.P.O, PALAKKAD-678 005 2. LAKSHMIKUTTY, D/O -DO- 3. AMBIKA, D/O. -DO- 4. KRISHNAN, S/O. AYYAPPAN, KALLAMPARAMBA, PUDUPARIYARAM AMSOM, PALAKKAD TALUK, PALAKKAD DISTRICT. 5. KUMARAN, S/O. -DO- 6. GOPALAN, S/O. AYYAPPAN, -DO- THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 10/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== R.P. No.366 of 2010 in S.A. No.761 of 1995 ==================================== Dated this the 10th day of June, 2010 O R D E R This petition is for review of judgment and decree dated 08.04.2009 setting aside judgment and decree of the court of learned First Additional District Judge, Palakkad to the extent it went against appellant-plaintiff and granting decree in his favour. Learned counsel for review petitioner/Respondent No.1 in the Second Appeal contended that instruction given to him is that there was no effective representation for review petitioner (respondent No.1 in the Second Appeal) when the case was heard and disposed of. It is also contended by learned counsel that this Court while disposing of the appeal found fault with review petitioner for not taking out a commission to prove his case of possession notwithstanding the unequivocal statement they made in Exts.A2 and A3 as to transfer of possession of property in favour of assignee. According to the learned counsel it will be in the interest of both sides if the judgment is reviewed and review petitioner is given an opportunity to take out a commission as R.P. No.366 of 2010 in S.A.No.761 of 1995 -: 2 :- suggested by this Court in paragraph 9 of the judgment. Learned counsel for respondents contends that there is nothing to be reviewed since decision is rendered on the finding that on point of law finding entered by the first appellate court is not sustainable and that the finding of fact entered by the courts below is not in accordance with the evidence on record. Further contention is that at the time of hearing review petitioner and all other respondents in the appeal were effectively represented by counsel. 2. Second Appeal was heard on two days and on both days counsel appearing for respondents in the Second Appeal including the review petitioner addressed arguments and the case was disposed of by dictating judgment in the open court in the presence of the counsel concerned. Hence there is no substance in the contention that there was no effective representation for review petitioner when the matter was heard. 3. So far as request to reopen the judgment to give opportunity to the review petitioner to take out a commission is concerned I am afraid that contention cannot be accepted. A review is neither an opportunity for rehearing of the case nor is a R.P. No.366 of 2010 in S.A.No.761 of 1995 -: 3 :- substitute of an appeal. Under Order XLVII Rule 1 of the Code of Civil Procedure a review is permitted only when there is error apparent on the face of the record or when a new and important matter of evidence which after the exercise of due diligence was not within the knowledge of the party aggrieved is discovered. No such contingency has arisen in this case. It is seen from the memorandum of review petition that the grounds stated therein are all which are to be raised in an appeal from the judgment and decree. Those grounds cannot be taken as enabling petitioner to seek review of the judgment. Review Petition fails and is dismissed. THOMAS P. JOSEPH, JUDGE. vsv