Mohammedkutty Vs Mammukutty

J.B. Koshy, J.@mdashAs per the order dated 27.11.1990 in C.R.P. No. 2184 of 1987, this Court held that respondents 1 to 6, who are respondents 1 to 6 in the review petition, are kudikidappukars and entitled to purchase ten cents of land under section 80B of the Kerala Land Reforms Act. The review petition filed by the petitioner in the revision petition is directed against the said order passed by His Lordship Justice P. Krishnamoorthy on the ground that there is error apparent on the face of the record. The petitioner had instituted O.S. No. 270 of 1970 before the Munsiff''s Court, Parappanangadi against the respondents for recovery of possession with arrears of rent from the kudikidappukars. At the time when the suit was filed, there was no proceeding initiated by the respondents under Section 80B of the Act. In the suit, respondents 1 to 6 and their deceased mother had contended that they were kudikidappukars in respect of the disputed hut and the property. The Munsiff Court referred the matter to the Land Tribunal. The Land Tribunal found the respondents are not entitled to the kudikidappu right. Accordingly, the suit was decreed by the court below as per the judgment and decree dated 20-11-1976. Meanwhile, an independent application was filed by respondents 1 to 4 as O.A. No. 66 of 1971, which was dismissed by the Land Tribunal. On appeal, the appellate authority allowed kudikidappu. When the matter was heard, the main contention was that the original application was filed subsequent to the filing of the suit was not pointed out. If the original application was filed subsequent to the filing of the suit and reference, the original application is not maintainable, as held by this Court in the decision reported in Parameswaran Thampi v. Podiyan Thomas (1984 K.L.T. 397), this Court held that when the question of tenancy is in issue in a civil court, a party to that proceeding cannot bypass the court and seek to obtain redress from a Tribunal by filing a petition under Section 72 of the Act. An attempt thus made to invite a decision on the question of tenancy by Tribunal during the pendency of the suit cannot be encouraged or supported. The Tribunal shall either wait till the civil court renders its decision or if the Tribunal proceeds to enter any finding on the tenancy, it will only be a tentative decision subject to the final decision of the civil court. The above decision was approved by the Supreme Court later. If the decision in Parameswaran Thampi''s case (1984 K.L.T. 397) was brought to the notice of the learned Judge, the decision would have been otherwise as the subsequent original application and the appellate decision were not binding on the civil court. Therefore, according to the petitioner, the order must be reviewed since there is an error apparent on the face of the record.

2. In Smt. Meera Bhanja Vs. Smt. Nirmala Kumari Choudhury, , the Supreme Court, following the decision in Satyanarayan Laxminarayan Hegde and Others Vs. Millikarjun Bhavanappa Tirumale, , held that an error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record and where an alleged error is far from self-evident and if it can be established, it has to be established, by lengthy and complicated arguments, such an error cannot be cured by a writ of certiorari according to the rule governing the powers of the superior court to issue such a writ.

3. A reading of the order, it was contended, would show that this settled legal position was not taken into account and, therefore, it is an error apparent on the face of the record. In Moran Mar Basselios Catholicos and another v. Most Rev. Mar Poulose Athanasius and ors. (AIR 1954 SC 526), it was held that misconception of an order of court is a ground for review. It was also held that the majority judgments of the Full Bench were defective on the face of it in that they did not effectively deal with and determine an important issue in the case on which depended the title of the plaintiffs and the maintainability of the suit and this was certainly an error apparent on the face of the record. In Nadubhagom N.S. Karayogam v. Gopalan Nair (1979 KLT 166), this Court held that the omission on the part of the court to follow an earlier decision either by mistake or by inadvertence is not a ground for review. In N.S.S. Ltd. v. Rev. Father K.C. Alexander ILR (1970) 1 Ker 212 , this court held that an omission on the part of the court to consider a clear provision of law, when the original judgment was passed, is sufficient ground for review of its judgment. In Sigappiachi and Others Vs. M.A.P.A. Palaniappa Chettiar, , it was held that non-raising of a point in appeal will not make the trial court decree on that point final if an error is apparent on its face and the same can be corrected in review. In Tinkari Sen and Others Vs. Dulal Chandra Das and Others, , it was held that if a Judge is convinced that he has fallen in error apparent on face of record, he can review the erroneous judgment suo motu. In Ammalu v. Vellachi ( 1973 KLT 842), this Court held that wrong assumption of court that decisions of court are in one way on a question of law amounted to error apparent on the face of the record. Therefore, it was argued that the position of law was confirmed by this Court in the decision reported in Parameswaran Thampi''s case (1984 KLT 397) and the same was not considered. It is an error of law and the order must be reviewed.

4. It is discernible from the order sought to be reviewed that the decision in Parameswarn Thampi''s case (1984 KLT 397) was not pointed out before the learned Judge when the order was passed. Even though the reference by the civil court as well as the independent decision by the Land Tribunal were considered, this question of law was not raised. A pure question of law can be raised in an appeal. But, according to me, that will not open as a ground for review. For application of Order XLVII Rule 1 CPC, an omission on the part of the court to consider an earlier decision either by mistake or inadvertence is not a ground, as held by this Court in Gopalan Nair''s case (1979 KLT 166 ). Review proceedings cannot be equated with the original hearing of the case. Merely because a ground was not argued or alternative situations were not placed before court, cannot be a ground for review (see Northern India Caterers (India) Ltd. Vs. Lt. Governor of Delhi, .

5. In Smt. Meera Bhanja Vs. Smt. Nirmala Kumari Choudhury, , it was held that in review proceedings, the court cannot sit as a court of appeal. If the reasoning adopted and the conclusion arrived at by the court are not correct, the proper course is to file an appeal and not a review petition. Since the decision in 1984 KLT 397 was not pointed out and was not raised during the hearing of the revision petition, the same was not considered and non-consideration of the point which was not raised or argued cannot be said to be an error apparent on the face of the record. Therefore, I find no reason to review the order in C.R.P. No. 2184 of 1987-H. The review petition is dismissed. In S.A. No. 802 of 1992, I do not find any reason to interfere with the impugned judgment of the 1st appellate court. It only followed the order of this Court in C.R.P. No. 2184 of 1987. Since petition to review the above order is dismissed, the second appeal is also dismissed following the decision in C.R.P. No. 2184 of 1987. In the circumstances of the case, there will be no order as to costs.