The court discussed the scope and extent of interference in exercise of the power of review, under Order 47 Rule 1 of CPC, and concluded that the court cannot widen its jurisdiction by taking a liberal approach, on discovery of fresh pleading, which was not raised in the existing pleadings.

ORDER :

K.Harilal, J.

1. The review petitioner herein is the appellant in RFA 167/2018, which was dismissed on 19.12.2018, by the judgment, which is sought to be reviewed. The aforesaid RFA was filed, challenging the judgment and decree, passed in OS 66/1998 of the Sub Court, Thiruvananthapuram. The said suit was one for partition filed by respondents 2 to 4 and 6 in the review petition and the review petitioner/appellant herein was the second defendant in the said suit. The review petitioner and respondents 2 to 6 are the children of the deceased Gangadharan and the 1st respondent herein. The plaint schedule property belonged to Gangadharan at the time of his death. According to respondents 2 to 4 and 6/plaintiffs, after the death of Gangadharan, the property devolved upon the review petitioner and respondents 1 to 6 and thereby they are entitled to get 1/7th share each. The review petitioner filed a written statement mainly contending that the suit is not maintainable in law, due to the institution of two earlier suits for partition as OS 66/1998 and OS 2418/1999. The court rejected the said contentions on a finding that the institution of the said suits does not preclude the plaintiff from instituting a fresh suit for partition, as OS 66/1998 was rejected, on default in payment of balance court fee and OS 2418/1999 was withdrawn with permission. The suit was decreed, as prayed for. The appeal also stands dismissed.

2. Now this review petition has been filed on the ground that the sixth respondent herein got ten and a half cents of land already from her deceased father Gangadharan on 23.9.1983 as per Ext.B1 settlement deed and the said settlement deed was executed, considering her share in the plaint schedule property. So, she is not entitled to get any share in the plaint schedule property. That apart, by Ext.B2, she has sold five cents out of ten and a half cents. Ext.B1 settlement deed executed by the father in favour of the sixth respondent and Ext.B2 sale deed executed by the sixth respondent were not available at the time of filing the appeal and hence this court could not adjudicate the sixth respondent's entitlement of share, though such a contention was also raised in the appeal. The sixth respondent, who is in possession of the document, did not produce the same. Therefore, this court as well as the court below failed to consider the recital in Ext.B1 document. Hence, the review petitioner has hereby produced the attested copy of Exts.B1 and B2 and the judgment dated 19.12.2018 is liable to be reviewed in the light of Exts.B1 and B2.

3. Heard Sri.Balagovindan, the learned counsel appearing for the review petitioner and Sri.K.B.Pradeep, the learned counsel appearing for the 6th respondent.

4. Sri.Balagovindan, the learned counsel for the review petitioner, advanced arguments exhaustively contending that a contention, which was not raised in the existing pleadings, can be taken as a ground to exercise the power under review, if the same is new and important and discovered subsequently, after the disposal of the suit/appeal. According to the learned counsel, the expression “new and important matter or evidence” contemplated under Order 47(1) of the CPC includes new and important contention, which was not raised in the existing pleadings also.

5. Per contra, Sri.K.B.Pradeep, the learned counsel for the sixth respondent opposed the said argument contending that the expression "discovery of new and important matter or evidence" does not include the discovery of new pleadings, which was not raised in the existing pleadings, even if it is new and important and discovered only after the disposal of suit/appeal. What is intended by the expression "matter or evidence" is a matter or evidence in support of the existing pleadings only. According to the learned counsel, there cannot be a re hearing or re-appreciation in review, on the basis of the new or important pleading, which was not raised in the existing pleadings. Otherwise, it