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2010 Supreme(Mad) 93

High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE M. VENUGOPAL
M. Jagadeesan
Versus
K. Selvam & Others
Rev.Application Nos.137 to 139 of 2008 in C.R.P. NPD Nos.1095 to 1097 of 2004
Decided on : 07-01-2010

Advocates appeared:
For the Petitioner:T.R. Rajagopalan, Senior Counsel, for G. Kathirvelu, Advocate. For the Respondents:R.T. Shyamala, Advocate.

The power of review is restricted under the Civil Procedure Code and substantial reliefs cannot be asked for through review. The Court also emphasized that the review applications were not maintainable and dismissed them without costs.

Headnote:

Review Applications - T.N. Act 18 of 1960 - Section 10(3)(a)(iii), Section 10(3)(c), Section 10(4) - The court discussed the applicability of various sections of the T.N. Act 18 of 1960 to the facts of the case. It considered the interpretation of 'mistake apparent from the record' and the scope of the power of review available to the Tribunal under Section 114 read with Order 47 CPC. The court also examined the inherent power of review of a Court of record and the limitations of the power of review under the Civil Procedure Code. The court concluded that the review applications were not maintainable and dismissed them without costs.

Fact of the Case:

The review applicant/petitioner filed Review Applications before the Court seeking to review the order made in C.R.P. NPD Nos.1095 to 1097 of 2004. The applicant argued that only Section 10(3)(a)(iii) of the T.N. Act 18 of 1960 was applicable to the facts of the case and not Section 10(3)(c) and Section 10(4). The respondents contended that the review applications were not maintainable as there was no provision for filing a review application under the Act.

Finding of the Court:

The Court found that the review applications were not maintainable and dismissed them without costs. It held that the power of review is restricted under the Civil Procedure Code and substantial reliefs cannot be asked for through review. The Court concluded that the review applications failed.

Issues: The issues involved the applicability of various sections of the T.N. Act 18 of 1960, the interpretation of 'mistake apparent from the record', and the maintainability of the review applications.

Ratio Decidendi: The Court held that the power of review is restricted under the Civil Procedure Code and substantial reliefs cannot be asked for through review. It also concluded that the review applications were not maintainable and dismissed them without costs.

Final Decision: The Court dismissed the review applications without costs.

Judgment :-

The applicant/petitioner in the Civil Revision Petitions has filed these Review Applications before this Court praying for the review of the order dated 12.02.2008 made in C.R.P. NPD Nos.1095 to 1097 of 2004 and resultantly to revise the orders so passed therein.

2. The learned counsel for the review applicant/petitioner urges before this Court that the review applications have been filed before this Court on admitted facts and only Section 10(3)(a)(iii) of the T.N. Act 18 of 1960 is applicable to the facts of the present case and Section 10(3)(c) of the Act is not applicable and that apart Section 10(4) of the T.N. Act 18 of 1960 has no application to the employees mentioned in the G.O.MS.No.3440,(Home) dated 27th October 1960 (Published in Fort St. George, Gazette dated 9th November 1960 Part II Section 2 at page 692) and the notification " All Departments of the State and Central Government in the State shall be deemed to be engaged in essential services for the purpose of Sub Section (4) of Section 10 of the Act" applies to Departments who are tenants and not to its Employees and as a matter of fact the revision petitioner/landlord is in occupation of the first floor for the purpose of residence and the ground floor is sought for a non residential purpose and therefore only Section 10(3)(a)(iii) is applicable and not Section 10(3)(c) of the Act and therefore there is an Error Apparent on the Face of Record and if a landlord resides in one portion then Section 10(3)(a) (iii) is only applicable and not Section 10(3)(c) of the Act.

3. Expatiating his submissions, the learned counsel for the review applicant/revision petitioner submits that A Mistake Apparent from the record also includes an obvious error of law and to lend support to his contention, he relies on the decision of the Honble Supreme Court M.K.VENKATACHALAM, I.T.O. AND ANOTHER Vs. BOMBAY DYEING AND MFG. CO. LTD., AIR 1958 SUPREME COURT 875 at page 880 and 881, wherein at Paragraph No.6 it is held as follows:-

"6. It is in the light of this position that the extent of the Income-tax Officers power under S.35 to rectify mistakes apparent from the record must be determined; and in doing so, the scope and effect of the expression. @ page-SC 880

"mistake apparent from the record" has to be ascertained. At the time when the Income-tax Officer applied his mind to the question of rectifying the alleged mistake, there can be no doubt that he had to read the principal Act as containing the inserted proviso as from 1-4-1952. If that be the true position then the order which he made giving credit to the respondent for Rs.50,603-15-0 is plainly and obviously inconsistent with a specific and clear provision of the statute and that must inevitably be treated as a mistake of law apparent from the record. If a mistake of fact apparent from the record of the assessment order can be rectified under S.35, we see no reason why a mistake of law which is glaring and obvious cannot be similarly rectified. Prima facie it may appear some-what strange that an order which was good and valid when it was made should be treated as patently invalid and wrong by virtue of the retrospective operation of the Amendment Act. But such a result is necessarily involved in the legal fiction about the retrospective operation of the Amendment Act. If, as a result of the said fiction we must read the subsequently inserted proviso as forming part of S.18A(5) of the principal Act as from 1-4-1952, the conclusion is inescapable that the order in question is inconsistent with the provisions of the said proviso and must be deemed to suffer from a mistake apparent from the record. That is why we think that the Income-tax Officer was justified in the present case in exercising his power under S.35 and rectifying the said mistakes, Incidentally we may mention that in Meka Venkatappavya Vs. Additional Income-tax Officer, Bapatla, 1957-32 ITR 274 : (AIR 1958 Andh Pra 683) (D) the High Court of Andhra has t















































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