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IN THE HIGH COURT OF MADRAS
R. SUBBIAH, T. KRISHNAVALLI, JJ.
M. Karuppuraj - Appellant
Versus
M. Ganesan - Respondent
Rev. Appli. No. 71 of 2019 and C.M.P. No. 12389 of 2019
Decided On : 06-01-2020
Civil Procedure Code - Order 47 - Rule 1 - Specific Relief Act - Section 12(3) – Condo nation of delay – Jurisdiction - Deposited balance Sale consideration - Possession of Suit property - Respondent herein as Plaintiff has instituted Suit in on file of court Additional District Court Coimbatore for Specific Performance of the Agreement - Suit was dismissed by Trial Court by a Judgment and Decree - Challenging the same, the Plaintiff/Respondent herein has filed before this Court - In Appeal even though Notice was served on Review Applicant/Defendant has not chosen to appear before this Court to defend the Appeal. However hearing of the Appeal was periodically adjourned for from and on all those hearings, there was no representation for Review Applicant/Defendant – Therefore by Judgment and Decree this Court allowed Appeal preferred by the Respondent/Plaintiff and directed him to deposit balance Sale consideration before Trial Court. Pursuant to Judgment and Decree passed by this Court Respondent/Plaintiff herein has deposited the balance Sale consideration of to the credit of Suit before Trial Court – Thereafter Respondent/Plaintiff has filed - Even in Execution Petition, Notice was ordered to the Review Applicant/Defendant after which has entered appearance through an Advocate – Held, Review Applicant also cannot be permitted to raise new plea which were not raised before Court, whose Order is sought to be reviewed. None of the above aspects are available in this case warranting us to entertain the Review - In fact Review Applicant has not chosen to appear before this Court to contest Appeal filed by Respondent/Plaintiff in spite of service of Notice - While so Review Applicant/Defendant is from raising plea of Doctrine of Election in this Review Application - In this context, we are fortified by decision of Supreme Court in case of and others wherein Supreme Court after examining various Judgments, has laid down the circumstances as to when the Court can review its own Judgments relevant portion of Judgment - This Court has repeatedly held in various Judgments that the jurisdiction and scope of Review is not that of an Appeal and it can be entertained only there is an error apparent on face of record - A mere repetition through different Counsel, of old and overruled arguments, a second trip over ineffectually covered grounds or minor mistakes of inconsequential import are obviously insufficient - Review proceedings are not by way of an Appeal and have to be strictly confined to the scope and ambit of Order 47, Rule 1 of C.P.C. In review jurisdiction, mere disagreement with view of Judgment cannot be the ground for invoking the same. As long as the point is already dealt with and answered, the parties are not entitled to challenge the impugned Judgment in guise that an alternative view is possible under Review jurisdiction - Petition is closed
JUDGMENT :
R. Subbiah, J.
1. Seeking to review the Judgment and Decree, dated 27.11.2017 passed by this Court in A.S. No. 94 of 2010, the Respondent therein has come forward with this Review Application.
2. For the sake of convenience, the Respondent in this Review Applicant herein shall be referred to as 'Plaintiff and the Review Applicant shall be referred to as 'Defendant', as has been arrayed in the Suit.
3. The Respondent herein, as Plaintiff, has instituted the Suit in O.S. No. 562 of 2006 on the file of the I Additional District Court, Coimbatore for Specific Performance of the Agreement, dated 11.4.2006. The Suit was dismissed by the Trial Court by a Judgment and Decree, dated 25.8.2009. Challenging the same, the Plaintiff/Respondent herein has filed A.S. No. 94 of 2010 before this Court. In the Appeal, even though Notice was served on the Review Applicant/Defendant on 9.4.2010, he has not chosen to appear before this Court to defend the Appeal. However, the hearing of the Appeal was periodically adjourned for about 7½ years from 9.4.2010 to 14.11.2017 and on all those hearings, there was no representation for the Review Applicant/Defendant. Therefore, by the Judgment and Decree, dated 27.11.2017, this Court allowed the Appeal preferred by the Respondent/Plaintiff and directed him to deposit the balance Sale consideration before the Trial Court. Pursuant to the Judgment and Decree passed by this Court on 27.11.2017 in A.S. No. 94 of 2010, the Respondent/Plaintiff herein has deposited the balance Sale consideration of Rs. 12,60,000 to the credit of the Suit on 25.1.2018 before the Trial Court. Thereafter, the Respondent/Plaintiff has filed E.P. No. 6 of 2018 in O.S. No. 565 of 2006 on 3.3.2018. Even in the Execution Petition, Notice was ordered to the Review Applicant/Defendant on 26.4.2018 after which he has entered appearance on 25.7.2018 through an Advocate by name K. Saravanakumar. Thereafter, the Execution Petition was posted for filing counter of the Review Applicant/Defendant on various dates, but the Counter Affidavit has not been filed till 21.2.2019. Therefore, the Execution Petition was posted to 28.2.2019 for filing Draft Sale Deed and on that date, a Draft Sale Deed was also filed. Subsequently, the Execution Petition was posted for further proceedings on various dates till 11.3.2019, on which date, a fair Sale Deed was also filed by the Respondent herein before the Trial Court. While so, on 11.3.2019, the Review Applicant has filed the present Review Application before this Court with an Application in C.M.P. No. 2109 of 2019 for condoning the delay of 344 days in filing the Review Application. On 19.3.2019, the C.M.P. No. 2109 of 2019 was allowed by the Division Bench of this Court which directed the Respondent/Plaintiff to file a Counter in the Review Application. At this stage, on 28.3.2019, the Trial Court executed a Sale Deed in favour of the Respondent/Plaintiff on behalf of the Review Applicant/Defendant and on 2.4.2019, the Execution Petition No. 6 of 2018 was allowed. Thereafter, on 12.4.2019, the Respondent/Plaintiff has filed E.P. No. 80 of 2019 for delivery of possession of the Suit property. On coming to know about the filing of the E.P. No. 80 of 2019, the Review Applicant herein has taken up an Application in C.M.P. No. 12839 of 2018 in Review Application No. 71 of 2019 and this Court granted Interim Stay of the Execution proceedings on 18.6.2019. Now, the Execution Petition filed by the Respondent/Plaintiff is pending for deliverance of the property inasmuch as this Court has granted Interim Stay of all further proceedings in the Execution Petition.
4. Before venturing further, we feel that it is essential to deal with the nature of the Suit filed before the Trial Court and the defence taken by the Review Applicant/Defendant herein.
5. According to the Plaintiff, Respondent herein, the Review Applicant/Defendant is the Owner of the property described in the Plaint. The Plaintiff evinced interest
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