The importance of evidence and the presumption under Section 90 of the Indian Evidence Act, the application of Order 41 Rule 22 of CPC, and the limitations of invoking powers under Article 142 of the Constitution.

JUDGMENT

(Prayer: Review Application filed under Order 47 Rule 14 r/w Section 114 CPC seeking to review the judgment dated 04.02.2019 in S.A.No. 1814 of 1997 on the file of this Court.)

1. Heard Mr. D.Shivakumaran, learned counsel for the review applicants.

2. The Review Application has been filed by the 5th to 9th respondents, who are the legal representatives of the 4th respondent, seeking revisitation of the Judgment of this Court dated 04.02.2019 in S.A.No. 1814 of 1997.

3. It must be mentioned that the appellants in S.A.No. 1814 of 1997 were the plaintiffs in O.S.No. 678 of 1981. They had instituted the suit in the District Munsif Court, Krishnagiri, for partition and separate possession.

4. By Judgment dated 26.09.1991, the District Munsif, Krishnagiri, had dismissed the suit.

5. Challenging that Judgment, the plaintiffs had filed A.S.No. 49 of 1994 before the learned Additional Special Judge, Krishnagiri. By Judgment dated 27.07.1995, the learned Additional Special Judge, Krishnagiri, had dismissed the Appeal Suit. Questioning such dismissal, the plaintiffs had then filed S.A.No. 1814 of 1997.

6. Two substantial questions of law had been framed at the time of admission of the Second Appeal on 09.01.1998. Thy were as follows:-

“1. Whether the school entries show the correct date of birth of the appellants/plaintiffs?

2. Whether the First Appellate court is correct in rejecting the documents while deciding the question of limitation?”

7. The arguments in the Second Appeal were advanced on 28.01.2019 and Judgment was pronounced on 04.02.2019. The Second Appeal was been allowed with costs.

8. Claiming that there are reasons to review the said Judgment, the present Review Application had been filed as aforesaid by the 5th to 9th respondents in the Second Appeal, who are the legal representatives of the 4th defendant in the suit.

9. Two points have been raised by Mr.D.Shivakumaran, learned counsel for the review applicants. The first one is the interpretation given by this Court to Exs. A-4 and A-5 and the reasons given for their admissibility and acceptance of the contents thereof. The second point revolves around the observations made by this Court while allowing the Second Appeal holding that since no cross objections had been filed by the respondents herein, answer to the two substantial questions of law would suffice. The Second appeal was allowed on the answers given.

10. Let me first address the second issue raised by Mr.D.Shivakumaran in the first instance. The learned counsel had relied on a Judgment of the Hon'ble Supreme Court reported in 2022 1 CTC 235 :: 2021 AIR (SC) 3673 [ Shri Saurav Jain and another Vs. M/s. A.B. P. Design and Another]. The Hon'ble Supreme Court in that particular case had held that it was not necessary that a challenge to an adverse finding of a Lower Court need to be made in the form of a memorandum of cross objection. It was stated that the principles stipulated under Order 21 Rule 22 of the Code of Civil Procedure Code can be applied to petitions under Article 136 of the Constitution of the India. While holding so, the Hon'ble Supreme Court had actually exercised of its plenary jurisdiction under Article 136 of the Constitution of the India read with the powers vested to do complete justice under Article 142 of the Constitution of India and had stated that new grounds raised for the first time if it involves a question of law and which does not require additional evidence concerning jurisdiction of the Court, and which go to the root of the matter can be taken up for consideration.

11. It is thus seen that in that particular case even though reliance was placed on the facts of that case, still the Hon'ble Supreme Court had invoked its power under Article 142 of the Constitution which power is specifically endowed only on the Hon'ble Supreme Court and not on the High Court.

12. The position of law is very clear. If, a party is aggrieved by a particular finding then Order 41 Rule 22 of the Code of