Rev.Appl.No.170 of 2010

IN THE HIGH COURT OF JUDICATURE AT MADRAS

RESERVED ON

06.04.2023

PRONOUNCED ON

12.04.2023

CORAM:

THE HONOURABLE Mr.JUSTICE V.LAKSHMINARAYANAN

Rev.Appl.No.170 of 2010

in

S.A.No.1913 of 2003

1.Vathumalai

2.Rupavathy

3.Muniammal

4.Saroja

5.Jaiganesh

6.Saravanan

...Review Petitioners/Appellants

Vs.

1.Jothi Gandhi

2.Sabapathy

...Respondents.

PRAYER: Review Application filed under Section 114 read with

Order LXVII Rule 1 of CPC to review the judgment and Decree dated

31.08.2010 made in S.A.No.1913 of 2003.

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Rev.Appl.No.170 of 2010

For Appellants

: W.R.Subashiri

for Ms.R.Raja Lakshmi

For Respondents : W.M.Abdul Majeed

ORDER

This is a review petition filed to review the judgment and decree of

this court in S.A.No.1913 of 2003 dated 31.08.2010.

2. The proceedings arose as follows:-

(I). One Govindaswami executed a settlement deed in favour of his

brother Krishnaswamy on 11.07.1970. After a gap of the 13 years, he

executed a sale deed in favor of his son in law on 23.02.1983. One year

thereafter, he canceled the settlement deed by a document dated 23.02.1984.

Hence the said Krishnasamy filed a suit for declaration and for injunction in

O.S.No.606 of 1987 on the file of the District Munsif Court at Gudiyatham.

The suit was dismissed on the ground that only a certified copy of the

settlement deed was produced.

(II). It was taken on appeal in A.S.No.136 of 1994 before the

Principal District Judge at Vellore. The appeal was dismissed. The finding

that only a certified copy had been filed and the settlement deed was not

proved, stood confirmed against which S.A.No.1913 was presented.

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3. My predecessor had dismissed the appeal on the ground that since

the settlement deed was denied, the plaintiff had not proved the same in

accordance with law. Therefore, he took a view that the secondary evidence

has to be proved first and only thereafter the burden shifts to the

respondents to disprove the same.

4. It is pertinent to point out that the very same learned Judge had

issued notice in the review when it was pointed out to him that the plea was

not that the settlement deed was denied but that the settlement deed was not

acted upon.

5. Heard Ms.Raja Lakshmi, Learned Counsel for the Appellants and

Mr.Abdul Majeed, Learned Counsel for the Respondents. The scope of the

review is very limited. I only have to see if there is an error apparent on the

face of the record. The Learned Counsel for the Review petitioner took me

through the grounds of the review and had submitted that the settlement

deed was not specifically denied but the plea was that the document under

Ex-A2-settlement deed was not acted upon. She would further submit that

the respondent would plead that the settlement deed was canceled and

therefore, one has to presume that the document had been executed in

accordance with law. According to her, the cancellation of a settlement deed

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Rev.Appl.No.170 of 2010

would arise, only if it had been executed.

6. Mr.Abdul Majeed, Learned Counsel for the Appellants would raise

an objection that this review is not maintainable, in view of the judgment of

the Supreme Court in S.Madhusudhan Reddy Vs. V.Narayana Reddy and

Ors. (Manu/SC/1013/2022) dated 18.08.2022. He invited my attention to

paragraph No.20, in particular 20.2 Sub-Clause No.VI stating the mere

possibility of two views on the subject cannot be a ground for review.

7. I went through the order of the Learned Single Judge. My

predecessor had dismissed the appeal on the ground that as no proper

explanation had been given for production of the secondary evidence and

since they fail to prove the secondary evidence as per Evidence Act, no

further interference is necessary in the appeal.

8. I asked a pointed question to Mr.Abdul Majeed, wheth