Sunday 17 March 2013

review application has to be in the form of an appeal, setting out the various grounds for review as in the case of an appeal

 At the outset it should be stated that IA No.479 of 2001 is not in accordance with the provisions of Order 47, Rule 3 CPC, which lays down that the provisions as to the form of preferring appeals shall apply mutatis mutandis to application for review. So a review application has to be in the form of an appeal, setting out the various grounds for review as in the case of an appeal. But in this case the review petition is filed with the affidavit of revision petitioner, without any grounds of review. Therefore, the petition ought to have be returned for being presented in proper form as contemplated by Rule 3 of Order 47 CPC. It is obvious that the concerned members of the staff are not even conversant with the relevant provisions and mechanically number the petitions without proper check. Since procedural errors or lapses by themselves would not be a ground for dismissing a petition, the petition cannot be dismissed merely on the ground that it is not in proper form.

Andhra High Court
Palakurthy Venkateswarlu vs Noroju Manorama @ Satya Manorama ... on 23 September, 2002
Equivalent citations: 2002 (6) ALD 716, 2003 (1) ALT 231

1. Since both the revisions arise out of the same suit, they are being disposed of by a common order.
2. Revision petitioner in both the revisions is the 1st defendant. 1st respondent in both the revisions is the plaintiff and respondents 2 to 4 in both the revisions are defendants 2 to 4 in the suit OS No. 13 of 1997 on the file of the Court of the Senior Civil Judge, Mahabubabad, a suit or specific performance of agreement of sale dated 16-9-1992 executed by Venkateswarlu, father of respondents 2 and 3 and husband of 4th respondent in favour of 1st respondent. The suit was decreed ex parte on 27-4-2001 directing respondents 2 to 4 to execute a sale deed in favour of the 1st respondent in respect of the plaint schedule property and no relief was granted as against the revision petitioner who is a tenant in possession of the plaint schedule property. Subsequently revision petitioner filed IA No.303 of 2001 under Order 9, Rule 13 CPC to set aside the ex parte decree passed against him. The learned trial Judge while allowing the said IA No.303 of 2001 passed the following order:
"Petition is allowed on payment of costs of Rs. 200/- to the Legal Services Authority with a specific direction that the petitioner (1st defendant) is permitted to cross-examine the witnesses already examined by the 1st respondent (plaintiff) and defendants 2 to 4 and the respondents 2 to 4 herein. The 1st defendant is also further directed to complete his evidence within ten days from the date of passing order by adducing evidence day-by-day, failing which the petition stands dismissed. Further, with regard to the judgment passed by this Court against the defendants 2 to 4 in the suit stands good. No change or deviation and further respondents 2 to 4 and defendants 2 to 4 in the suit have no any right in allowing this petition and they cannot agitate for anything now and with his observation this petition is disposed of."
3. Subsequently, i.e., on 14-9-2001 revision petitioner filed IA No.479 of 2001 under Order 47, Rule 1 read with Section 151 CPC to review the order dated 4-9-2001 in IA No.303 of 2001 by setting aside the ex parte decree against respondents 2 to 4, i.e., defendants 2 to 4 also. He also filed IA No.480 of 2001 under Order 13, Rule 2 CPC to receive certain documents. The learned Senior Civil Judge dismissed both the petitions on 26-4-2002. Aggrieved thereby revision petitioner preferred CRP No. 2681 of 2002 against the dismissal of IA No.480 of 2001 and CRP No.2783 of 2001 against the dismissal of IA No.479 of 2001.
4. The contention of the learned Counsel for the revision petitioner is that since the suit is for specific performance of an agreement of sale said to have been executed by the deceased 1st defendant, after entering into an oral agreement of sale in favour of the revision petitioner, who filed a suit seeking specific performance of that agreement against the deceased 1st defendant and brought on record respondents 2 to 4 as his legal representatives subsequent to his death, if the ex parte decree passed against respondents 2 to 4 in this suit is not set aside. Revision petitioner would be put to great hardship and so the ex parte decree against respondents 2 to 4 also is liable to be set aside. It is his contention that the documents filed along with IA No. 480 of 2001 are very relevant for proving the contention of the revision petitioner, and since those documents were filed in the suit filed by the revision .petitioner against the deceased 1st defendant, he could not produce those documents in this suit earlier, and the learned trial Judge without keeping in view the said fact improperly dismissed the petition. He relied on Estralla Rubber v. Dassestate (Petitioner) Limited, , K. Chinna Biddamma v. J. Krishnama Naidu and Ors., , Gujjari Vittal v. Padala Sadanandam, and C. Munaswami v. V. Narasimhulu Chetty, 1971 (1) An.WR304.
5. The contention of the learned Counsel for 1st respondent is that since respondents 2 to 4 did not file any petition to set aside the ex parte decree passed against them and since there is no error apparent on the face of the record, there are no grounds to review the order passed in IA No.303 of 2001. He relied on President, Trust Board, A.B. Temple and H. Temple v. A.P. Chary, (DB), and Persion Devi and Ors. v. Sumitra Devi and Ors. 1997 (6) ALD 13 (SCSN), in support of his contention that review petition is not maintainable.
6. At the outset it should be stated that IA No.479 of 2001 is not in accordance with the provisions of Order 47, Rule 3 CPC, which lays down that the provisions as to the form of preferring appeals shall apply mutatis mutandis to application for review. So a review application has to be in the form of an appeal, setting out the various grounds for review as in the case of an appeal. But in this case the review petition is filed with the affidavit of revision petitioner, without any grounds of review. Therefore, the petition ought to have be returned for being presented in proper form as contemplated by Rule 3 of Order 47 CPC. It is obvious that the concerned members of the staff are not even conversant with the relevant provisions and mechanically number the petitions without proper check. Since procedural errors or lapses by themselves would not be a ground for dismissing a petition, the petition cannot be dismissed merely on the ground that it is not in proper form.
7. Since IA No.303 of 2001 was filed by the revision petitioner, but not by respondents 2 to 4, it is clear that respondents 2 to 4 were not interested in moving the Court to set aside the ex parte decree passed against them. Therefore., question of setting aside ex parte decree passed against respondents 2 to 4 in a petition filed by the revision petitioner (1st defendant) does not arise. But if the decree is of such a nature that it cannot be set aside only against the defendant that is seeking to set aside the ex parte decree, the decree can be set aside against all or any of the other defendants, who did not seek for such a relief in view of proviso to Rule 13 of Order 9, which reads:
"Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also."
8. The relief sought against the revision petitioner is different from the relief sought against respondents 2 to 4, i.e., defendants 2 to 4. The decree for specific performance passed against respondents 2 to 4 is not a decree of such a nature that it would result in some inconsistency if it is set aside against them only. The decree passed against respondents 2 to 4 is distinct and separate and has nothing to do with the rights, if any, of revision petitioner. For that reason and for the reason that respondents 2 to 4 did not even move the trial Court for setting aside the ex parte order passed against them, question of setting aside the decree against respondents 2 to 4 also, at the instance of another defendant, i.e., revision petitioner, does not arise, more so because the relief claimed in the suit against revision petitioner is different from the relief claimed against respondents 2 to 4.
9. That apart as rightly contended by the learned Counsel for 1st respondent, review is neither an appeal nor rehearing of the matter disposed of earlier. If the revision petitioner felt aggrieved by the order of trial Court in IA No.303 of 2001 in not setting aside the ex parte decree against respondents 2 to 4 also, even though they did not seek such a relief, he ought to have questioned the order of the trial Court in IA No.303 of 2001 in a superior Court in appropriate proceeding. Under the guise of a review petition he cannot seek a rehearing of the IA No.303 of 2001. In A.P. Chary case (supra) relied on by the learned Counsel for 1st respondent it is held that a review petition cannot be treated as a petition for rehearing of the proceeding which was disposed of. In Parsion Devi case (supra), it is held that in an petition for review, only mistake or an error apparent on the face of the record can be corrected, and that review proceedings cannot be allowed to be treated as an appeal in disguise. All the decisions relied on by the learned Counsel for revision petitioner cited 1 to 4 supra have no relevance or application for deciding this revision since they relate to amendment of pleadings, and since IA No.499 of 2001 is a petition seeking review and is not a petition for amendment of pleadings. Therefore I am not referring to those decisions for deciding this revision.
10. Since respondents 2 to 4 did not file a petition to set aside the ex parte decree against them, and since the relief granted to 1st respondent (plaintiff) against respondents 2 to 4 (defendants 2 to 4) has nothing to do with the relief sought against the revision petitioner, and since revision petitioner, though felt aggrieved by the order in IA No.303 of 2001 allowed it to become final without questioning the same in a superior Court, and since there is no error apparent on the face of record in the order in IA No.303 of 2001, I find no grounds to interfere with the order of the trial Court dismissing the review petition. Hence, the revision is dismissed with costs.
CRP No.2681/2002:
11. The learned Counsel for the revision petitioner relying on Gopidi Naga Reddy v. K. Sri Ram, 1976 (2) An.WR 29, contended that the order of the trial Court refusing to receive the documents is erroneous and is liable to be set aside.
12. Recently, the Supreme Court in Madanlal v. Shamlal, , while holding that 'good cause' in Rule 2 of Order 13 CPC requires a lower degree of proof as compared to 'sufficient cause', held that the said rule cannot be construed liberally, and the High Court, in a revision, cannot interfere with an erroneous order dismissing an application under Order 13, Rule 2 CPC, unless it is shown that the trial Court had acted with material irregularity in exercise of its jurisdiction and that order would result in failure of justice. In that case in a suit for specific performance, defendant wanted to produce certain documents at a belated stage under Rule 2 of Order 13 CPC with a plea that those documents were misplaced by a person to whom they were entrusted, but the affidavit of that person who allegedly misplaced those documents was not filed. There was no reference to those documents in the written statement also. The trial Court dismissed the said petition and that order was confirmed by the High Court. On appeal to Supreme Court, the Supreme Court held that the High Court rightly affirmed the dismissed of the application filed by the defendants.
13. The case of the revision petitioner is that he filed a suit for specific performance against Venkateswaurlu father of respondents 2 to 4 basing on an oral agreement of sale in his favour, and that he filed the documents, now sought to be produced, in the suit filed by him. The contention of the 1st respondent is that the suit filed by the revision petitioner against Venkateswarulu was dismissed long back, and this petition IA No.479 of 2001 is filed only with a view to drag on the proceedings.
14. The documents sought to be produced now are miscellaneous receipts issued by Gram Panchayat in the name of Sri Ram Traders, rent receipts showing payment of rent by K. Venkateswarulu, etc. The trial Court holding that those documents are in no way connected with the suit property dismissed the petition. Since the revision petitioner failed to explain as to how the said documents are relevant in this suit, and since his suit for specific performance filed against the deceased 1st defendant admittedly was dismissed, it cannot be said that the trial Court acted with material irregularity in dismissing the petition.
15. Hence, I find no merits in this petition and so this revision is also dismissed with costs.
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