Dharmalingam vs Chakkravarthi

S.K. Krishnan, J.—The review application is filed against the judgment and decree dated 8.8.2003 passed in S.A.No. 1887 of 2002 by E.

Padmanabhan, J.

The petitioner is the appellant in S.A.No. 1887 of 2002. The above said second appeal was dismissed on 8.8.2003. However, aggrieved by

the judgment and decree, which suffers from apparent error on the face of the record, the unsuccessful appellant, has come forward with the

review application.

Heard both sides.

The learned counsel appearing for the appellant would submit that in para 10 of the judgment it is stated that the constructions were put up

during the year 1988 by encroaching the suit property. However, the learned Judge came to a conclusion that the filing of the suit in the year 1998

by the plaintiff is an early action.

Further, the learned counsel would contend that when it is admitted that the construction was put up in the year 1988 and the suit was filed in the

year 1998, i.e. after ten years from the period of construction, it cannot be said that the plaintiff took an action early by filing the suit in the year

1998 and that the second appeal should have been allowed by answering the substantial questions of law in favour of the appellant and therefore,

the judgment and decree is not sustainable because of apparent error on the face of the record and hence, the same are liable to be set aside.

Per contra, the learned counsel appearing for the respondent would contend that there is no error apparent on the face of the record, but it is

only a clerical error which can be corrected either by this Court suo motu or by filing an application by any of the parties u/s 152, C.P.C. and that

the review application is not maintainable and therefore, the same is liable to be dismissed.

In support of her contention, the learned counsel for the respondent strongly placed her reliance on the following decisions:

a. Joint Family Manager, S. Krishnamurthy v. Thakka K.G. Krishnaswamy (Deceased) and four Ors. 2001 (3) LW 674.

b. State of Punjab Vs. Darshan Singh, .

Since the review application survives on the apparent error, which is said to be committed in para 10 of the judgment in S.A.No. 1887 of 2002,

it is necessary for this Court to deal with that para for disposing of this application.

Para 10 of the judgment reads as follows:

The documents relied upon by the defendants would not establish that the construction was put up during the year 1982 as there existed a old

house well within the defendant's land and on the other hand it is clear that only during the year 1988 the defendant extended his construction by

encroaching and putting up a wall on plaintiff's land. At the earliest opportunity the plaintiff has objected, give a police complaint as deposed by

P.W. 1 and the same has been believed by the two Courts below. The contra evidence let in by the defendant in this respect has been rightly

disbelieved. I do not find any reason to interfere with the concurrent findings recorded by the two Courts below in this respect.

On a perusal of the above said para, it is revealed that during the year 1988 the defendant extended his construction by encroaching and

putting up a wall on plaintiff's land.

The contention of the learned counsel for the petitioner is when the learned Judge admitted that the construction was put up in the year 1988, it

cannot be said that the filing of the suit in the year 1998 is an early one and therefore, mandatory injunction ought not to have been granted.

It is to be noted that aggrieved by the concurrent findings of the Courts below, the defendant has filed the above said second appeal, which

was dismissed by this Court by confirming the concurrent findings of the Courts below. When that being the position, there cannot be error

apparent on the face of the record in the judgment in S.A.No. 1887 of 2002, but it could be a clerical one.

In the plaint, it is averred as follows:

On a perusal of the depositions of P.W.1, who is the plaintiff, as well as D.W.1, who is the defendant, it is revealed that the above pleadings

were corroborated.

In such circumstances, the Courts below gave concurrent findings in favour of the plaintiff. In the second appeal also the concurrent findings of

the Courts below was confirmed. In such circumstances, there cannot be error apparent on the face of the record in the judgment passed by this

Court.

In para 10 of the judgment, the learned Judge held that ""at the earliest opportunity the plaintiff has objected, given a police complaint as

deposed by P.W.1 and the same has been believed by the Courts below, after holding that ""on the other hand it is clear during the year 1988 the

defendant extended his construction by encroaching and putting up a wall on plaintiff's land"".

On a scrutiny of the above said para, in the light of the above reasoning, I am of the view that the year should be 1996 instead of 1988 as the

same could not be there and therefore, the error crept in the judgment is only a clerical one and it cannot be defined as an error apparent on the

face of the record, as per the law laid down by the Supreme Court in Thungabhadra Industries Ltd. Vs. The Government of Andhra Pradesh,

which was referred to in the decision relied on by the learned counsel appearing for the respondent in Joint Family Manager, S. Krishnamurthy v.

Thakka K.G. Krishnaswamy (Deceased) and four Ors. 2001 (3) L.W. 674 which is as follows:

... There is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision

which could be characterized as vitiated by "error apparent", A review is by no means an appeal in disguise whereby an erroneous decision in

reheard and corrected, but lies only for patent error........ It would suffice for us to say that where without any elaborate argument one could point

to the error and say here is a substantial point of law which stares one in the face, and there could reasonably be no two opinions entertained about

it, a clear case of error apparent on the face of the record would be made out.

In view of the above, what was the mistake that was crept in, in the judgment is only a clerical one and not an error apparent on the face of the

record.

Further, as rightly pointed out by the learned counsel appearing for the respondent that such clerical error can be corrected by the Court itself

or by filing an application by any of the parties u/s 152, C.P.C. and in such circumstances, the review application is not maintainable and that the

same is liable to be dismissed.

In the light of the above, what was the mistake that was crept in, in the judgment is only a clerical one and not an error apparent on the face of

the record, since in the second appeal, as already stated above, the learned Judge confirms the concurrent findings of the Courts below, there

cannot be any error apparent on the face of the record, however, in contra, when the learned Judge takes a different view reversing the decisions

of the Courts below, then there can be the circumstances to commit error apparent on the face of the record, and in such circumstances, the

review application is not maintainable and the same is dismissed.

Therefore, the sentence in para 10 of the judgment shall be read as follows:

on the other hand it is clear that only during the year 1996 the defendant extended his construction by encroaching and putting up a wall on

plaintiff's land.

In result, the review application is dismissed. This order shall form part of the order dated 8.8.2003 passed in S.A.No. 1887 of 2002. No

costs. Connected C.M.P. is also dismissed.