K.Rathindran vs Pathapoyil Raghavan

T.R. Ravi, J

The review petitioners are the appellants in R.S.A.No.756 of 2019. The Second Appeal was dismissed by this Court at the admission stage, finding that no substantial questions of law arose. The petitioners have filed this review petition stating that this Court has committed an error in dismissing the Second Appeal, without issuing notice to the respondent. It is argued that hardship will be caused to the review petitioners if the right of way is provided to the plaintiff since it would divide their property into two. It is also sought to be contended that the plaintiff has no access to his property.

The scope for a review under Section 140 read with Order XLVII Rule 1 of the Code of Procedure, 1908 has been considered elaborately, recently, by the Hon'ble Supreme Court in the judgment in State of Telangana V. Muhammed Abdul Kazim [2024 SCC online SC 548]. The Court has held that the words “as it thinks fit” cannot be interpreted to mean anything beyond what is conferred under Order 47 Rule 1. The Court further held that the words “due diligence” though one of fact, places the onus heavily on the one who seeks a review. Paragraph 20 of the judgment is extracted for reference.

“20. Mistake or error apparent on the face of record would debar the court from acting as an appellate court in disguise, by indulging in a re-hearing. A decision, however, erroneous, can never be a factor for review, but can only be corrected in appeal. Such a mistake or error should be self-evident on the face of record. The error should be grave enough to be identified on a mere cursory look, and an omission so glaring that it requires interference in the form of a review. Being a creature of the statute, there is absolutely no room for a fresh hearing. The court has got no role to involve itself in the process of adjudication for a second time. Instead, it has to merely examine the existence of an apparent mistake or error. Even when two views are possible, the court shall not indulge itself by going into the merits.”

It can be seen from the law declared/reiterated by the Hon'ble Supreme Court that a decision, however erroneous, can never be a factor for review but can only be corrected in an appeal. It is further evident that being a creature of a Statute, there is absolutely no room for a fresh hearing in a review application and the Court has no role to involve itself in a process of adjudication for a second time. The role of the Court is merely to examine the existence of an apparent mistake or error. Keeping in view the contours of jurisdiction on a review petition, let me examine the case on record.

This Court while dismissing the appeal considered the two questions which were raised in the memorandum of Second Appeal and another question that was sought to be raised at the time of the hearing and found that none of the questions would arise in the case. The Court found that there is no inconsistency in the pleadings of the plaintiff, that the plaintiff has specifically pleaded easement by prescription, that the existence of an alternate pathway, even if it is to be found, will not destroy the claim for easement by prescription and that it is not a case where the plaintiff had tendered evidence on the question of easement of necessity and not for easement of prescription. There is nothing legally wrong or factually wrong in the above-said findings. The Court has also considered the fact that the review petitioners had not tendered any evidence in the case and had not chosen to mount the box to state their case. None of the requirements justifying the exercise of the power of review have been made out.

The review petition fails and is dismissed.