Sudharma vs Poovan Leela

Thomas P. Joseph, J.—Defendants 2 and 3 in O.S. No. 547 of 2005 of the court of learned Munsiff, Kannur who are Appellants in A.S. No. 203 of 2006 of the court of learned Additional District Judge, Thalassery are the Petitioners in this Revision Petition which arises from the order dated May 24, 2010 on I.A. No. 1678 of 2009 in A.S. No. 203 of 2006. The suit is for declaration and injunction filed by the first Respondent against Petitioners and second Respondent (second Respondent, I am told remained ex parte in the trial court and in appellate court). Suit was decreed in part granting prohibitory injunction. That part of the decree was challenged by the Petitioners in A.S. No. 203 of 2006. Learned Counsel on both sides submitted that while the appeal was pending, there was a compromise between the contestants on 22.11.2009 but before the compromise could be produced in the court of learned Additional District Judge, Thalassery the appeal was disposed of by judgment dated 23.11.2009. Thereon Petitioners filed I.A. No. 1678 of 2009 to review the judgment and decree and the compromise petition was also produced along with the application for review. That application did not find favour with the learned Additional District Judge who dismissed it as per order dated May 24, 2010 observing that none of the grounds provided in Order XLVII Rule 1 of the CPC (for short, "the Code") exist for a review of the judgment and decree. The said order is under challenge in this proceeding. Learned Counsel for Petitioners contended, and learned Counsel for first Respondent also agreed that there was a compromise between the parties effected on 22.11.2009, but before the compromise could be produced before the learned Additional District Judge the appeal was disposed of the next day. It is also submitted by Petitioners that it affords a ground for review under Order XLVII Rule 1 of the Code in that inability to produce the compromise before the learned Additional District Judge is a sufficient reason which justified the review. Learned Counsel for first Respondent has no objection in allowing this C.R.P. and I.A. No. 1678 of 2009.

No doubt, it cannot be said that there is an error apparent on the face of the record in that the compromise though entered into a day before learned Additional District Judge pronounced judgment, was not before the learned Additional District Judge at the time he pronounced judgment. Nor is it the case of parties before me that the compromise was reported to the learned Additional District Judge before judgment was pronounced. As such there is no error apparent on the face of the record.

The second clause in Order XVII Rule 1 of the Code says that if an important matter or evidence which after the exercise of due diligence was not within the knowledge or could not be produced by the party at the time when decree was passed or order made, it is a ground for review. There is yet another clause in Order XLVII Rule 1 of the Code which says that ''for any other sufficient reason'', court could review its judgment/order. There could be no doubt that the expression "for any other sufficient reason" must be read as ejusdem generis following the earlier specific words. But I must bear in mind that when an important matter or evidence which in spite of exercise of due diligence was not within the knowledge of the party or could not be produced by him before the judgment was pronounced, is traced, that affords a ground for review. The important matter referred in Rule 1 of Order XLVII takes in the fact of compromise as well. That clause read with the expression "for any other sufficient reason" gives sufficient justification for review of judgment in view of the settlement which according to the parties was arrived at even before pronouncement of judgment but could not be brought to the notice of learned Additional District Judge before judgment was pronounced. In the circumstances I am inclined to think that there was sufficient reason for reviewing the judgment and decree.

Resultantly, the Civil Revision Petition is allowed in the following lines:

(a) Order dated Mary 24, 2010 of the court of learned Additional District Judge, Thalassery on I.A. No. 1678 of 2009 in A.S. No. 203 of 2006 is set set aside and that application will stand allowed. Consequently judgment and decree passed by the learned Additional District Judge, Thalassery in A.S. No. 203 of 2006 dated November 23, 2011 will stand reviewed.

(b) Learned Additional District Judge, Thalassery shall consider the compromise petition filed by the parties along with I.A. No. 1678 of 2009 and pass appropriate orders based on the compromise, if it is in accordance with law. Parties shall appear in the court of learned Additional District Judge, Thalassery on August 20, 2011.

All pending Interlocutory Applications will stand dismissed.