M/s K.R.M. Money Lenders vs Mr. A. Manoharan Alias Doss

E. Padmanabhan, J.—This review petition has been taken out under order 47 Rule 1 of the CPC by the plaintiff/appellant in the Second Appeal No. 771 of 1998 praying for review of the judgment and decree dated 15.4.1999 made in the Second Appeal (reported in this issue at Page 90 of 2002-3-L.W.). Heard Mr. P. Rathina Durai, learned counsel for the petitioner and Mr. K. Ilango for Mr. T.V. Krishnamachari, for the respondent.

By judgement dated 15.4.1999, this Court dismissed the Second Appeal instituted by the petitioner herein holding that the entire suit instituted by the review petitioner in O.S. No. 67 of 1984 on the file of the Sub Court. Tiruvallur will stand dismissed. In respect of the said detailed judgement, the present review petition has been moved by the appellant in the said Second Appeal.

At the time of hearing of the Second Appeal, the respondent in the Second Appeal contended that the suit is not maintainable as it has been instituted by the agent, whose power of attorney had not been produced and that the plaintiff-firm being nonexistent one he is not entitled to maintain the suit. The first appellate Court also held that the suit is not maintainable only in respect of the 9th defendant/respondent herein as other defendants have not challenged the decree, besides pointing out that the appellant has failed to substantiate the plea that K.R.M. Money Lenders is a registered partnership firm and even according to the admission of P.W.1 the partnership firm is not functioning since 1983. The first appellate Court held that in the absence of original power of attorney and in the absence of details regarding the partnership firm or registration certificate the suit is not maintainable. The first appellate Court also held that the suit has not been properly instituted by a person who is having the authority to represent K.R.M. Money Lenders on the date of filing of the suit.

In the Second Appeal at the hearing of the appeal, the learned counsel for the appellant, Mr. P. Rathina Durai contended that when no plea had been put forward by any of the defendants including the 9th defendant who is the sole respondent in the Second Appeal, the court below ought not to have allowed any evidence let in by the parties and no amount of evidence could be looked into in the absence of pleading. After detailed consideration, while following the earlier Division Bench of this Court as well as the Supreme Court this Court held that only a registered partnership firm alone could institute a suit and Section 69 of the Partnership Act not only bars but also prohibits the institution of a suit by an unregistered partnership firm. After analysing the earlier case law and the earlier pronouncements of this Court as well as the Apex Court while taking note of the fact that though the defendants 1 to 8 and 10 and 11 have not challenged the decree, nor they have raised a plea as to the maintainability of the suit, dismissed the Second Appeal, besides holding that the judgement of the Court below cannot stand in the way as there cannot be two different decrees in respect of the suit claim by exercise of its inherent powers. In that respect this Court held thus:-

"43. In terms of Order VII Rule 1 a plaint shall be rejected where the suit appears from the statement in the plaint to be barred by any law. In the present case sub Section (2) of Section 69 is a bar and the very plaint itself should have been rejected pointed out by Sathiadev, J., in 1989-2-L.W.418, cited supra and by AR. Lakshmanan, J., in 1991 TLNJ 107. The very plaint and institution of the suit is non est and the Court has no jurisdiction to proceed with the trial of such suit as the condition precedent to institute a suit has not been fulfilled in this case. Any amount of waiver will not cure such inherent defects as the defendant renders the very plaint non est and it cannot at all be proceeded. The plaint instituted is no plaint in the eye of law.

It is also axiomatic that having sustained such a condition put forward by the 9th defendant, even if other defendants have not challenged the judgment and decree of the trial Court, the decree has to be set aside, lest it will be a mockery of the system and there cannot be two different decrees on the same point though the cause of action may be different and the claims or relief�s are different. Where the very institution is inherently defective, the very plaint is non est and barred by Sec 69 (2) of the Partnership Act. This Court cannot appreciate the view taken by the first appellate Court in this respect that the plaint is valid in respect of other defendants and it is inherently defective in respect of the 9th defendant alone. Any other defect or irregularity which could be waived or given up could be put against the defendants and not such an inherent defect which renders the very plaint itself non est in law besides being without jurisdiction and barred by Sec.69(2) of the Act.

In exercise of inherent powers, this Court set aside the judgment of the two Courts below. This Court is conscious that the other defendants namely defendants 1 to 8 and 10 and 11 have not preferred an appeal. They have not been made as parties to the first appeal as well as to the Second Appeal. But at the same time, there could be no decree based upon a plaint which is non est and the inherent defect goes to the very root of jurisdiction and it is hit by Section 69(2) of the Partnership Act.

In the result, the entire suit in O.S. No. 67 of 1984 on the file of the Sub Court, Thiruvellore will stand dismissed, but without costs. Though the other defendants have not preferred appeal, on the facts of this case, there cannot be two different decrees as the very plaint itself is non est and no suit could be maintained in view of the statutory bar u/s 69(2) of the Partnership Act; besides, the power of Attorney, who had instituted the suit is incompetent as he has no power at all, the entire suit claim will stand rejected."

Mr. P. Rathina Durai, learned counsel for the petitioner advanced the very same contentions in this review petition contending that the decree against the other defendants who have not preferred the appeal who have suffered the decree ought not to have been set aside and that the 9th defendant having failed to put forward the plea and raised the question that the suit is not maintainable for want of registration of the firm, this Court will not allow the respondent to raise such a plea at the second appellate stage. The very contentions which are being advanced in this review petition were advanced by Mr. P. Rathina Durai in the Second Appeal itself. Yet, the learned counsel wants to reargue the matter in this review petition as if it is an appeal.

The scope of review is limited and it cannot be treated on par with an appeal. The legal position is well settled by very many pronouncements of the Apex Court. However, Mr. P. Ratbina Durai sought to reargue the very same point and relied upon the pronouncement of this Court in N.A. Munavar Hussan v. E.R. Narayanan (AIR 1984 Mad.47 = (1983) 96. LW.137 S.N. and judgement of K. Sampath, J., in V.V. Textiles v. M/s Mahavir Fabrics (2001 (3) MLJ 295 = 2001-3-L.W. 576 in support of his contention in this review petition.

In my considered view it is not necessary to refer to the pronouncements relied upon by the learned counsel for the review petitioner as it is an clear attempt to reargue the appeal.

The power of review as already pointed out is limited. A review cannot be treated as a re-hearing of the appeal itself. In Parsion Devi v. Sumitri Devi, reported in 1997 (8) SCC 715 = 1998-1-LW 106, their Lordships of the Supreme Court held thus:-

"Under Order 47, Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the Court to exercise its power of review under Order 47 Rule 1 CPC. In exercise of the jurisdiction under Order 47, Rule 1 CPC it is not permissible for an erroneous decision to be reheard and corrected". There is a clear distinction between an erroneous decision and an error apparent on the face of the record. While the first can be corrected by the higher forum, the latter only can be corrected by exercise of the review jurisdiction. A review petition has a limited purpose and cannot be allowed to be "an appeal in disguise"

While passing the impugned order, Sharma, J., found the order in Civil Revision as an erroneous decision, though without saying so in so many words. Mechanical use of statutorily sanctified phrases cannot detract from the real import of the order passed in exercise of the review jurisdiction. Recourse to review petition in the facts and circumstances of the case was not permissible. The aggrieved judgement debtors could have approached the higher forum through appropriate proceedings to assail the order of Gupta, J. and get it set aside but it was not open to them to seek a "review" of the order of Gupta, J., on the grounds detailed in the review petition. Therefore the impugned order of Sharma, J. cannot be sustained."

In Meera Bhanja v. Nirmala Kumari Choudhury, reported in 1995 (1) SCC 170, it was held that the review proceedings are not by way of an appeal. In that context, it has been held thus:-

" The review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47, Rule 1 CPC The review petition has to be entertained only on the ground of error apparent on the face of the record and not on any other ground. An error apparent on the face of record must be such an error which must strike one on mere looking at the record and would not require any long drawn process of reasoning on points where there may conceivably be two opinions. The limitation of powers of Court under Order 47 Rule 1 CPC is similar to the jurisdiction available to the High Court while seeking review of the orders under Article 226".

In the light of the above two pronouncements of the Apex Court, this Court holds that no case has been made out for review and review in the present case is an attempt on the part of Mr. P. Rathina Durai, learned counsel for the petitioner to re argue the very appeal itself. The review petitioner should have preferred an appeal by moving the appellate Court and the review petition is a misconception., As the very contention advanced in this review petition has already been discussed and answered against the petitioner herein, and in the absence of any one or more grounds prescribed in O.47, R.1, C.P.C., the only remedy open to the review petitioner is to move the appellate forum. The Review Petition is devoid of merits. No case is made out. Hence the Review Petition is dismissed. No costs.