Puthiya Purayil Puthanpurayil Ussain vs Pavayi Kunhiraman and Others

Govinda Menon, J.—R. I. A. No. 3041 of 1947 was an application made by one of the parties in O. S. No. 789 of 1944 on the file of the

Court of the District Munsif of Kuthuparamba for amendment of the plaint as well as the decree by scoring out. the name of the desom and the old

survey number and substituting in their place another desom and a fresh survey number. That application was based on the allegation that there was

a mistake made by the parties in the plaint. For some reason or other R. I, A. No. 3041 of 1947 was dismissed without the amendment being

allowed. Later on an application R. I. A. No. 645 of 1949 was made to amend the decree and plaint practically for the same reasons as had been

alleged in the earlier petition. The District Munsif, on this application allowed the amendment. The third defendant, who was aggrieved by that

amendment, instead of filing an appeal against that portion of the amended decree, applied to the lower Court by R. I. A. No. 1091 of 1949 for a

review of the order in R. I. A. No. 645 of 1949 on the ground that at the time when the order in R. I. A. No. 645 of 1949 was passed the learned

District Munsif committed an error which was apparent on the face of the record because he should have taken into consideration the fact that

since an earlier application for the same relief had been dismissed another petition was not sustainable. The lower Court has now held that the

provisions of Order 47, Rule 1, Civil P. C. have not been complied with in this application for the reason that there is no error apparent on the face

of the record and that the proper course which defendant 3 should have taken was to have filed an appeal against the amended decree.

Mr. Achuthan Nambiar for the petitioner contends on the authority of -- Sri Rajah Bommadevara Venkatarayulu Naidu Bahadur Zamindar

Garu Vs. Sri Rajah Lanka Venkata Rattamma Garu, , that where a Court overlooks a provision of law and passes an order, an application for

review of that order would lie, even if the ground for review may not be strictly one that is apparent on the face of the record, but is only an error

of law. I do not think that decision can be applied to the facts of the present case. When the District Munsif passed the order in R. I. A. No. 645

of 1949, he was cognisant of the fact that already an application for amendment of the decree and plaint had been rejected by him. It may be that

he should not have passed the order reviewing the order in R.I.A. No. 645 of 1949 following the principle of ''res judicata''. But if a Court ignores

or does not decide a case on the principle of ''res judicata'', it cannot be stated that such an error is one apparent on the face of the record. The

proper procedure which the petitioner here should have had recourse to was to have filed an appeal against the order in R.I.A. No. 645 of 1949

and contending in that appeal that the Court had no jurisdiction to amend the decree.

I, therefore, dismiss the civil revision petition but, in the circumstances, without costs.