Rajamma vs Ramakrishnan

C.S Dias, J

The civil revision petition is filed by the supplemental review petitioners 2 to 5 in IA No.2435/2011 in FDIA No.1711/1988 in OS No.49/1983 of the Court of the Additional Subordinate Judge, Palakkad. The respondents in the revision petition are the respondents 3 to 8 and supplemental respondents 9 and 10 in IA No.2435/2011.

The concise case of the petitioners in the revision petition is that, they are the legal heirs of the late Appunni – the second defendant in OS No.49/1983, which was filed for partition. The final decree was passed on 31.1.2011, allotting ‘E’ schedule property in the commission report to the plaintiff and ‘D’ schedule property to the second defendant. Aggrieved by the above allotment, the second defendant filed RFA No.307/2011 before this Court. It was contended that there was no consent between the parties as recorded by the court below in the final decree application. But this Court dismissed the appeal by reserving the right of the second defendant to move for review. Accordingly, the second defendant filed IA No.2435/2011 in FDIA No.1711/1988 to review the final decree. The same was opposed by the plaintiff. The court below, on complete misdirection of the facts and circumstances of the case, dismissed the review petition. The impugned order is illegal, improper and irregular. Hence the revision petition.

Heard;Sri.S.V Balakrishna Iyer, the learned Senior Counsel appearing for the petitioners and Sri.Jacob Sebastian, the learned counsel appearing for the respondents.

Sri.S.V Balakrishna Iyer argued that the court below has gone wrong in dismissing the review petition by holding that there is nothing noted in the order as stated in the review petition, even though the Commissioner had suggested allotment of plot ‘D’ to the plaintiff and plot ‘E’ to the second defendant. Instead, the court below has allotted the plots conversely. An understanding was reached between the parties, based on the commission report, as early as on 23.1.1996. So, plot ‘D’ is in the possession of the second defendant and plot ‘E’ is in the possession of the plaintiff. Both parties have carried out improvements in the properties. It would be a heartburn for the parties to exchange the plots at this stage. Order 26 Rule 14 of the Code of Civil Procedure specifically sanctifies the reports filed by the Advocate Commissioner. Therefore, the court below ought to have accepted the commission report and allotted the plots accordingly. Moreover, this Court in RFA No.473/2011 has permitted the second defendant to move in review. As the court below has dismissed the review petition, the petitioners have no other remedy but to invoke the revisional jurisdiction of this Court. Hence, the revision petition.

Sri.Jacob Sebastian vehemently opposed the revision petition. He relied on the decisions of the Hon’ble Supreme Court in DSR Steel (P) Ltd vs. State of Rajasthan and others [2012 KHC 4156] , Municipal Corporation of Delhi vs. Yashwant Singh Negi [2013 KHC 4282] and T.K David vs. Kuruppampady Service Co-operative Bank Ltd and others [(2020) 9 SCC 92) to canvass the position that the revision petition is not maintainable because once the court below has dismissed the review petition, there is no reversal, alteration, modification or merger of the decree, and the aggrieved person has to challenge the decree and not the order dismissing the review petition. He emphasised that the final decree was passed as early as on 31.1.2011. It is more than a decade that the petitioners are being prevented by the respondents from enjoying the fruits of the decree by resorting to one litigation, after the other. The revision petition is a frivolous litigation and may be dismissed with costs.

The question is whether there is any illegality, impropriety or irregularity in the impugned order.

The court below had passed the final decree in IA No.1711/1988 on 31.1.2011, which reads as follows:

“In the result, the final decree is passed as follows:

That the ‘E’ schedule property described in the schedule and also depicted in the accompanying plan in Ext C1, be and hereby allotted to the plaintiff.

That ‘D’ schedule be and hereby allotted separately as the share due to the second defendant.

That ‘F’ schedule also specifically described in the plan be and hereby allotted to the third defendant.

Lastly, the ‘G’ schedule be and hereby allotted to the fourth defendant.

That the sharers do give and taken possession of the schedules of properties allotted to their respective shares.

That the petitioner do deposit the value of NJS to engross final decree and be entitled to realise the proportionate value of NJS from others who are allotted with shares, and do bear his own share of value of NJS.

Challenging the above final decree, the second defendant filed RFA No.307/2011 before this Court. A Division Bench of this Court by its judgment dated 27.5.2011 held as follows:

“2. The learned counsel for the appellant says that there was no consent before the court below as recorded in the impugned order and that the allotment is contrary to law in as much as Ext.C1 report, if set aside or modified, the reasons therefor ought to have been given. We are not impressed. We do not find any specific ground of attack as regards the so-called consent, going by the memorandum of appeal. Yet, we are of the view that even if the appellant has any such plea, it is trite law that it can be had only by an application for review to the court which passed the impugned judgment and cannot be raised in an appeal before the superior court.

For the aforesaid reasons, we are of the view that the impugned order is essentially passed on consent. Hence, leaving open the right, if any, of the appellant/2nd defendant to seek its review, in accordance with law, this appeal is only to be dismissed.

In the result, this appeal is dismissed in limine, subject to what is stated above”

It is the case of the petitioners that based on the observations made by this Court, the second defendant filed IA No.2435/2011 in the final decree application. Pending the application, the second defendant died and the petitioners were impleaded as the supplemental petitioners.

The court below, after analyzing the rival contentions, dismissed the application by the impugned order, which reads as follows:

“6. The final decree was passed on 31.1.2011. This review petition was filed only on 1.8.2011 with a delay condonation petition. The important aspect is that in the final decree itself the Judge recorded that there was no objection to pass final decree from the defendant. In paragraph 4 of the final order it was specifically noted that the parties are willing to dilute the objections and there was unanimous view to modify the report of commissioner. It was further recorded that as agreed upon by the parties final decree is passed. Now the question is whether the allotment is against the report of the commissioner which was accepted. From the final order it is not specified whether that there was an unanimous opinion in changing the allotment of plots. On a reading of the order it can be seen that modification is agreed upon appropriating the profits, regarding the measurements of properties and other aspects. However, there is nothing specifically noted in the order that even though commissioner suggested allotment of D plot to plaintiff and E plot to 2nd defendant parties had agreed to change the allotment. But the important aspect is that this is not a ground to review the final decree which was passed in the case, especially when the appeal is lying before the Hon’ble High Court as pointed out by the first respondent. A review petition will lie only when there is no appeal has been preferred. This is made clear in O.47 R.1(1) (a) CPC. So, in view of the fact that appeal is preferred against this final decree, this petition has to be simply dismissed has not maintainable.

In the result, this petition is dismissed with cost of R1, R9 and R10.

The petitioners contend that the court below has erroneously dismissed the review petition.

The Division Bench of this Court has categorically held that, this Court was not impressed with the grounds of attack in the memorandum of appeal. This Court left open the right of the second defendant to seek review of the order to establish his case that there was no consent.

The court below, after re-appreciating the pleadings and materials on record, has again reiterated that the final decree was passed on the consent of the parties and there is no error apparent in the final decree warranting its review.

The Hon’ble Supreme Court in DSR Steel (P) Ltd (supra) has held as follows:

“14. The third situation with which we are concerned in the instant case is where the revision petition is filed before the Tribunal but the Tribunal refuses to interfere with the decree or order earlier made. It simply dismisses the review petition. The decree in such a case suffers neither any reversal nor an alteration or modification. It is an order by which the review petition is dismissed thereby affirming the decree or order. In such a contingency there is no question of any merger and anyone aggrieved by the decree or order of the Tribunal or Court shall have to challenge within the time stipulated by law, the original decree and not the order dismissing the review petition. Time taken by a party in diligently pursing the remedy by way of review may in appropriate cases be excluded from consideration while condoning the delay in the filing of the appeal, but such exclusion or condonation would not imply that there is a merger of the original decree and the order dismissing the review petition.”

I have gone through the records in the case and I do not find anything on record to suggest that the second defendant had objected to the final decree application as now contended before the court below and this Court.

In the light of the law laid down in DSR Steel (P) Ltd (supra) and the facts and circumstances of the case at hand, especially after the Division Bench of this Court has held that it is not impressed with the appeal and there were no grounds of attack, the petitioners cannot be permitted to start another round of litigation through this revision petition, that too on a consent decree. The revision petition is devoid of any merits and is only liable to be dismissed. Hence, I do so. The parties shall bear their respective costs.