DR. BABU Vs. PADMAVATHI

JUDGEMENT

(1.) This revision is in challenge of order dated 29.07.2010 on I.A. No. 651 of 2010 in A.S. No. 126 of 2008 of the court of learned Sub Judge, Perumbavoor. That is an application preferred by the petitioner before learned Sub Judge for review of judgment and decree in A.S. No. 126 of 2008. Respondent obtained a decree for recovery of damages from petitioner, in O.S. No. 123 of 1998. Petitioner challenged that judgment and decree in A.S. No. 126 of 2008 and after hearing both sides learned Sub Judge dismissed the appeal on 11.03.2010. With 27 days delay petitioner filed I.A. No. 651 of 2010 for review of the appellate judgment and decree for the reason that inspite of exercise of due diligence a plea of limitation for the suit could not be urged before the appellate court. Learned Sub Judge (appellate Judge) observed that a review is not a substitute for appeal and dismissed I.A. No. 651 of 2010. That order is under challenge. Learned Counsel for petitioner contends that learned Sub Judge has not said anything about condonation of delay involved in filing I.A. No. 651 of 2010. It is contended that even if limitation was not pleaded court was bound to consider it under Section 3 of the Limitation Act (for short, "the Act").

(2.) No doubt under Section 3 of the Act court has the power to dismiss a suit or appeal even if limitation is not pleaded. But, that does not mean that if a judgment or decree is passed overlooking bar of limitation that is a matter which could be raised by way of a review under Order XLVII Rule 1 of the Code of Civil Procedure (for short, "the Code"). For, under that provision a review is permitted only when there is a mistake or error apparent on the face of record or from the discovery of a new and important matter or evidence which, after the exercise of due diligence was not within the knowledge or could not be produced or there exist any other sufficient reason justifying the review. Authoritative pronouncements say that the expression 'any other sufficient reason' occurring in Order XLVII Rule 1 of the Code must be read ejusdem generis. It is also settled position of law that "mistake or error apparent on the face of record" must be something which could be discerned by a mere look on the record. If it involves consideration of the records at depth it is not a mistake or error apparent on the face of records. Question whether the suit is barred by limitation involves serious consideration of law and fact involved. Admittedly, issue regarding limitation was not urged before the learned Sub Judge while hearing A.S. No. 126 of 2008. By no stretch of imagination it could be said that question of limitation (if arising in the suit and appeal) is a "new" matter which was not within the knowledge of petitioner inspite of exercise of due diligence. In that situation I am not persuaded to think that non consideration of the question of limitation (if any arising in the pleadings or otherwise) is a mistake or error apparent on the face of record or come within any other ground under XLVII Rule 1 of the Code justifying a review. This Court in Rajamony v. Mohamed,1978 KerLT 417 held that failure to bring to the court's attention an earlier decision is not a ground to review. Similar view was taken in Nadubhagom N.S. Karayogam v. Gopalan Nair,1979 KerLT 166 where it was held that omission of the court to follow an earlier decision of the court is not a ground for review. The grounds that petitioner might urge in challenge of judgment and decree of the appellate court in a superior forum cannot be a ground to seek a review. A review is not a substitute for an appeal against the impugned judgment. In that view of the matter application for review could not be entertained. In the circumstances failure to mention about the delay in filing that application is not fatal. I do not find merit in the contention raised so as to interfere with the impugned order.