SELVI Vs. HARIPUTHIRAN

JUDGEMENT

(1.) THIS appeal is preferred against the order passed by the Principal District Judge, Pondicherry made in Civil Review Application No.1 of 2003 dated 28.06.2004, on the ground that by allowing the review application, the first appellate court has totally reversed its findings rendered in A.S.39 of 2002 dated 31.10.2002 and thereby it travelled beyond the scope of the object of review.

(2.) THE facts, which are necessary to decide the issue involved in this appeal, are as follows: (a) THE appellants herein are the plaintiffs and the respondent is the defendant in O.S.No,350 of 2000 on the file of Principal District Munsif, Pondicherry. For convenience, the parties are referred to as they are described in O.S.No,350 of 2000. It is the case of the 1st plaintiff that she is the wife of the defendant. THE marriage between her and the defendant was solemnized in May, 1973 at Tirupathi, but the said marriage was not registered before the appropriate authorities and plaintiffs 2 to 4 were born out of the lawful wedlock between them. Subsequent to the marriage, the 1st plaintiff and the defendant were living in a rented house at Soram, Pondicherry. In the year 1985, the defendant purchased a plot in his name from and out of the sale proceeds of the jewels of the 1st plaintiff and constructed a house. THE plaintiffs and the defendant were living in the said house, more fully described in the schedule to the plaint. It is the further case of the 1st plaintiff that after sometime, the defendant developed an illicit intimacy with another woman, which resulted in frequent quarrels between the 1st plaintiff and the defendant. During April, 2000, the defendant threatened the plaintiffs that he would sell away the suit property because it stands in his name and challenged that no one can prevent him if he deliberately dispossess the plaintiffs from the suit property, but subsequently, the problem was solved at the intervention of the elders of both sides. However, the defendant, continuously harassed the plaintiffs and insisted them to vacate the suit property. On 02.06.2000, the defendant along with his henchmen came to the house of the plaintiffs and threatened them to vacate from the suit property. Hence, the plaintiffs have filed the present suit for permanent injunction restraining the defendant from interfering with their peaceful possession and enjoyment of the suit property. (b) THE case of the plaintiffs was resisted by the defendant by denying the matrimonial relationship with the 1st appellant. According to him, one Swarnammal was his wife and he married the said Swarnammal on 04.07.1960 and the marriage was registered under the Pondicherry Municipality on 06.07.1960. As such, the 1st plaintiff cannot claim as his wife and the other defendants as legitimate children of the defendant. It is the further case of the defendant that since the suit for injunction is based on the ground of marital relationship, the Family Court alone has got a jurisdiction to try the matter. So far as the ownership of the property is concerned, it is the case of the defendant that he purchased the property for a sale consideration of Rs.17,000/- and he only constructed the house and he denied any contribution by the 1st plaintiff in purchasing the plot and constructing the house thereon. THE defendant is aged about 68 years and it is the 1st plaintiff, who was trying to dispossess the defendant from the suit property with the help of rowdy elements. Hence, the balance of convenience, equity and justice are not in favour of the plaintiffs. THErefore, the plaintiffs are not entitled for injunction.(c) In order to prove the case, on the side of the plaintiffs, the 1st plaintiff examined herself as P.W.1 and marked Exs.A-1 to A-10. On the side of the defendant, the defendant examined himself as D.W.1 besides examining one Raju as P.W.2 and marked Exs.B-1 to B-22 and Exs.X-1 to X-12 were marked through D.W. 2. THE trial court, after analysing the evidence, dismissed the suit, holding that since the defendant is the owner of the suit property, there cannot be any injunction against the true owner and the 1st plaintiff is in possession of the property only as a permissive occupier and the marriage between the 1st plaintiff and the defendant is not a valid marriage. (d) Aggrieved over the same, the plaintiffs have filed an appeal before the Principal District Court, Pondicherry in A.S.39 of 2002. Though the said appeal was dismissed by the appellate court, holding that there cannot be an injunction against the true owner of the property, it has also rendered a finding, by observing that since the defendant himself admitted that he kept the 1st plaintiff as his mistress and they lived under one roof and the documents filed by the plaintiffs would show that plaintiffs 2 to 4 were born to the 1st plaintiff and the defendant, that a long cohabitation between a man and a woman is to be presumed as a valid marriage between them and the children born out of the said cohabitation are the legitimate children. While dismissing the appeal, the appellate Court has also observed that the plaintiffs have a right to reside in the suit property and confirmed the finding of the trial court in respect of the prayer of injunction.(e) Aggrieved over the finding rendered by the 1st appellate court to the effect that the plaintiffs have right to remain in the suit property, the Civil Review Application No.1 of 2003 was filed by the defendant. In the said review application, the 1st appellate court passed an elaborate order and removed the finding arrived by it to the effect that the plaintiffs have a right to reside in the suit property. While removing the said observation, the appellate court has totally reversed its own finding by holding that even if there is any long cohabitation between the 1st plaintiff and the defendant, there cannot be any presumption of marriage. THE said finding of the appellate court is totally contrary to its finding arrived at in the appeal suit. 3. Challenging the said order, the present appeal is filed by the plaintiffs, contending that the Court cannot review its own findings and the review can be done only if there is an error apparent on the face of the record. So far as this case is concerned, in the appeal, the appellate court has given a specific finding that the marriage is a valid one since a long cohabitation of a man and a woman was in existence and plaintiffs 2 to 4 were born to them and, as such, the plaintiffs have a right to reside in the suit property and subsequently, in the review application, the appellate court has reversed its findings rendered in the appeal, which is not permissible in the review application. THErefore, the appellate court has travelled beyond its scope of review. THE learned counsel for the plaintiffs, by relying upon the judgment reported in Rajeswari and another ..vs.. Sri Bhuvaneswari Cycle Mart, rep.by its Managing Partner (2007(5) CTC 588) contended that the order passed in the review application is liable to be set aside. 4. Per contra, the learned counsel appearing for the defendant contended that the order passed in the review application is well within the ambit of Order 47 Rule 1 C.P.C. THErefore, it cannot be said the 1st appellate court had travelled beyond the scope of review in the appeal suit. In support of the said contention, the learned counsel for the defendant has relied upon the judgments reported in Kandasamy ..vs.. Rathinambal (AIR 1996 Madras 252) and Murari Rao ..vs.. Balavanth Dikshit (1924 Madras 98).5. Heard the learned counsel for both sides and perused the materials on record.6. THE main question involved in this appeal is that whether the order passed in the review application by the 1st appellate court is well within the purview of Order 47 Rule 1 C.P.C.or beyond the scope of the review ? In this regard, a useful reference could be placed on the judgment relied upon by the learned counsel for the plaintiff in 2007(5) CTC 588 wherein it has been held as follows:"8. Order 47, Rule 1 of Civil Procedure Code will make it very clear that review of the order is possible under three circumstances namely- (i) on discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of a party who could not produce the same in time or(ii) when there is an error apparent on the face of the record or(iii) for some other sufficient reason".7. So far as the case on hand is concerned, originally the appellate court has come to the following conclusion:"14. Though the first plaintiff claims that she was the legally wedded wife of the defendant, the marriage is not proved, but it is admitted that the defendant has allowed her to live in the house and he even admitted that he kept her as his mistress. All the documents filed by the plaintiff would establish that plaintiffs 2 to 4 were born to the first plaintiff and the defendant and all were residing under one roof. Our Courts have held a long cohabitation between a man and a woman is to be presumed for a valid marriage between a man and a woman and the children born out of the said cohabitation are the legitimate children.15. Having allowed the first plaintiff to live with him under one roof and after admitting the relationship with her, the defendant cannot now say that the first plaintiff is not the legally wedded wife and the plaintiffs 2 to 4 are illegitimate children".8. On coming to such a conclusion, the appellate court has held that though the 1st plaintiff is not the absolute owner of the suit property, she is having a right to remain in the suit property along with her children. But, subsequently, in the review application, the learned Judge has totally reversed his finding and concluded as follows:"10...Even if there is any long cohabitation between the first plaintiff and the defendant there cannot be any presumption of marriage. THE children can be legitimate only if the marriage is proved. It has been held by this Court and the trial court that the marriage between the 1st plaintiff and the defendant has not been proved and established. No marriage extract obtained from the authorities of Sri Elumalayan Temple, Tirupathy, has been produced. THErefore, there is no valid form of marriage between the 1ST plaintiff and the defendant and that the plaintiffs 2 to 4 are not the legitimate children".Thus, by reversing the finding arrived at by it in the appeal, the first appellate court removed the observation made in the original judgment to the effect that the plaintiffs have a right to reside in the suit property, by allowing the review application. Now, the question is whether the correction made by the first appellate court is in pursuance of an error apparent on the face of the record or the correction would amount to reversal of its original finding. On a careful scrutiny of the discussion made in the earlier judgment as well as in the review judgment, it could be seen that the appellate court has earlier come to the conclusion that there is a long cohabitation between the man and woman to be presumed for a valid marriage between a man and women and the children born out of the said cohabitation are the legitimate children.9. A reading of the discussion made in the said judgment would show that the appellate court has come to the said conclusion by taking into consideration the evidence placed before it and also the facts and circumstances of the case. THE observation made by the first appellate court that the plaintiffs are having a right to reside in the suit property is a consequence of elaborate discussion made in the judgment, on evidence. Under such circumstances, the removal of the said observation by reversing its finding in the appeal, certainly, cannot be said 'rectifying the error apparent on the face of the record'. In my opinion, the finding of the first appellate court in the appeal can be questioned only by way of an appeal before the High Court since the original finding was arrived at by the Court after application of its mind to the facts and circumstances of the case. Even if the finding of the appellate court is wrong, the same cannot be rectified by way of review. In this regard, the judgment relied on by the learned counsel for the plaintiffs reported in 2007(5) CTC 588, stated supra, can be taken as a useful reference to decide the present case. As pointed out by the learned counsel for the plaintiffs, the circumstances that have been described for reviewing the order in the relied upon judgment, are not available in this case. So far as the judgments relied on by the learned counsel for the defendant in 1924 Madras 98 and AIR 1996 Madras 252 (cited supra) in support of her contention that a rule of review can be made applicable not only to the error found in the facts but also error found on law, will not apply to the facts of this case, for the reason that the finding arrived at by the first appellate court in the appeal suit is not by any mistake in understanding the legal principles, whereas in the instant case, the finding is based on the evidence available on record. But the judgments relied upon by the learned counsel for the defendant deal about reviewing the order, if there is error apparent on the face of record either in law or on facts. THErefore, I am not inclined to accept the submissions made by the learned counsel for the defendant/respondent.Consequently, the appeal is allowed and the order passed in the review application dated 28.06.2004 is set aside. No costs. Consequently, connected C.M.Ps.are closed.