RANGANATHAN Vs. ASSISTANT ENGINEER

JUDGEMENT

(1.) THE petitioner/second defendant has filed this Civil Revision Petition as against the order dated 13. 03. 08 in I. A. No. 127 of 2005 in O. S. No. 141 of 2004 passed by the Learned District Munsif cum Judicial Magistrate, Arcot, Vellore district in dismissing the review petition filed under Section 114, Order 47, rule 1 of the Civil Procedure Code.

(2.) THE trial Court, while passing orders has opined that 'the application for review of judgment and decree should be supported by a concrete reasons that the error is apparent on the face of the record. Due to that error the applicant desires to review the order should be stated in the petition. As such the application is bald and fact, and further, the remedy wideopen for the petitioner is to prefer an appeal against the judgment and decree and by way of modification the petitioner want to introduce new facts and want to reverse the judgment in his favour which is not permissible under the guise of review petition' and resultantly dismissed the application without costs.

(3.) THE learned counsel for the revision petitioner the second plaintiff urges before this Court that the order of trial court dated 13. 03. 2008 is against law and the same is unsustainable and also that the trial Court should have allowed the review application when it has given a finding that suit "b" Schedule property is a common street and moreover, the trial Court ought to have decreed the prayer for mandatory injunction directing the fourth defendant to remove the house constructed and also when the Advocate Commissioner in his report in exhibit C1 has stated that "in the Udayar Street on the eastern side obstructing the access to the said street one Pandurangan has constructed a house and also encroached the suit property to some extent" and added further ,finding that the suit "b" schedule property is a common street and that the fourth defendant have no right to construct a house, then the trial Court ought to have granted a decree of mandatory injunction directing the fourth defendant to remove the house constructed in the "b" Schedule property and as a matter of fact, concept of review has been misunderstood by the trial Court when it has granted the relief of declaration and the trial Court judgment needs a review inasmuch as the refusal to grant the relief of mandatory injunction is an error apparent on the face of record, and also a sufficient reason as enjoined under Order 47 Rule 1 of Civil Procedure Code and looking at from any angle, the civil revision petition has to be allowed in the interest of justice by setting aside the final orders passed in I. A. No. 127 of 2005 by the trial Court.