PUTHIYA PURAYIL PUTHANPURAYIL USSAIN Vs. PAVAYI KUNHIRAMAN AND ORS.
HIGH COURT OF MADRAS
Puthiya Purayil Puthanpurayil Ussain
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Govinda Menon, J. -
(1.) 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.
(2.) MR . Achuthan Nambiar for the petitioner contends on the authority of - - 'Venkatarajulu v. Rattamma', : AIR 1939 Mad 293, 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 cognizant 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.;
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