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TMI Blog1991 (9) TMI 368X X X X Extracts X X X X X X X X Extracts X X X X ..... e of plaintiffs property. Partition is claimed against the defendants 1 to 6. The 7th defendant urged, in the written statement, that he was a tenant of 11 acres 75 cents out of the suit property. The lease was allegedly created by the father of the plaintiff and the defendants 1 to 6. The issues were raised in the suit. Issue No. 3 which reads as under was tried as a preliminary issue: Whether the 7th defendant has tenancy in respect of 11 acres and 75 cents of plaint property? The learned trial Judge heard and decided the issue No. 3 as preliminary issue on 25-11-1988. The learned trial Judge held that in view of the fact that the defendants 7, 8 and 9 had obtained purchase certificates under the Kerala Land Reforms Act, the question of tenancy did not "arise", as, in his opinion, the purchase certificates implied that the defendant No. 7 was the tenant. At the trial of the remaining issues, the P.W.1 was examined on 26-11-1988. Defendant No. 7 produced Exts. B1 to B23. Thereafter the trial concluded and the suit was posted for arguments which were heard on 3-2-1989. The arguments concluded and the suit was posted for judgment on 16-2-1989. When the parties were exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nature of the process of review. To review means to view again. It is essentially a process of revising an earlier conclusion. In judicial proceedings review means to re-examine a case in certain specified and prescribed circumstances (Gopinath Deb v. Budhia Swain) is not inherent in a Court, but is a creature of statute (Grindlays Bank v. Central Govt. Industrial Tribunal, : AIR 1981 SC 606) : (1981) 1 SCWR 236. Therefore, such power must be sought in a statutory provision. Then again, where a statute creates and confers on the Court, a power of review, such power must be exercised only in the circumstances stated in the statute creating such power. I am here concerned with the power to review suo motu and not the power to review under a statutory authority. 7. I will firstly consider in paragraphs 8-13 below, judicial authorities cited in support of the power of review suo motu. 8. Learned counsel for the respondents relied upon Sankaran v. Raman, 1982 Ker LT 237 which arose out of a suit for injunction instituted in 1968 before the commencement of the Kerala Act 35 of 1969 which amended Section 125 of the Kerala Land Reforms Act. It is necessary to understand the ratio of this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with or the conduct of affairs. The word "procedure" is often used to denote "procedural" law as distinct from substantive law. Procedural law regulates the conduct of cases. Substantive law defines, confers or creates legal rights or legal status or imposes and defines nature and extent of legal duties. As against this, the function of "procedure" is to provide the machinery or the manner in which legal rights, status or legal duties may be enforced by a Court of law or Tribunal, Halsbury's Laws of England Vol. 37, Paragraph 10, Stroud's Judicial Dictionary Vol. 4, Page 1987-88, 5th Edition. 10. Since "procedure" is the mode or form of conducting judicial proceedings it follows that "procedural error" is an error of form or mode of conducting judicial proceedings. Now, what was the error committed by the Appellate Court in Sankaran's case? The error was that the Appellate Court relying upon the erroneous decision in Lissy v. Kuttan, 1976 KLT 571 remanded the case so that the trial Court could refer the issue of tenancy to the Land Tribunal. The error was in relation to the manner or mode of deciding the question of te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther question of tenancy "arises" within the meaning of Section 125(3) of the Kerala Land Reforms Act, is not a question relating to the mode, manner or mechanism of the conduct of proceedings. It is a question about substantive right. On the evidence, he concluded that the question did not arise. He committed no error of procedure in coming to such a conclusion. 13. In State of Gujarat v. Sardarbegum, (AIR 1976 SC 1695) : (1976) 2 SCWR 404 an application for review was made by the State of Gujarat before the High Court. The order sought to be reviewed was based on a concession by the State that political pension of ₹ 500/- p.m. granted to the opposite party could not be abolished under the Bombay Personal Inam Abolition Act. In consideration of this concession the opposite party deleted the prayer for payment of pension in perpetuity, thus limiting the claim of pension to the lifetime of the opposite party who died during the pendency of the writ petition in the High Court. The High Court, exceeded the scope of the petition by granting pension to the heirs of the petitioners thereby extending the grant beyond the lifetime of the petitioner. This was the patent err ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a party has remedy provided elsewhere in the Code (Nain Singh v. Koonwarier, AIR 1970 SC 997). 17. In my opinion the principles set out in paragraph 16 do not advance the argument in support of the power of review suo motu. The judgment in Sankaran, 1982 KLT 237 has no application to this case because the error sought to be corrected by the trial Court is not a procedural error. It relates to the correctness of its earlier finding of fact and not to the mechanism or mode by which it was arrived at (Sardar Begum, (AIR 1976 SC 1695) : (1976) 2 SCWR 404 , Grindlays Bank, : (AIR 1981 SC 606) : (1981) 1 SCWR 236and Newabganj Sugar Mills Co. v. Union of India, AIR 1976 SC 1152) do not lay down that a Civil Court possesses the power to review its orders suo motu irrespective of whether the orders suffer from inadvertent error, or procedural error. 18. The Code of Civil Procedure no doubt creates and confers on the Court the power of review. But, such power has to be exercised on (a) an application by a litigant and (b) if the circumstances specified in Rule 1 of Order 47 exist. The power of review exercisable on an application by a litigant and in specified circumstances is not a gene ..... X X X X Extracts X X X X X X X X Extracts X X X X
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