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CASE NO.: Appeal (civil)  78-79 of 2002

PETITIONER: S. Bagirathi Ammal

RESPONDENT: Palani Roman Catholic Mission

DATE OF JUDGMENT: 06/12/2007

BENCH: B.N. Agrawal & P.P. Naolekar & P. Sathasivam

JUDGMENT: JUDGMENT

CIVIL APPEAL NOS. 78-79 OF 2002

P. Sathasivam, J.

1)      Challenging the order dated 20.7.2001 passed by the  High Court of Judicature at Madras in Review Application Nos.  8 & 9 of 1997 filed by the respondent herein whereby a  learned single Judge of the High Court allowed the same, the  appellant has filed these appeals.   2)      The respondent herein was the owner of the suit vacant  land in question.  In 1959, the suit land was leased out for five  years by the respondent to the appellant herein.  On 3.3.1965,  the tenancy was renewed for another period of three years.      After the expiry of three years, the respondent wanted the  appellant to vacate the premises.  As the appellant did not  vacate, the respondent issued a notice on 28.8.1968  demanding possession for which he sent a reply with false and  frivolous allegations.  In the year 1969, the respondent filed  O.S.No.218 of 1969 for recovery of land.  The appellant also  filed O.S.No. 75 of 1970 as a counter blast for getting a fresh  lease document from the respondent.  On 14.12.1970, O.S.No.  218 of 1969 was compromised and O.S.No. 75 of 1970 was  dismissed as not pressed.  The appellant did not vacate the  suit property in spite of repeated demands by the respondent,  therefore, the respondent filed a fresh Suit i.e. O.S.No. 76 of  1977 for delivery of possession. On 27.7.1978, O.S. No.76 of  1977 was decreed in favour of the respondent while O.P. No. 4  of 1977 filed by the appellant for purchase of the land by her  was erroneously dismissed and an order of eviction was  passed against the appellant by the Court of District Munsif,  Palani.  The Madras City Tenants Protection Act, 1921 gives  the option of purchasing the site from the landlord by the  tenant in case a suit for eviction is filed by the landlord where  the tenant is the owner of the superstructure standing thereon  and if the tenant is not interested in buying the site then the  landlord can buy the superstructure or ask the tenant to  remove the superstructure and seek delivery of possession.   The said Act was extended to the town of Palani in Tamil Nadu  only in 1975, therefore, the option of buying the site from the  respondent became available to the appellant as the owner of  the superstructure.  The appellant filed an application O.P.  No. 4 of 1977 in Suit No. 76 of 1977 for purchase of land by  him which was dismissed.  Against the said order, the  appellant filed A.S.No. 121 of 1978 and another A.A.O. No. 94  of 1978 against the order in O.P. No. 4 of 1977.  The appellate  Court allowed the appeals of the appellant directing the  respondent  to sell the land to the appellant for an amount of

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Rs.65,092.50.  Aggrieved by the said order, the respondent  filed S.A.No. 2149 of 1981 and C.R.P. No. 2204 of 1980  against the order allowing the petition of the appellant for  purchase of the suit property.  The second appeal and the  revision petition filed by the respondent were dismissed by a  learned single Judge of the High Court of Madras.  Against  that order, the respondent filed S.L.P.(c) Nos. 5029 and 5030  of 1984 before this Court which were dismissed.  After the stay  order operating from 1980 to 1985 continuously ceased to  operate, the appellant deposited the full site value.  With the  dismissal of the S.L.Ps by this Court and the deposit of the full  site value by the appellant, the same became final.  In the year  1985, the appellant filed an execution petition being E.P. No.  257 of 1985 for execution of the sale deed of the land in his  favour by the respondent.  On the other hand, the respondent  filed an execution petition being E.P. No. 79 of 1983 for  executing the compromise decree in O.S.No.218 of 1969.  Both  the petitions were taken up together for disposal.  The  Executing Court allowed E.P. No. 257 of 1985 filed by the  appellant for execution of the sale deed and dismissed E.P. No.  79 of 1983 filed by the respondent.  Dissatisfied therewith, the  respondent filed C.R.P. No. 1445 of 1988 against the order in  E.P. No. 79 of 1983 and A.A.O. No. 767 of 1989 against the  order in E.P. No. 257 of 1985.  Both the petitions were heard  together and the same were dismissed by the High Court  upholding the directions of the Execution Court to execute the  sale deed in favour of the appellant. On 28.10.1996, the sale  deed in favour of the appellant was executed by the Court of  District Munsif, Palani.  The sale deed was registered as  Document No. 1908 of 1996 in the Registrar’s office. Against  the order in C.R.P. No. 1445 of 1988 and A.A. O. No. 767 of  1989, the respondent filed S.L.P.(C) Nos. 22925 and 22926 of  1996 before this Court which were dismissed.  After every  thing became final with the execution and registration of the  sale deed in favour of the appellant and the dismissal of the  S.L.Ps by this Court, the respondent filed review applications  being Review Application Nos. 8 & 9 of 1997 in the High Court  against the order dated 26.7.1997 passed by the High Court  on the same grounds as were in S.L.Ps. and the same were  dismissed on the ground that they were not maintainable after  the dismissal of the S.L.Ps by this Court.  On 7.2.1997, the  appellant filed an application E.A.No. 820 of 1996 for return of  the duly registered sale deed and the same was allowed.  The  respondent was not a party to the said E.A. and he did not  make any effort to implead himself.  Against the said order,  the Registrar who was a party filed C.R.P. No. 1819 of 1997.   In the said C.R.P., the respondent filed an application being  C.M.P. No. 3005 of 1998 to implead himself which was  dismissed by the High Court.  The C.R.P. filed by the Registrar  was dismissed and the Registrar returned the sale deed to the  executing Court.     Against the order dated 16.12.1998 in the  R.A.Nos. 8 & 9 of 1997, the respondent filed S.L.P.(c) Nos.  6097 & 6098 of 1999 before this Court.  On 2.2.2001, this  Court passed an order of remand of the review applications in  S.L.P.(c) Nos. 6097-6098 of 1999 because of the  decision of  this Court in Kunhyammed vs. State of Kerala, (2000) 6  SCC 359 holding that the summary dismissal of a special  leave petition does not bar a review petition permissible under  the law.  The respondent filed an application in the review  applications for producing additional documents which was  allowed by a learned single Judge of the High Court.  As a  result of the order of the High Court, the proceedings for  return of the registered sale deed to the appellant was  dismissed by the executing Court.  Aggrieved by the said  order, these appeals have been preferred by the appellant.

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3)      Heard Mr. M.N. Krishnamani, learned senior counsel  appearing for the appellant and Mr. P.P. Rao, learned senior  counsel appearing for the respondent. 4)      The only point for consideration in these appeals is  whether the High Court is justified in allowing Review  Application Nos. 8 & 9 of 1997 under Order XLVII Rule 1  C.P.C. 5)      Since we have already narrated the case of both the  parties in the paragraphs supra, there is no need to traverse  the same once again.  Before considering the rival claims made  by both the parties, it is useful to refer the provisions under  Order XLVII Rule 1 C.P.C. relating to Review which read as  under: "1.  Application for review of judgment:- (1) Any person  considering himself aggrieved-

(a)     by a decree or order from which an appeal is allowed,  but from which no appeal has been preferred,

(b)     by a decree or order from which no appeal is allowed,  or

(c)     by a decision on a reference from a Court of  Small  Causes,

and who, from the discovery of new and important matter or  evidence which, after the exercise of due diligence was not  within his knowledge or could not be produced by him at the  time when the decree was passed or order made, or on  account of some mistake or error apparent on the face of the  record, or for any other sufficient reason, desires to obtain a  review of the decree passed or order made against him, may  apply for a review of judgment to the Court which passed the  decree or made the order.

(2)     A party who is not appealing from a decree or order  may apply for a review of judgment notwithstanding the  pendency of an appeal by some other party except where the  ground of such appeal is common to the applicant and the  appellant, or when, being respondent, he can present to the  Appellate Court the case on which he applies for the review.

[Explanation \026 The fact that the decision on a question of law  on which the judgment of the Court is based has been  reversed or modified by the subsequent decision of a  superior Court in any other case, shall not be a ground for  the review of such judgment.)"  

A reading of the above provision makes it clear that Review is  permissible (a) from the discovery of new and important matter  or evidence which, after the exercise of due diligence could not  be produced by the party at the time when the decree was  passed; (b) on account of some mistake; (c) where error is  apparent on the face of the record or is a palpable wrong; (d)  any other sufficient reason.  If any of the conditions satisfy,  the party may apply for a review of the judgment or order of  the Court which passed the decree or order.   The provision  also makes it clear that an application for Review would be  maintainable not only upon discovery of a new and important  piece of evidence or when there exists an error apparent on the  face of the record but also if the same is necessitated on  account of some mistake or for any other sufficient reason.  An  error contemplated under the Rule must be such which is  apparent on the face of the record and not an error which has  to be fished out and searched.  In other words, it must be an

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error of inadvertence.  It should be something more than a  mere error and it must be one which must be manifest on the  face of the record.  When does an error cease to be mere error  and becomes an error apparent on the face of the record  depends upon the materials placed before the Court.  If the  error is so apparent that without further investigation or  enquiry, only one conclusion can be drawn in favour of the  appellant, in such circumstances, the review will lie.  Under  the guise of review, the parties are not entitled re-hearing of  the same issue but the issue can be decided just by a perusal  of the records and if it is manifest can be set at right by  reviewing the order.  With this background, let us analyze the  impugned judgment of the High Court and find out whether it  satisfy any of the tests formulated above.  6)      It is the claim of the respondent herein that it is a Roman  Catholic Mission and is a religious institution within the  meaning of Amended provisions of The Tamil Nadu City  Tenants Protection Act, 1921 (hereinafter referred to as "the  Principal Act).  The "Roman Catholic Mission" (hereinafter  "Mission" in short), in support of the above claim, filed several  documents, namely, Ex. A-1 to A-15 and also let in evidence of  PW-1 and PW-2 who were conversant with their activities.  The  High Court, on appreciation of those materials, arrived at a  factual conclusion that the same came under the Roman  Catholic Diocese which has as its object and maintenance of  churches and hence it is a "religious institution".  Though it  was contended by the learned senior counsel appearing for the  appellant herein that only certificate of registration was  produced by the Mission to substantiate its case that it is a  religious institution, in view of the categorical factual finding  by the High Court based on acceptable oral and documentary  evidence, we reject the said objection.  It is relevant to point  out that when the above appeals were heard on 19.01.2006 at  length, this Court after finding that it would be just and  expedient to call for a finding from the trial Court as to  whether the Palani Roman Catholic Mission is a ’religious  institution’ or ’institution of religious charity’ belonging to  Hindu, Muslim, Christian or other religion within the meaning  of Section 1(f) of the Madras City Tenants’ Protection Act,  1921, as amended by Act 2 of 1996, directed the trial Court to  record a finding on the said question after giving opportunity  of adducing oral and documentary evidence to the parties and  thereupon remit its finding to this Court within a period of six  months from the date of receipt of copy of the said order.   Pursuant to the said direction, this Court received a report  dated 09.08.1996 from the trial Court i.e. District Munsiff,  Palani and the same was handed over to learned counsel  appearing on behalf of the parties.  They were given an  opportunity to peruse the report and submit their objection, if  any.  The report shows that the learned District Munsiff, after  affording opportunity to both parties and after recording  evidence and relying on documents placed by both parties,  arrived at the following conclusion:- "\005. \005. Thus, on cumulative appraisal of the evidence on  record in the context of the undisputed averments of the  proof-affidavit of the P.W.1 and P.W.2 in particularly P.W.2  with regard to the factum of conducting the religious  ceremonies, prayers and masses in the plaintiff-Mission, this  Court feels that an inescapable and irresistible conclusion  can be drawn that the plaintiff-mission is a place of worship  for the people who have faith in the Christianity in  particularly believers attached with the Roman Catholic  denomination.  Therefore, in view of the finding as above,  this Court hold that the Palani Roman Catholic Mission is a  religious institution in the context of the sec.(1)(f) of the

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Madras City Tenants Protection Act, 1921 as amended by  Act 2 of 1996.  

In the result, on the basis of the evidence emerged on  record, I hold that the Palani Roman Catholic Mission is a  religious institution within the meaning of sec. (1)(f) of the  Madras City Tenants Protection Act, 1921 as amended by  the Act 2 of 1996."

In view of the conclusion of the High Court as well as the  report of the trial Court holding that Palani Roman Catholic  Mission-respondent herein is a religious institution within the  meaning of Section (1) (f) of the principal Act as amended by  Madras City Tenants Protection Act as amended by Act 2 of  1996.  We agree with the said conclusion.     

7)      Now we will consider the provisions of the Principal Act  as well the provisions of the Amendment Act i.e., the Madras  City Tenants’ Protection (Amendment) Act, 1994 (Tamil Nadu  Act 2 of 1996) [hereinafter referred to as "the amended Act"].   The Statement of Objects and Reasons of the Act shows that in  many parts of the City of Madras (and other Municipal towns)  dwelling houses and other buildings have from time to time  been erected by tenants on lands belonging to others, in the  expectation that subject to payment of a fair ground rent they  would be left in their undisturbed possession, in spite of any  agreement about duration of the tenancy and the terms on  which the buildings were to be leased.  Attempts made or  steps taken to evict a large number of such tenants had shown  that such expectations are likely to be defeated.  The tenants,  if they were evicted, can remove the superstructure which can  only be done by pulling down the building, or claim  compensation for the value of the building put up by them and  the value of any tree planted by them.  As a result of such  wholesale destruction, congested parts of the city (municipal  towns) would become more congested to the serious detriment  of public health.  In the circumstances, it was though just and  reasonable that the landlords when they evict the tenants  should pay for and take the buildings.  There may however be  cases where the landlord is unwilling to eject a tenant, if he  can get a fair rent for the land.  The Act provides for the  payment of compensation to the tenant in case of ejectment  for the value of any buildings which may have been erected by  him, or his predecessor-in-interest.  It also provides for the  settlement of fair rent at the instance of the landlord, or  tenant.  Provision is also made to enable the tenant to  purchase the land in his occupation, subject to certain  conditions.

8)       Section 9 gives the right to the tenant, who has put up a  superstructure to purchase such part or extent of the land, be  reasonably required for his enjoyment.  Since we are  concerned about the Amended Act, there is no need to go into  other provisions.  The Amended Act received the assent of the  President on 5.1.1996 and published in the Tamil Nadu  Government Gazette Extraordinary Part IV Section 2 dated  11.1.1996.  By Amendment Act, the Tamil Nadu legislature  has amended Section 1 of the principal Act and added certain  provisions in sub-section 3.  The amended provisions are as  follows: "Amendment of Section 1 -  In Section 1 of the Madras City  Tenants’ Protection Act, 1921 (Tamil Nadu Act III of 1922),  (hereinafter referred to as the principal Act), in sub-section  (3), in the first proviso; after clause (e), the following clause  shall be added, namely:-

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(f) by any religious institution or religious charity belonging  to Hindu, Muslim, Christian or other religion.

Explanation:- for the purpose of this clause"- (A)     "religious institution" means any- (i)     temple (ii)    math; (iii)   mosque (iv)    church; or (v)     other place by whatever name known

which is dedicated to, or for the benefit of, or used as  of right by, any community or section thereof as a  place of public religious worship;

(B)     "religious charity" means a public charity associated  with a religious festival or observance of religious  character (including a wakf associated with a religious  festival or observance of religious character), whether it  be connected with any religious institution or not."

3.      Certain pending proceedings to abate -  Every  proceeding instituted by a tenant in respect of  any land owned by any religious charity  belonging to Hindu, Muslim, Christian or other  religion and pending before any Court or other  authority or officer on the date of the publication  of this Act in the Tamil Nadu Government  Gazette, shall in so far as the proceeding relates  to any matter falling within the scope of the  principal Act, as amended by this Act, in respect  of such land, abate and all rights and privileges  which may have accrued to that tenant in  respect of any such land and subsisting  immediately before the said date shall in so far  as such rights and privileges relate to any matter  falling within the scope of the principal Act, as  amended by this Act, cease and determine and  shall not be enforceable:

Provided that nothing contained in this section  shall be deemed to invalidate any suit or  proceeding in which a decree or order passed has  been executed or satisfied in full before the said  date."

We have already mentioned that the amendment was  published in the Gazette on 11.1.1996 and as per sub-section  (2) of Section 1, it came into force on the date of publication.   In other words, from 11.1.1996 benefits conferred on the  tenants under Section 9 of the Principal Act have been deleted  in respect of the lands belonging to religious institution or  religious charity of Hindu, Muslim, Christian or other religion.   We have already referred to the finding of the High Court  holding that the respondent herein is a Roman Catholic  Mission which is a "religious institution" within the meaning of  the amended provision.  The Amended Act has given the  respondent herein a valuable right of exemption from the  provisions of the Principal Act.

9)      It is relevant to mention here that the Amendment Act  No. 2 of 1996 has been upheld by the Full Bench of the High  Court in N. Sreedharan Nair vs. State of Tamil Nadu,  (2000) 3 M.L.J. 616 and the said decision of the Full Bench

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has also been approved by this Court by dismissing C.A.Nos.  4531 of 2003 etc.etc. titled Mylapore Club vs. State of  T.N. & Anr. 2005 (5) CTC 494, filed against the same.   

10)     Both before the High Court as well as before this Court, it  was contended that in view of the orders/decisions of various  Courts including this Court, the issue cannot be agitated once  again by way of review application; hence, the impugned order  of the High Court is to be set aside.  Mr. P.P. Rao, learned  senior counsel appearing for the respondent, has brought to  our notice that in the earlier proceedings, this Court in Civil  Appeal Nos. 1055-1056 of 2001 directed the High Court to  consider the review applications afresh.  In other words, by  virtue of the said order, the High Court was directed to decide  the review applications on merits.  In such circumstances, the  High Court was fully justified in analyzing the issue as  directed by this Court and its ultimate decision that Roman  Catholic Mission is a "religious institution" cannot be faulted  with since it relied on acceptable materials in the form of oral  and documentary evidence (vide Ex. A-1 to A-15 and evidence  of PW-1, PW-2).  It was demonstrated that these religious and  charitable institutions were not only deprived of their  legitimate income but also their valuable properties.  It was  also their claim that because of the provision, namely, Section  9 of the Act, the tenants flourished and the landlord-  institutions were crippled.  It was further pointed out that in  those circumstances Act No.2 of 1996 was enacted in order to  protect those religious institutions.  We have already  concluded that pleadings of the respondent herein-review  petitioners and various orders/judgments show that it is a  "religious institution".  As rightly observed by the High Court,  the claim that the "Mission" is a "religious institution" is  apparent from the materials without any further investigation.   In such circumstances, as per Section 1(f) of the amended Act,  all proceedings instituted by a tenant would abate.  The  amended Act came into force from 11.1.1996 and on the  question whether on the date of coming into force of the  amended Act, giving certain benefits to the religious  institutions and taking away the right of the tenant under  Section 9, the High Court concluded as under: "\005The Transfer C.M.A. which was a continuation of the  application under Section 9 of the Tamil Nadu City Tenants  Protection Act filed by the respondent who is the tenant was  still pending.  The proceedings had not attained finality.   Therefore, they terminated and they became unenforceable.   On the date when the first appeal and the C.M.A. were  disposed of, tenancy granted by religious institutions were  still governed by the provisions of the Act.  Now, by the  introduction of Act 2 of 1996, they cease to apply, ergo, all  proceedings instituted by the tenant shall abate.  All rights  and privileges that may have accrued to her cease.  They  come to an end and they shall not be enforceable.  The  jurisdiction of the Court to decide the tenants claim ceased."  

It is clear that on the date when the amended Act came into  force, the application under Section 9 of the principal Act filed  by the tenant-appellant herein was still pending.  Though Mr.  M.N. Krishnamani, learned senior counsel appearing for the  appellant, submitted that all formalities were completed before  coming into force of the amended Act, as pointed out earlier,   pursuant to the order of the High Court, the sale deed was  executed only on 28.10.1996 whereas the amended Act (Act  No.2 of 1996) came into force on 11.1.1996 much earlier to the  execution of the sale deed, hence, the contention of learned  senior counsel for the appellant is not acceptable and we are

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in agreement with the conclusion arrived at by the High Court.   As rightly concluded by the High Court, the decree in O.P. No.  4 of 1977 became a nullity on and from 11.1.1996, the  executing Court committed an error in executing the sale deed  after coming into force of amended Act.   Further as rightly  observed by the High Court, unless the sale deed is executed  either by the Mission or by the Court, the fruits of the decree  will not be realized by the tenants and the proceedings will  come to an end only upon execution of the sale deed.   Therefore, the tenant cannot be heard to say that the proviso  applies to him and that the proceedings are not invalidated.   The High Court is right in holding that the decree not having  been executed by means of  a sale deed, the proceedings are  deemed to be pending and, therefore, were determined with  the coming into force of the amendment Act.   

11)     Finally, Mr. M.N.Krishnamani placing reliance on the Full  Bench decision of the Madras High Court rendered in  CRP(NPD) 2758 of 1996 titled Arulmigu Kasi  Viswanathaswamy Devasthanam vs. Kasthuriammal  submitted that the moment tenant deposited the amount the  order is fully satisfied.  He further pointed out that as per the  said decision the moment the order under Section 9 (3) (a) is  passed, it shall be construed that the proceedings got  terminated and the suit stood dismissed as per Section 9 (3)  (b) of the Act.  We are unable to accept the said proposition.   The relevant provisions are as follows:- "9. (3) (a) On payment of the price fixed under clause (b)  of sub-section (1) the Court shall pass an order  directing the conveyance by the landlord to the tenant of  the extent of land for which the said price was fixed.   The Court shall by the same order direct the tenant to  put the landlord into possession of the remaining extent  of the land, if any, the stamp duty and registration fee  in respect of such conveyance shall be borne by the  tenant.  

(b) On the order referred to in clause (a) being made, the  suit or proceeding shall stand dismissed, and any  decree or order in ejectment that may have been passed  therein but which has not been executed shall be  vacated."     

It is clear that if the tenant complies with the order passed  under Section 9 (1) (b) and deposits the amount within the  time as fixed, the Court has to pass an order directing the  conveyance by the landlord to the tenant.  It is true that as per  Section 9 (3) (b) on passing an order under clause (a) the suit  or proceeding shall stand dismissed.  In the light of the  language used in clause (a) i.e. "conveyance" to be made by the  landlord to the tenant, till the proper document conveying title  to the tenant it is presumed that the proceeding is kept  pending.  To put it clear that unless the sale deed is executed  by the landlord in favour of the tenant or in the alternative by  the Court on behalf of the landlord the fruits of the decree can  not be realized.  The suit or proceeding will come to an end  immediately on execution of sale deed either by the landlord or  by the Court on behalf of the landlord.  In our case, as said  earlier, the sale deed was executed only on 28.10.1996,  however the amended Act 2/96 came into force on 11.01.1996  much earlier to the execution of sale deed.  The view expressed  in the Full Bench decision runs counter to the language used  in the statute and we are unable to accept the same.     

12)     From the materials, we are satisfied that the conclusion

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reached by the High Court holding that the review  petitioner/respondent herein is a "religious Mission"/  "institution" within the meaning of amended provision and  entitled to the benefits of amended Act.  Further if the same is  not applied to the Mission, it would result in miscarriage of  justice and it had been rightly rectified by the High Court by  the impugned judgment.  The benefit that has been bestowed  upon the religious institution by the Legislature cannot be  ignored lightly merely because the issue was decided by way of  review applications.  Inasmuch as at the relevant point of time,  the Amended Act 2 of 1996 was not enacted and not available  for consideration before the Court and also of the fact that the  proceeding instituted by the tenant/appellant herein was  pending and not reached finality on the date of coming into  force of the amended Act, we are satisfied that the High Court  is justified in granting the relief as provided under the  amended Act (Act No.2 of 1996) by allowing the review  applications.  As held earlier, if the judgment/order is vitiated  by an apparent error or it is a palpable wrong and if the error  is self evident, review is permissible and in this case the High  Court has rightly applied the said principles as provided under  Order 47 Rule 1 C.P.C.  In view of the same, we are unable to  accept the arguments of learned senior counsel appearing for  the appellant, on the other hand, we are in entire agreement  with the view expressed by the High Court. 13)     In the light of the above discussion and conclusion, the  appeals fail and are accordingly dismissed.  No costs.