Sri B Pavan Kumar vs Shrimati B Shamalanath
2022 Latest Caselaw 1584 Kant

                             1


       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 02ND DAY OF FEBRUARY, 2022

                          PRESENT

            THE HON'BLE MR. JUSTICE G.NARENDAR

                            AND

     THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR

                REVIEW PETITION NO.176/2021
                             IN
                     R.F.A.NO.1119/2020

BETWEEN:

1.     SRI B PAVAN KUMAR
       SON OF LATE B S BADRINATH
       AGED ABOUT 43 YEARS
       RESIDING AT NO.742,
       BLOCK, NAGARBHAVI 2ND STAGE,
       BANGALORE-560072.

2.     SHRIMATI SARITHA B
       WIFE OF SRI SOMASHEKAR
       DAUGHTER OF LATE B S BADRINATH
       AGED ABOUT 34 YEARS
       RESIDING AT NO.34,
       KALYAN NAGAR MAIN ROAD,
       NAGARABHAVI, BANGALORE-72.
                                              ... PETITIONERS
(BY SRI K.T.SESHAGIRI, ADV.-ABSENT.)

AND:

1.     SHRIMATI B SHAMALANATH
       WIFE OF LATE B S BADRINATH
       AGE ABOUT 66 YEARS
       RESIDING AT NO.969, 2ND CROSS,
       AECS LAYOUT KUDLU,
       BANGALORE-68.
                             2


2.   TUMAKURU DON BOSCO SOCIETY
     REPRESENTED BY FATHER TONY CHIRAKAL,
     AGED ABOUT 45 YEARS
     PRESIDENT OF DON BOSCO SOCIETY
     RESIDENT OF COUNTRY RYAN PALIA,
     DON BOSCO ROAD
     MARALENAHALLI VILLAGE
     TUMAKURU-572106

3.   SMT GOWRI PRAKASH
     WIFE OF LATE S B SHIVA PRAKASH
     AGED ABOUT 51 YEARS
     RESIDING AT SY NO.43/4
     KANTEERAYANA PALYA,
     BESIDE DON BOSCO SCHOOL
     MARALENAHALLI VILLAGE,
     TUMAKURU-572106

4.   MR NIKHIL PRAKASH
     SON OF LATE S B SHIVAPRAKASH
     AGE ABOUT 26 YEARS
     RESIDING AT SY NO.43/4
     KANTEERAYANA PALYA
     BESIDE DON BOSCO SCHOOL
     MARALENAHALLI VILLAGE
     TUMAKURU-572106
                                            ... RESPONDENTS
(BY SRI MAYUR GADIDAM D.S, ADV. FOR C/R.)

    THIS REVIEW PETITION IS FILED UNDER ORDER 47 RULE
1 OF CPC, PRAYING TO REVIEW AND RESTORE THE ORDER
DATED:02/11/2020 PASSED IN RFA NO.1119/2020.

     THIS REVIEW PETITION COMING ON FOR HEARING ON
INTERLOCUTORY APPLICATION THIS DAY, SHIVASHANKAR
AMARANNAVAR J, MADE THE FOLLOWING:

                         ORDER

Learned counsel for the petitioners is not present. On

previous two dates also, there was no representation on

petitioners' side.

2. The petitioners have filed this petition seeking

review of the order dated 02.11.2020 passed in RFA

No.1119/2020. The review is sought on the following

grounds:-

"7. Petitioners respectfully submit that since the learned trial court rejected the plaint at the threshold, they were prevented from leading evidence and prove the fact that the land in question which was in the name of Smt. Rajalakshmamma was in fact purchased out of the money given by the grandfather of the petitioners namely Sri B Somasundaram. If the petitioners are able to establish that the property was in fact purchased out of the money invested by their Grandfather, they become entitled to the share in the ancestral property. In this view the matter, this Hon'ble Court may be pleased to review the order dated 2nd November 2020 in RFA No. 1119/2020.

8. Since the trial court rejected plaint at the threshold without affording an opportunity to the petitioners, they are deprived of an opportunity to prove their case before the trial court. Since this honourable court confirmed the order of the trial court, an opportunity may be provided to the petitioners by reviewing the order and remand the matter to the learned trial court, in the interest of justice.

9. The learned trial judge rejected the plaint solely on the ground that there is no cause of action. This finding is patently erroneous. However, since this honourable court did not

consider the legal grounds urged by the petitioners, the order may be reviewed.

10. The finding recorded by the learned trial court that the suit was barred under section 15 of the Hindu Succession Act suffers from errors of both law and facts. Therefore, this honourable Court may be pleased to set aside the findings recorded by the learned trial court. In this view of the matter this review petition maybe considered.

11. IA No. 2 under order VII Rule 11 (a) and

(b) was filed only by respondents No. 3 and 4. However the learned trial judge rejected the plaint in its entirety although the application was filed only in relation to schedule B property only. Since this honourable court has not taken into consideration this aspect of the matter, the order under review is liable to reviewed.

12. The issue in controversy involved in the original suit was in relation to partition and therefore an elaborate trial was required before the honourable trial court. The rejection of the plaint was therefore erroneous and taking into consideration this aspect, this honourable Court ought to have set aside the order passed by the trial court. Therefore, there is an error apparent on the fact of the order under review and accordingly the same may be reviewed."

3. The grounds urged for review have already been

considered in the judgment at paragraph Nos.23 to 29. On

perusal of the judgment, there is no error apparent on the

record. The petitioners have not made out any grounds for

reviewing the judgment. Hence, the Review Petition is

dismissed.

4. The counsel for the petitioners is at liberty to

seek recall of this order.

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JUDGE

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JUDGE

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