Karnataka High Court

Shri.M.A.Khadar vs Late Gousuddin And Ors on 4 February, 2022

Bench: S.R.Krishna Kumar, K S Hemalekha

                                1



            IN THE HIGH COURT OF KARNATAKA
                   KALABURAGI BENCH

       DATED THIS THE 4TH DAY OF FEBRUARY 2022

                           PRESENT

     THE HON'BLE MR.JUSTICE S.R.KRISHNA KUMAR
                               AND
       THE HON'BLE MRS.JUSTICE K.S.HEMALEKHA

           REVIEW PETITION NO.200025/2019
                         IN
         WRIT APPEAL NO.200110/2015 (KLR-REG)
BETWEEN:

Shri. M.A. Khadar
S/o Shaikh Mahatab,
Aged about 79 years,
Occ: Ex-serviceman/Agriculturist,
R/o Ghodawadi,
Tq. Humnabad, Dist. Bidar.
                                                ... Review Petitioner

(By Sri. S.S. Mamadapur, Advocate)
AND:
Late Gousuddin S/o. Hydersa,
Since deceased by his LRs.

1.     Shri. Abdul Raheman S/o Gousuddin,

2.     Shri. Shafiuddin S/o. Gousuddin,
       Both are major in age and businessmen,
       R/o Ghodwadi,
       Tq: Humnabad, Dist: Bidar.
                                2



3.    Late Abdul Razak S/o Gousuddin,
      Since deceased by his LRs.
3A)   Smt. Shamshunbee W/o Abdul Razak,
      Aged about 64 years, Occ: Household work,

3B)   Shri. Jawed S/o late Abdul Razak,
      Aged about 42 years, Occ: Business,

3C)   Shri. Saleem S/o late Abdul Razak,
      Aged about 36 years, Occ: Business,

3D)   Shri. Hyder S/o late Abdul Razak,
      Aged about 30 years, Occ: Business,

3E)   Smt. Afifa D/o late Abdul Razak,
      Aged about 40 years, Occ: Business,

3F)   Smt. Abida Begum D/o late Abdul Razak,
      Aged about 38 years, Occ: Household work,

3G)   Smt. Bibi D/o. late Abdul Razak,
      Aged about 34 years, Occ: Household work,

3H)   Smt. Ayesha D/o late Abdul Razak,
      Aged about 32 years, Occ: Business,

3I)   Smt. Heena D/o late Abdul Razak,
      Aged about 28 years, Occ: Business,

3J)   Smt. RukhAsar D/o late Abdul Razak,
      Aged about 26 years, Occ: Household work,

      Respdt. 3A to 3J are R/o. Opp: Nice Hotel,
      Vattey Pally, Hyderabad, Telangana State.

4.    Shri. Abdul Gaffan S/o Gousuddin,
      Age: Major, Occ: Business,

5.    Shri. Abdul Sattar S/o Gousuddin,
      Age: Major, Occ: Business,
                                 3



      Resps. 4 & 5 are R/o Ghodawadi,
      Tq. Humnabad, Dist: Bidar.

6.    The Tahasildar, Humnabad,
      Tq: Humnabad, Dist: Bidar.

7.    The Assistant Commissioner,
      Basavakalyan, Dist. Bidar.
                                                  ... Respondents

                                      ***
        This review petition is filed under Order XLVII Rule 1 R/w
Section 114 of the Code of Civil Procedure, praying to grant this
petition for review of the order dated 09.01.2019 passed in Writ
Appeal No.200110/2015 and pass appropriate orders thereon.

      This petition coming on for            orders    this   day,
K.S. Hemalekha J., made the following:

                            ORDER

Though the matter is listed for orders, with the consent

of learned counsel for the petitioner, it is taken up for final

disposal.

2. The review petitioner seeks to challenge the

impugned order dated 09.01.2019 passed by this Court in

Writ Appeal No.200110/2015 (KLR-REG), whereby the appeal

filed by the petitioner came to be dismissed with liberty to

consider the application by the authority for the grant of land to

the petitioner, if any fresh application is filed by the petitioner

in view of the fact that the petitioner is an Ex-serviceman.

3. Heard Sri. S.S. Mamadapur, learned counsel for

the petitioner and perused the material on record including the

impugned order.

4. For the sake of convenience, the parties herein

are referred as per their ranking in the writ petition.

5. The petitioner filed the aforesaid writ appeal

Under Section 4 of the Karnataka High Court Act, 1961,

seeking to set aside the order dated 10.03.2015 dismissing

the writ petition No.12047/2007 filed by the petitioner.

6. The dispute is in respect of Survey No.24

measuring 4 acres 5 guntas situated at Ghodawadi village,

Tq. Humanabad which is "Gayarana Sarkari" land as per the

revenue records. The facts appear that one Gousuddin filed

an application for regularization of the unauthorized cultivation

of the petition land. Initially, the Tahasildar granted the land in

favour of said Gousuddin. Subsequently, on an enquiry finding

that the said Gousuddin was not in possession of the land and

never cultivated the land, the authority had cancelled the grant

which was granted by way of saguvali chit in favour of said

Gousuddin. This being so, simultaneously an application

rather the representation was filed by the petitioner before the

Excellency Governor of Karnataka which was forwarded to the

Deputy Commissioner, wherein the applicant sought for

allotment of petition land on the ground that he is an

Ex-serviceman. On the very day, when the grant in favour of

Gousuddin was cancelled, the authority recommended to

grant the land in favour of the petitioner.

7. Aggrieved by the order of cancellation, the said

Gousuddin filed an appeal before the Assistant Commissioner

and for non-granting of land has also filed another appeal and

both the appeals were taken up together by the Deputy

Commissioner, Bidar and the appeals were dismissed.

Aggrieved by the order of dismissal, the said Gousudddin filed

an appeal before the Karnataka Appellate Tribunal. The

Appellate Tribunal allowed the appeal, cancelled the grant and

set aside the order of dismissal in the appeal and remanded

the matter to the Tahasildar for fresh enquiry. Both the writ

petition and the writ appeal filed by the petitioner assailing the

order of the KAT came to be dismissed.

8. On remand, the Appellate Tribunal adjudicated

the rival claim of said Gousuddin and the petitioner and

ordered for restoration of grant in favour of the said

Gousuddin. Aggrieved by the order of grant in favour of said

Gousuddin, the petitioner preferred an appeal before the

Assistant Commissioner and the Assistant Commissioner has

set aside the said order. Aggrieved by the same, the said

Gousuddin preferred a revision petition before the Karnataka

Appellate Tribunal. The Appellate Tribunal has allowed the

revision petition and set aside the order of the Assistant

Commissioner. It is this order, which the petitioner had

challenged in Writ Petition No.3833/2003 and this Court,

allowed the petition and remanded the matter to the Appellate

Tribunal for reconsideration. The Appellate Tribunal has

allowed the petition of the LRs of Gousuddin. Aggrieved by

the order of the Appellate Tribunal dated 02.07.2007, Writ

Petition No.12047/2007 was preferred by the petitioner. The

learned Single Judge, on reconsideration was pleased to

dismiss the writ petition. The writ appeal filed before this Court

in W.A.No.200110/2015 was considered and this Court, by its

order dated 09.01.2019 by a well considered order, dismiss

the writ appeal filed by the petitioner. However, granted liberty

to the petitioner to file fresh application for grant of land with a

direction to the authority that if such an application is filed by

the petitioner, the application to be considered by the authority

keeping in mind the fact that the petitioner is an

Ex-serviceman and preference should be given to the

application as provided under the Karnataka Land Grant Rule.

With these observations, the writ appeal was dismissed.

9. The petitioner is assailing the order passed in the

aforesaid writ appeal by filing review petition under Order

XLVII Rule 1 of CPC.

10. It is submitted by the learned counsel for the

review petitioner that against the order passed in the writ

appeal, the review petitioner had preferred SLP

No.19586/2019 and the same was dismissed without any

reason and it was a dismissal simplicitor and the review

petition to review the order passed in writ appeal is

maintainable. However, we are unable to pass any order

regarding the maintainability of the review petition, as the fact

whether SLP No.19586/2019 with effect of dismissal at the

stage of special leave by non-speaking / speaking order and

by dismissal by non-speaking order after the grant of special

leave is not forth coming from the record.

11. In view of the said circumstances, the petition is

heard on merits. The present review petition is filed under

Order XLVII Rule 1 of CPC, contending that there is an

apparent error. Order XLVII Rule 1 of CPC contemplates 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. 1[Explanation.--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.]

12. The Hon'ble Apex Court in Smt. Meera Bhanja

V/s Smt. Nirmala Kumari Choudhury reported in AIR 1995

SC 455 at para 8, held as under:

8. It is well settled that the review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47, Rule 1, C.P.C. In connection with the limitation of the powers of the Court under Order 47, Rule 1, while dealing with similar jurisdiction available to the High Court while seeking to review the orders under Article 226 of the Constitution of India, this Court, in the case of Aribam Tuleshwar Sharma v. Aribam Pishak Sharma, AIR 1979 SC 1047, speaking through Chinnappa Reddy, J., has made the following pertinent observations: (para 3):

"It is true there is nothing in Article 226 of the Constitution to preclude the High Court from exercising the power of review which inheres in every Court of Plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and

important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a Court of Appeal. A power of review is not to be confused with appellate power which may enable an Appellate Court to correct all manner of errors committed by the subordinate court."

Now it is also to be kept in view that in the impugned judgment, the Division Bench of the High Court has clearly observed that they were entertaining the review petition only on the ground of error apparent on the face of the record and not on any other ground. So far as that aspect is concerned, it has to be kept in view that an error apparent on the face of record must be such an error which must strike one on mere looking at the record and would not require any long- drawn process of reasoning on points where there may conceivably be two opinions. We may usefully refer to the observations of this Court in the case of Satyanarayan Laxminarayan Hegde v. Mallikarjun Bhavanappa Tirumale, AIR 1960 SC 137, wherein, K.C. Das Gupta, J., speaking for the Court has made

the following observations in connection with an error apparent on the face of the record:

"An error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Where an alleged error is far from self-evident and if it can be established, it has to be established, by lengthy and complicated arguments, such an error cannot be cured by a writ of certiorari according to the rule governing the powers of the superior court to issue such a writ."

13. On plain reading of Order XLVII Rule 1 of CPC

and in view of the dictum of the Hon'ble Apex Court in the

case of Meera Bhanja supra, the power to review is available

only when there is an error apparent on the face of the record

and not then erroneous decision. The power of review under

Order XLVII Rule 1 of CPC may be opened inter alia, only if

there is a mistake or an error apparent on the face of the

record and a review application cannot be held to be an

appeal in disguise.

14. This Court, considering and reassessing the

evidence has rightly dismissed the petition with liberty to the

petitioner to file fresh application and directing the authorities