Mr S John De Britto vs Sree Gundlu Muneshwara Swamy ...
2022 Latest Caselaw 8375 Kant

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      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 8TH DAY OF JUNE, 2022

                         BEFORE

          THE HON'BLE MR. JUSTICE H. P. SANDESH

             REVIEW PETITION NO.391/2021
                          IN
               R.F.A.NO.1646/2005 (RES)

BETWEEN

MR. S.JOHN DE BRITTO
SON OF STANISLAUS,
AGED ABOUT 55 YEARS,
M/S UNIVERSAL AUTO SERVICES,
NO.10, DHARMA RAM COLLEGE POST,
HOSUR ROAD, BENGALURU-560029.              .... PETITIONER

   (BY SRI S.SHAKER SHETTY, ADVOCATE [THROUGH V.C.])

AND

SREE GUNDLU MUNESHWARA
SWAMY TEMPLE TRUST (REGD.)
HOSUR ROAD,
BENGALURU-560029,
REPRESENTED BY ITS SECRETARY.             .... RESPONDENT

      (BY SRI M.S.NAGARAJA, ADVOCATE [THRUOGH V.C.])

     THIS REVIEW PETITION IS FILED UNDER ORDER 47 RULE
1 OF CPC, PRAYING TO REVIEW THE JUDGMENT DATED
12.11.2021 PASSED IN R.F.A.NO. 1646/2005.

     THIS PETITION COMING ON FOR ADMISSION ON THIS
DAY, THE COURT MADE THE FOLLOWING:
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                             ORDER

Heard the learned counsel for the review petitioner and

learned counsel for the respondent.

2. This review petition is filed under Order 47, Rule 1 of

CPC praying to review the judgment dated 12.11.2021 passed in

R.F.A.No.1646/2005.

3. Learned counsel for the review petitioner would

vehemently contend that this Court has committed an error in

not considering the grounds urged by the review petitioner

before this Court which is an error on the face of the record

which is a pure question of law which has to be considered at

any stage of the proceedings as per the law laid down by the

Apex Court. The impugned judgment without a finding of the

fact regarding the prima facie ownership of the property has

directed delivery of possession of immovable property which is

an error on analysis of fact and application of law.

4. It is also the contention of the learned counsel for

the review petitioner that this Court has committed an error in

considering the document at Ex.P1 and the impugned judgment

failed to recognize that the Secretary of the Trust had no

authority to file the suit and all the trustees ought to have joined

as parties to the proceedings and though a point has been

framed and considered as Point No.(i) with regard to Sections 47

and 48 of the Trust Act, proceeded in an erroneous direction.

5. The learned counsel would also vehemently contend

that, when there is no material with regard to the proof of

relationship as landlord and tenant between the parties,

erroneously directed to deliver possession, even though the

respondent has not proved that they are the owners of the

property. The counsel would also submit that there is no post of

Secretary in the trust and when the suit is filed by the Secretary,

the same has been recognized by this Court and the same is also

an error apparent on the part of this Court. The counsel would

further contend that this Court has committed an error in not

permitting the petitioner to produce the documents, particularly,

khatha and tax paid receipts standing in the name of the review

petitioner and so also the income tax returns and also committed

an error in not noticing that Ex.P4 purports to terminate the

alleged lease for violation of the express terms of the lease.

Therefore, it requires interference of this Court by exercising the

review jurisdiction, since there is an error apparent on the face

of records and the findings given by the this Court.

6. In support of his arguments, learned counsel for the

review petitioner brought to the notice of this Court the

judgment of the Apex Court in the case of BOARD OF

CONTROL FOR CRICKET, INDIA AND ANOTHER VS. NETAJI

CRICKET CLUB AND OTHERS reported in AIR 2005 SC 592

and brought to the notice of this Court paragraph Nos.88, 89, 90

and 93 with regard to the scope of review.

7. The counsel also brought to the notice of this Court

the judgment of the Apex Court in the case of M/S.

THUNGABHADRA INDUSTRIES LTD. VS. THE GOVERNMENT

OF ANDHRA PRADESH REPRESENTED BY THE DEPUTY

COMMISSIONER OF COMMERCIAL TAXES, ANANTAPUR

reported in AIR 1964 SC 1372 and brought to the notice of this

Court paragraph No.8.

8. The counsel also brought to the notice of this Court

the judgment of the Apex Court in the case of C. VENKATA

SWAMY VS. H.N. SHIVANNA (DEAD) BY LEGAL

REPRESENTATIVE AND ANOTHER reported in (2018) 1 SCC

604 and relied upon paragraph Nos.10 to 12 with regard to

entertaining the review petition.

The learned counsel for the review petitioner, relying upon

the judgments referred (supra) submits that, if there is an error

apparent on the face of records, the petitioner has to approach

the very same Court for reviewing the order and need not file an

appeal. Hence, it is a fit case to exercise the review jurisdiction.

9. Per contra, learned counsel for the respondent would

submit that the Secretary has filed the suit is not in dispute and

the same has not been challenged and nothing is contended

before the Trial Court with regard to the maintainability of the

suit. However, this Court has considered the said aspect in

detail, while considering the matter on merits and particularly,

framed the point for consideration in respect of Sections 47 and

48 of the Trust Act. The counsel also submits that, in the case

on hand, the Trust Act does not attract and the very trust

formed is only for charitable purpose and that too, it is a family

trust and not a public trust. Hence, the very contention of the

learned counsel for the review petitioner that the Trust Act is

applicable cannot be accepted. However, this Court has

considered the grounds urged by the learned counsel for the

review petitioner while considering the matter on merits. The

counsel also would submit that the respondent has relied upon

the document of Ex.P1 and the same has been considered and

the identification of the property is also not disputed and now, a

different contention is taken in the review petition in respect of

Sy.No.71/1A and this Court also taken note of the admissions

elicited from the mouth of D.W.1 and detailed discussion has

been made.

10. The counsel would further submit that there cannot

be a review against the order passed by the very same Court

and it is nothing but an appeal against the very same order and

this Court cannot sit and adjudicate the matter again as an

Appellate Authority in respect of the very decision taken by this

Court. The counsel further submits that, another suit is filed

against the respondent and apart from that, execution petition is

also filed before the Trial Court and an application filed in the

execution petition is also rejected and after rejection of the

same, an attempt is made to review the order. The counsel

further submits that, when the review petitioner is disputing the

very jural relationship between the parties, the review petitioner

has deposited the rent amount before the Trial Court in terms of

the order of the Trial Court and this Court. Hence, now, he

cannot question the jural relationship between the parties and

already the finding was given.

11. In reply to the arguments of the learned counsel for

the respondent, learned counsel for the review petitioner

submits that the suit is filed for a different prayer and not

challenging the order passed by this Court or Trial Court. Hence,

the review petition is maintainable and the same has to be

considered by this Court.

12. Having heard the respective counsel and also on

perusal of the material on record, particularly, the grounds urged

in the review petition, the point that would arise for

consideration of this Court are:

(i) Whether the review petitioner has made out a case to review the judgment passed in R.F.A.No.1646/2005 dated 12.11.2021 by exercising the review jurisdiction?

      (ii)    What order?


Point No.(i)

13. Before considering the material on record and the

grounds urged before this Court, this Court would like to refer to

Order 41, Rule 1 of CPC, which reads 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, desired 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."

14. Having read the proviso of Order 41, Rule 1 of CPC,

it is clear that the review petitioner can approach the Court,

when there is an error apparent in the order passed by the Court

and if new and important evidence which, after the exercise of

due diligence was not within his knowledge and for any other

sufficient reason to obtain a review of the decree or order passed

by the Court.

15. Now coming to the grounds urged by the learned

counsel for the review petitioner before this Court in the review

petition, mainly in paragraph No.5 with regard to the mandate of

Sections 47 and 48 of the Indian Trust Act, this Court has come

to the conclusion that the same has not been pleaded before the

Trial Court and consequently, cannot be considered by the

Appellate Court. With regard to the said aspect, this Court,

while dealing with the Regular First Appeal, when the grounds

were urged before the Court with regard to Sections 47 and 48,

specific point was framed as Point No.(i) as to whether the suit is

maintainable or not and the maintainability of the suit is taken

note framing the point for consideration and elaborate reasons

are given in paragraph Nos.47, 48 and 49 of the judgment,

taking note of the contentions urged by the review petitioner.

When this Court has given the finding by framing the particular

point for consideration with regard to the maintainability is

concerned, the same cannot be questioned in a review petition

and only, if there is a mistake apparent on the face of records in

not considering the material on record, review jurisdiction can be

exercised and no such occasion arises before this Court to

consider the same.

16. The other contention of the learned counsel for the

review petitioner is that the trustees are not the owners and

there was no relationship of landlord and tenant and this Court

committed an error in confirming the judgment of the Trial

Court. With regard to the said aspect is concerned, this Court

has framed a specific point for consideration as Point No.(iv) i.e.,

"whether the Trial Court has committed an error in decreeing the

suit directing the appellant-defendant to quit, vacate and deliver

vacant possession of the suit schedule premises" and finding is

given considering the said point.

17. This Court also, while answering Point No.(v) in

paragraph Nos.54 to 59, particularly in paragraph No.62, taken

note of the documents Exs.P2 and P4, wherein the demand was

made to pay the arrears of rent and the same has been

acknowledged and no reply was given to the notice and even

invoked Section 106 of the Transfer of Property Act, before filing

the suit. These are the aspects which have been considered by

this Court, while considering the dispute between the parties,

particularly when the ownership has been disputed. Further, this

Court has also taken note of the admissions elicited from the

mouth of D.W.1 that he is not aware as to who is the owner and

he also not given any answer with regard to on what capacity he

has entered into an agreement in respect of the suit schedule

property and all these aspects have been considered and

reasons are assigned, while passing the impugned judgment

with regard to jural relationship between the parties.

18. When such finding is given by this Court, now, the

review petitioner cannot contend that there is an error apparent

in the judgment passed by this Court in not considering the

grounds urged before this Court. As rightly pointed out by the

learned counsel for the respondent, this Court cannot sit and

consider the grounds urged before this Court as an Appellate

Authority. Further, if there is an error apparent on the face of

records and if any such finding is given, then, it is a matter of

review and based on the appeal grounds, the petitioner cannot

resort to a remedy of review. Hence, I do not find any merit in

the review petition to review the judgment since, there is no

error apparent on the face of records and reasoned judgment

has been passed by framing specific point for consideration with

regard to the grounds which have been urged in the appeal and

if the same is reviewed, it amounts to reviewing the order sitting

as an Appellate Authority against the very own judgment passed

by this Court and the grounds which have been urged before this

Court are the grounds which have to be urged before the

Appellate Court and not before this Court. Therefore, I do not

find any merit in the review petition to entertain the same.

Accordingly, I answer point No.(i) as 'negative'.

Point No.(ii)

19. In view of the discussions made above, I pass the

following:

ORDER

The review petition is dismissed.

Sd/-

JUDGE

ST