Sri. K. Ramkrishna S/O ... vs Smt. K. Udaya Venkatalaxmi W/O K ...
2022 Latest Caselaw 3975 Kant

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                                    RP No. 100070 of 2021


     IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

          DATED THIS THE 09TH DAY OF MARCH, 2022

                         BEFORE
            THE HON'BLE MR JUSTICE P.N.DESAI

            REVIEW PETITION NO. 100070 OF 2021
BETWEEN:

1.    SRI. K. RAMKRISHNA S/O SATYANARAYANA
      AGE. 55 YEARS, OCC. AGRICULTURE
      R/O. CANAL BASAVA CAMP
      AT.POST:. BEVINAL VILLAGE-584229.
      TQ: GANGAVATHI. DIST: KOPPAL.

                                              ...PETITIONER

(BY SRI. DEEPAK MAGANUR.,ADVOCATE)

AND:

1.    SMT. K. UDAYA VENKATALAXMI W/O K RAMAKRISHNA
      AGE. 41 YEARS, OCC. HOUSEHOLD WORK,
      R/O: SRINIVAS CAMP, PO: GUDADINNI
      TQ: MANVI. DIST: RAICHUR-584101.

                                             ...RESPONDENT

     REVIEW PETITION FILED UNDER ORDER 47 RULE 1 OF
CPC, PRAYING TO THE MATTER MAY BE HEARD AFRESH BY
GIVING OPPORTUNITY TO THE PETITIONER BY REVIEWING
THE ORDER DATED 16.09.2021, PASSED IN CIVIL PETITION
100050/2021, PRODUCED AS ANNEXURE-A IN THE INTEREST
OF JUSTICE.

     THIS PETITION COMING ON FOR ORDERS THIS DAY,
THE COURT PASSED THE FOLLOWING:
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                                              RP No. 100070 of 2021


                                ORDER

This petition is filed under Order 47 Rule 1 of

Code of Civil Procedure (for short 'C .P.C.'), with a

prayer to review the order dated 16.9.2021 passed in

Civil Petition No.100050/2021.

2. It is contended by the petitioner that the

respondent-wife filed an Criminal Misc.No.54/2019

before the Family Court, Raichur claiming maintenance

against the p resent petitioner, who was the

respondent in maintenance case. The matter ended in

compromise. The petitioner agreed to pay Rs.6,000/-

per month. Thereafter, he did not pay the amount.

Wife filed a petition for recovery before the Family

Court and also filed a petition under Section 9 of the

Hindu Marriage Act in M.C.No.52 /2019 at Senior Civil

Judge Court, Gangavati seeking restitution of conjugal

rights. It is contended that the distance between

Gangavati to Raichur is about 1 K.M. The petitioner is

poor and he has no source of income. Hence, she has

prayed to transfer the said case to Raichur by filing

Civil Petition No.100050/2021 before this Court.

RP No. 100070 of 2021

3. The notice was returned with a Shara as

"unclaimed". The Court held notice as sufficient and

passed the impugned order in transfer petition. Now

this review petition is filed contend ing that as the

notice was not served on husband. Hence, the same

requires to be corrected. Exercise jurisdiction under

Order 47 Rule 1 of C.P.C.

4. Heard Sri Deepak Maganur, learned counsel

for the petitioner.

5. Learned counsel for the petitioner contended

that the notice postal shara returned with an

endorsement as "not claimed". Therefore, the order

passed without giving hearing to the petitioner is

contrary to rules of natural justice. Learned counsel

further argued that respondent-wife is not resident of

Raichur. But she is residing at Srinivas Camp, Tq:

Manvi and she has sought transfer the petition from

Gangavati to Raichur with a sole intention to prolong

the proceed ing and harass the petitioner. Learned

counsel argued that the d istance between Srinivas

RP No. 100070 of 2021

Camp to Raichur is 50 k.ms and Gangavati to Srinivas

Camp is 100 k.ms. The Court has not considered the

fact that, wherever the case be transferred the

respondent has to travel to attend the case. The

petitioner is the agricultural labourer. H is daughter is

also residing with him and she will be alone at home if

the petitioner has to travel to Raichur to attend the

Court proceedings. The respondent has agricultural

land. The same is not brought to the notice of the

Court. Thus the Court without case has come to wrong

conclusion and has transferred the M.C.No.52/2019 on

the file of Senior Civil Judge, Gangavathi to Family

Court Raichur.

6. I have perused the records produced by the

petitioner. The p etitioner has produced certified copy

of the order sheet of the C ivil Petition

No.100050/2021 which was filed on 05.04.2021. Then

the Court ordered issuance of notice on 22.4.2021. It

is seen that subsequently the Court has ordered to

verify regarding service of notice, as notice is said to

have been issued on 16.09.2021. Then on 15.9.2021

RP No. 100070 of 2021

there is a shara that notice returned with a postal

shara as "unclaimed". The case is posted on 16.9.2021

and petitioner came to be disposed. The petitioner in

civ il petition has stated that she is residing at

Mangalawarpet, Raichur as evident from that petition.

It is also stated that the petitioner has filed

miscellaneous petition for maintenance before the

Family Court, Raichur and execution of the said order

in Miscellaneous Case No.54/2019. The respondent

appeared at Raichur and filed objection. Learned

counsel stated that as per the petition filed by him at

Koppal in M.C .No.52/2012 at Srinivasa Camp, the

address of the petitioner is not correct.

7. I have perused the original records. In

criminal Misc.No.237/2019, which is filed under

Section 128 of Cr.P.C by the wife at Family Court,

Raichur, she has shown her address as

Mangalawarpete, Raichur. So it is the petitioner-

husband, who has shown her ad dress different in his

petition. But according to wife, her address is as

shown in her petition cause title. She has also filed a

RP No. 100070 of 2021

affidavit in this regard. Be as it may , the address of

the present petitioner has nothing to do with the

respondent. On the other hand, wife has produced the

document to show that she is residing at Raichur as

evident from the certified copy of the order sheet in

criminal miscellaneous case. So that contention is not

at all tenable.

8. The next contention is that there is an error

by the Court in accep ting the shara endorsement on

notice postal cover as "not claimed" as sufficient. This

contention is also not tenab le. The address of the

petitioner in this review petition and also in Civil

Petition is one and the same. It is shown that he is

residing in Canal Basava Camp, Post: Bevinal village,

Tq: Gangavathi, Dist: Koppal. Therefore, as per the 27

of the General Clauses Act, there is a presumption of

proper service once the notice is posted to the correct

and ad mitted ad dress of respondent. Apart from that

in a decision reported in 2020 (1) AKR 351 between

Ganesh Shetti Vs Rajan Chaudhary, has held that if

the postal cover properly addressed to address of

RP No. 100070 of 2021

accused and if it is returned as 'not claimed' the n

under the circumstances it can be held that it is

sufficient service of notice. Further, there is another

judgment of co-ordinate Bench of this Court in

Criminal Revision Petition No.448/2008 between

M/s. Shivaganga Exports Prt. Ltd and another Vs

M/s. N.K.Impox, dated 16.07.2008, wherein

learned single judge has held that the service of notice

is sufficient when the postal shara is returned with an

endorsement as "not claimed". On perusal of the

postal cover also it mentions correct address of

husband-petitioner as shown in this petition also.

These are one the same address. Therefore, the

contention of the petitioner in this regard is not

tenable both on facts as well as on law.

9. The next ground urged by the petitioner that

he is leaving his daughter at home and attend the

Court at Raichur. Such contention has no basis at all.

He has already attended the Court at Raichur and got

compromised the case at Raichur Court only . There is

no question of he facing any hardship in attending

RP No. 100070 of 2021

Raichur Court. This Court while passing transfer

petition order has referred two decisions of Supreme

Court reported in the case of Sum ita Singh Vs Kumar

Sanjay and Another reported in AIR 2002 SC 396

and Datla Ravindra Rayapuraju Verma reported in

(2002) 10 SCC 500, and also referred the reasons at

para No.4 and allowed the petition. Therefore, the

order passed by this Court in Civil Petition is neither

erroneous nor there is any error apparent on the face.

There is neither any mistake nor error. The review

petition can be filed only when there is an error

apparent on the face of the record and not any

decisions of the case. The only ground urged is non

service of notice, which is also not tenab le and the

address of wife which according to the petitioner is not

correct is also not tenab le, as borne out from the

records. Even the postal track record, which is

available in file also, shows that the intimation is also

delivered regarding receipt of the postal cover.

10. The scope of review petition is v ery limited.

The Hon'ble Ap ex Court in the case of Kamlesh

RP No. 100070 of 2021

Verma vs. Mayawati and others reported in (2013)

8 SCC 320, has laid down the principles for

considering the grounds of review which could be

maintainab le and the same is quoted hereunder for

ready reference:-

"20.1. When the review will be maintainable:

(i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him;

(ii) Mistake or error apparent on the face of the record;

(iii) Any other sufficient reason.

The words "any other sufficient reason" have been interpreted in Chhajju Ram v. Neki and approved by this Court in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius to mean "a reason sufficient on grounds at least analogous to those specified in the rule". The same principles have been reiterated in Union of India v. Sandur Manganese & Iron Ores Ltd.

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RP No. 100070 of 2021

20.2 When the review will not be maintainable:

(i) A repetition of old and overruled argument is not enough to reopen concluded adjudications.

(ii) Minor mistakes of inconsequential import.

(iii) Review proceedings cannot b e equated with the original hearing of the case.

(iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice.

(v) A review is by no means an appeal in disguise whereb y an erroneous decision is reheard and corrected but lies only for patent error.

(vi) The mere possibility of two views on the subject cannot be a ground for review.

(vii) The error apparent on the face of the record should not be an error which has to be fished out and searched .

(viii) The appreciation of evidence on record is fully within the domain of the

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RP No. 100070 of 2021

appellate court, if cannot be permitted to be advanced in the review petition.

(ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived."

11. The ground s now urged by the petitioner

would not be construed as error apparent on the face

of the record. It would certainly not come within the

princip les laid down by the Hon'ble Apex Court in para

20.1 but would fall under para 20.2 of the judgmen t

referred to supra. The matter which was heard and

disposed of, after critically analyzing the material on

record could not be re-heard since the rev iew is not an

appeal in d isguise.

Therefore, viewed from any angle, the revision

petition does not survive for consideration.

Accordingly, the revision petition is dismissed.

SD/-

JUDGE

AM