M G Shanthkumar Since Dead ... vs N Jayaram
2022 Latest Caselaw 11564 Kant

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 5TH DAY OF SEPTEMBER 2022

                      PRESENT

      THE HON'BLE MR. JUSTICE B. M. SHYAM PRASAD

                         AND

         THE HON'BLE MR. JUSTICE E.S. INDIRESH

            REVIEW PETITION NO. 416/2021
                         IN
                  RFA NO.604/2005

BETWEEN :

      M G SHANTHKUMAR
      SINCE DEAD REPRESENTED BY HIS LRS.

1     M G DATTATHREYA
      AGED ABOUT 55 YEARS,
      SON OF LATE M L. GOPALA SETTY,
      146, 5TH CROSS, 8TH MAIN,
      II BLOCK, JAYANAGAR,
      BANGALORE - 560 011.

2.    M G CHANDRAMOHAN
      AGED ABOUT 68 YEARS,
      SON OF LATE M L. GOPALA SETTY,
      15/1, 10TH C MAIN, I BLOCK,
      JAYANAGAR,
      BANGALORE - 560 011.

3.    M G NAGENDRA
      SINCE DEAD AND REPRESENTED BY HIS
      SON AND LR
                           2




     SUNIL NAGENDRA MYSORE,
     AGED AOBUT 42 YEARS,
     SON OF LATE M G NAGENDRA,
     NO 9, 15TH CROSS, 6TH PHASE,
     J P NAGAR, BANGALORE - 560078.

4.   M G JAYARAM
     AGED ABOUT 65 YEARS,
     SON OF LATE M L GOPALA SETTY,
     APT NO 1002, C BLOCK, STERLING
     TERRACE APARTMENTS, 3,
     100 FEET RING ROAD, BSK III STAGE,
     BANGALORE 560085.

5.   M G RAMESH
     AGED ABOUT 62 YEARS,
     SON OF LATE M L GOPALA SETTY,
     NO 1314, 3RD FLOOR, 15TH CROSS,
     GIRINAGAR, II STAGE,
     BANGALORE 560085.

6.   SMT R VIMALA @ SMT SUBDHARA
     @ VIMALA DEVI
     AGED ABOUT 77 YEARS,
     D/O LATE M L GOPALA SETTY,
     W/O B RAGHAVAN,
     OLD NO 5/1A, RAGHAVAN STREET,
     SWARNAPURI SALEM 636004.

7.   SMT B K UMA @ SMT B S UMA DEVI
     AGED ABOUT 63 YEARS,
     D/O LATE M L GOPALA SETTY,
     W/O B SOMASHEKAR,
     H I G 47, K H B COLONY,
     VINOBHA NAGAR, II STGE,
     SHIMOGA 572054
                            3



8.     SMT RUKMINI
       SUKUMAR,
       AGED ABOUT 58 YEARS,
       D/O LATE M L GOPALA SETTY,
       W/O LATE K SUKUMAR,
       NO 69/70, NICHOLAS ROAD,
       FLAT NO 58, LAND MARK TOWN HALL,
       CHETPET, CHENNAI 600031,
       TAMIL NADU

9.     SMT Y R SARASWATHI
       AGED ABOUT 56 YEARS,
       D/O LATE M L GOPALA SETTY,
       W/O Y N RAJENDRA,
       SAOWAN APARTMENTS,
       GROUND FLOOR, NO 19,
       VIVEKANANDA ROAD, YADAVGIRI,
       MYSORE 570020

10 .   SMT GAYATHRI @ GAYATHRI KISHOR
       AGED ABOUT 52 YEARS,
       D/O LATE M L GOPALA SETTY,
       W/O S KISHOR, NO 4, P AND T COLONY,
       STAFF ROAD,OPPOSITE
       SECUNDRABAD CLUB,
       SECUNDRABAD 400003,
       TELANGANA.

11 .   SMT VIJAYALAKSHMI @
       SMT M J VIJAYALAKSHMI
       AGED ABOUT 64 YEARS,
       W/O LATE M G JAGADISH
       NO 369 (5) 8TH CROSS,
       10TH MAIN I BLOCK, JAYANAGAR,
       BANGALORE - 560 011.

12 .   SMT AKHILA @ SMT AKHILA
       D ANANTHRAM
       AGED ABOUT 40 YEARS,
                              4



       W/O D R ANANTHRAM,
       D/O LATE M G JAGADISH,
       NO 125, 7TH MAIN, 9TH CROSS,
       GOKULAM II STAGE,
       MYSORE 570002.

13 .   VINAY @ VINAY M JAGADISH
       AGED ABOUT 37 YEARS,
       S/O LATE M G JAGADISH,
       NO 369(5), 8TH CROSS, 10TH MAIN,
       I BLOCK, JAYANAGAR,
       BANGALORE - 560 011.
                                          ... PETITIONERS

(BY SRI. R.V.S. NAIK, SENIOR ADVOCATE FOR
    SRI. NITIN PRASAD, ADVOCATES)
AND :

1      N JAYARAM
       SON OF LATE S NAGAPPA,
       AGED ABOUT 53 YEARS,
       RESIDING AT NO 320/E,
       9TH A MAIN ROAD,
       40TH CROSS, 5TH BLOCK,
       JAYANAGAR,
       BANGALORE - 560 011.

2      ZAHIR AHMED
       SON OF BUDDAN BAIG,
       AGED ABOUT 61 YEARS,
       RESIDING AT NO 84/5, 4TH CROSS,
       8TH MAIN, TILAK NAGAR,
       BANGALORE - 560 041.
                                          ... RESPONDENTS

(BY SRI ASHOK HARANAHALLI, SENIOR ADVOCATE FOR
 SRI. A.S. MAHESH, ADVOCATE FOR R1;
SRI. A. KUMARAVEL, ADVOCATE FOR R2)
                            5



     THIS REVIEW PETITION IS FILED UNDER ORDER
XLVII RULE 1 R/W SECTION 114 OF CPC, PRAYING TO
CALL FOR THE RECORDS IN R.F.A. NO. 604/2005 AND
REVIEW THE JUDGMENT DATED 07/09/2021 PASSED BY
THIS COURT IN RFA NO. 604/2005 (ANNEXURE-A).

    THIS    REVIEW   PETITION COMING ON   FOR
PRONOUNCEMENT OF ORDERS, THIS DAY, B.M. SHYAM
PRASAD J., DELIVERED THE FOLLOWING:

                      ORDER

This Court in partly allowing the petitioners'

appeal in RFA No.604/2005 by the Judgment dated

07.09.2021 has set aside the Judgment and decree

dated 11.01.2005 in OS No. 3992/2001 on the file of

the VIII Additional City Civil Judge, Bengaluru [for

short, 'the civil Court'] and has remanded the suit for

fresh disposal with certain observations. This Court

has called upon the civil Court to decide the suit

expeditiously and in any event within the outer limit of

nine [9] months from the date of receipt of a certified

copy of the Judgment dated 07.09.2021. The present

petition is filed for review of this judgment dated

07.09.2021.

2. Sri. R.V.S. Naik, the learned Senior Counsel

for the petitioners, submits that this Court must review

the Judgment dated 07.09.2021 because of certain

obvious and indisputable typographical errors in

mentioning the details of certain proceedings, the

subject sale deeds and dates, and because this Court's

opinion that the suit must be remitted for retrial under

Order XLI Rule 23A of the Code of Civil Procedure, 1908

[for short, 'the CPC'] is without considering the law

exposited by the Hon'ble Supreme Court in Uttaradi

Mutt v. Raghavendra Swamy Mutt1. Sri. R.V.S. Naik

elaborates his submissions on these two grounds thus:

On the typographical errors in the judgment dated 07.09.2021:

1 (2018) 10 Supreme Court Cases 484

2.1 Sri M.G. Shantha Kumar, the plaintiff in

O.S. No.2791/2001, has impugned eight sale deeds that

were obtained in the year 1999 from him under duress.

The petitioners' specific case is that he was abducted at

the instance of the second respondent and the sale

deeds obtained under duress. Though the sale deeds are

allegedly signed on 25.02.1999, they are presented for

registration with the concerned Sub-Registrar only on

21.04.1999. It can even otherwise be demonstrated that

the sale deeds are void. The suit in OS No. 2791/2001

is dismissed but with this judgment being called in

question in RFA No.472/2014, the appeal is allowed by

this Court's judgment dated 25.03.2015 cancelling the

aforesaid eight sale deeds. This Court's judgment in

RFA No. 472/2014 is confirmed with the dismissal of

the SLP in SLP No.213/2017 by the Hon'ble Supreme

Court on 11.02.2017.

2.2 Sri M.G. Shantha Kumar was also abducted

earlier in the year 1997 and certain documents

obtained. These documents are impugned by him in the

present suit in OS No. 3992/2001, which is decided by

the impugned Judgment and decree dated 11.01.2005.

There are earlier proceedings in OS No. 4279/1989 and

a clutch of other proceedings, but there are no

proceedings as regards the subject property in OS No.

472/2014. The civil Court could not have had the

benefit of the judgment of this Court in RFA No.

472/2014 when it delivered its judgment dated

11.01.2005, but this Court has observed that the civil

Court should have taken note of the judgment in the

said appeal. Apart from this error, there are following

errors:

a] In paragraph-11 of the Judgment, OS No.

427/1989 is mentioned, but it should be OS No.

4279/1989;

b] In paragraph 24.2 of the judgment, there is

reference to Exhibit P12, a report by the Registrar

[Vigilance]. This Report is in respect of the documents

filed in WP No.37551/1997 and not in respect of the

sale deed. However this Court has recorded that this

Report relates to the sale deed dated 29.07.1970;

c] In paragraph 25.5, the date of the impugned

judgment is mentioned as 30.09.1995 but it must be

11.01.2005. Similarly, the numbers of the suit in OS

No. 2791/2001 and RFA No. 472/2014 are also wrongly

mentioned in this paragraph.

On this Court remanding the suit for fresh disposal under Order XLI Rule 23A of CPC:

2.3 The petitioners have filed certified copies of

the pleadings in OS No. 2791/2001 and a certified copy

of the judgment in RFA No. 472/2014 along with an

application under XLI Rule 27 of CPC with leave to

produce these documents as additional evidence. The

respondents did not object, and as such on 22.01.2020,

this Court has allowed the application taking these

documents on record and marking them as Exhibits

P27-P33. This Court has recorded that the learned

counsel for the first respondent did not have any

objection for allowing the application.

2.4 This Court has opined that evidentiary value

of these documents has to be appreciated, scrutinized

and a finding recorded on the basis of oral evidence that

the parties may tender with regard to these Exhibits

and therefore, the suit requires to be remanded.

However, the decision of the Hon'ble Supreme Court in

Uttaradi Mutt v. Raghavendra Swamy Mutt [supra] is

that the appellate courts must not exercise jurisdiction

under the provisions of Order XLI Rule 23A of CPC

without considering having recourse to the provisions of

Order XLI Rule 25 of CPC. Therefore, this Court, in

terms of the provisions of Order XLI Rule 25 of CPC,

should have framed material question and referred the

same to the civil Court to take additional evidence in the

light of Exhibits P27-P33 and return such additional

evidence with its finding and reasoning on such

question. This Court's failure to consider this recourse

is an undeniable error apparent on the face of the

record and hence, this Court must review the judgment

dated 07.09.2021.

2.5 The Hon'ble Supreme Court back in the year

1964 in its celebrated decision in Tungabhadra

Industries Ltd v. Government of AP2 has exposited

that where there is a decision of the Hon'ble Supreme

Court bearing on a point and the Court has taken a

view which is not consistent with such decision, that

2 AIR 1964 SC 1372

clearly would be an error apparent on the record. As

such, the grounds for review are established.

3. Sri. Ashok Haranahalli, the learned Senior

Counsel for the respondents, submits that the

respondents would not contest the typographical errors

that have been pointed out. This Court could correct

such typographical errors in exercise of the jurisdiction

under section 152 of CPC, but such errors cannot be a

reason for review of the judgment dated 07.09.2021.

Therefore, though this Court may correct the

typographical errors pointed out by the other side, this

Court cannot review the judgment dated 07.09.2021

because of such errors.

3.1 Sri. Ashok Haranahalli next submits that this

Court has also interfered with the impugned judgment

dated 11.01.2005 because of the categorical finding that

the civil Court has erroneously dismissed the suit

without proper consideration of evidence and without

considering circumstances such as the commencement

of several suits. This Court's opinion that the

controversy must be revisited in the light of the

additional evidence permitted in the appeal after due

opportunity to the parties to lead oral evidence is

another circumstance which has prevailed. The

canvass that this Court has not considered the efficacy

of having recourse to the provisions of Order XLI Rule

25 of CPC would be factually incorrect inasmuch the

petitioners cannot deny that this Court has referred to

its earlier decision in Bellur Usha Shivaprasad and

others v. Smt. Saramba Anantha Swamy and

others3. In this regard this Court's attention is drawn to

paragraph 25 of the judgment dated 07.09.2021.

3 In RFA No. 1522/2013 which is decided on 02.06.2020

4 It is obvious from the rival submissions that the

typographical errors pointed out on behalf of the

petitioners are not disputed, and Sri. R.V.S. Naik does

not contest Sri. Ashok Haranahalli's submissions that

the errors could be corrected in exercise of the

jurisdiction under Section 152 of CPC. Therefore, the

question for consideration is:

Whether this Court must review the judgment dated 07.09.2021 because the suit is restored for fresh consideration under Order XLI Rule 23A of CPC despite the Hon'ble Supreme Court's judgment in Uttaradi Mutt v. Raghavendra Swamy Mutt [supra].

4.1 The decision in Uttaradi Mutt v.

Raghavendra Swamy Mutt (supra) is an authority for

the proposition that if the provisions of Order XLI Rule

23 of CPC contemplate remand when a suit is disposed

of by a decision on a preliminary point which is reversed

in appeal, the provisions of Order XLI Rule 23A of CPC

contemplate remand in all other residuary category of

cases where the suits are not disposed of by a decision

on a preliminary point. The continuation of this

proposition is also that while exercising such

jurisdiction, the appellate Courts are duty bound to

keep in mind the provisions of Order XLI Rules 25 and

26 of CPC.

4.2 Sri. Ashok Haranahalli is right in his

submissions that this Court, in referring to its decision

in Bellur Usha Shivaprasad and others v. Smt.

Saramba Anantha Swamy and others, has decided

on remand under Order XLI Rule 23A of CPC instead of

having recourse to the provisions of Order XLI Rule 25

of CPC. It cannot be gainsaid that this Court in

referring to its aforesaid earlier decision, where there is

reference to the provisions of Order XLI Rule 23, 23A,

25 of CPC, has found it just and proper to remand the

suit for fresh consideration. This Court, given the

limited jurisdiction under Order XLVII Rule 1 of CPC,

cannot revisit the merits of such finding. It would be

useful to refer to the decision of the Hon'ble Supreme

Court in Sri. Ram Sahu [Dead] through Lrs v. Vinod

Kumar Rawat and others4 wherein it is reiterated

that a review is not an appeal in disguise and a review

Court does not sit in appeal over its own orders.

4.3 This Court for the foregoing must answer the

question for consideration in the negative and conclude

that this Court cannot review the judgment dated

07.09.2021 in RFA No. 604/2005 on the ground that

the same is despite the decision in Uttaradi Mutt v.

Raghavendra Swamy Mutt [supra]. However, the

judgment dated 07.09.2021, in the light of the

4 2020 SCC Online SC 896

undisputed typographical errors, must be read subject

to the following corrections:

[i] In paragraph 11 of the judgment, the

reference to OS No. 427/1989 must be

read as OS No. 4279/1989;

[ii] In paragraph 24.2 of the judgment, the

reference to Exhibit P12, a report by the

Registrar [Vigilance], must be read as

related to the proceedings in WP

No.37551/1997;

[iii] In paragraph 25.5 of the judgment, the

date of the impugned judgment

mentioned therein must be read as

11.01.2005 and the reference to the

corresponding proceedings must be to

OS No. 2791/2001 and RFA No.

472/2014.

The petition stands disposed of accordingly.

Sd/-

JUDGE

Sd/-

JUDGE

nv*

BMSPJ & ESIJ:

05.09.2022                            R.P.NO.416/2021

                         ORDER

After pronouncement of orders, Sri R.V.S. Naik,

the learned Senior Counsel for the petitioners, submits

that the petitioners must have liberty to explore the

possibility of calling in question this judgement dated

07.09.2021 in RFA No.604/2005 and this Court, while

extending time for the civil Court to decide the suit in

terms of the judgment dated 07.09.2021, could consider

this request granting some reasonable time. He also

submits that the time granted by this Court at the first

instance has expired, but there is no progress in the

suit.

On a careful consideration of these submissions,

this Court is of the considered view that there must be 9

(nine) months time for the civil Court from today to

dispose of the suit in terms of the judgment dated

07.09.2021.

The Registry is directed to return forthwith the

certified copy of the judgment dated 07.09.2021 in RFA

No.604/2005 to the learned Counsel for the petitioners,

subject to its substitution with a true copy.

Sd/-

JUDGE

Sd/-

JUDGE

NV