Karnataka High Court
Sri.Basavraj Annasaheb Chougule vs Dattaraya Babji Pol on 4 December, 2023
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RP No. 100032 of 2020
C/w. RP No. 100033 of 2020
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 4TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
REVIEW PETITION NO.100032 OF 2020
C/W
REVIEW PETITION NO.100033 OF 2020
IN REVIEW PETITION NO.100032 OF 2020
BETWEEN:
1. SRI. BASAVRAJ ANNASAHEB CHOUGULE
AGE ABOUT 41 YEARS, OCC: AGRICULTURE,
RESIDENT OF GIRAGAON, TQ: CHIKODI
DIST: BELAGAVI-591214.
2. SMT. VIMAL W/O ANNASAHEB CHOUGULE
AGE ABOUT 71 YEARS, OCC: HOUSEHOLD WORK,
RESIDENT OF GIRAGAON, TQ: CHIKODI
DIST: BELAGAVI-591214.
Digitally
signed by 3. MISS. ANNAPURNA ANNASAHEB CHOUGULE
VISHAL
VISHAL NINGAPPA AGE ABOUT 36 YEARS, OCC: HOUSEHOLD WORK,
NINGAPPA PATTIHAL
PATTIHAL Date: RESIDENT OF GIRAGAON, TQ: CHIKODI
2023.12.16
11:13:23 DIST: BELAGAVI-591214.
+0530
4. SOU. SAMPATTA W/O MAHADEV DESAI
AGE ABOUT 46 YEARS, OCC: HOUSEHOLD WORK,
RESIDENT OF GIRAGAON, TQ: CHIKODI
DIST: BELAGAVI-591214.
5. SOU. JYOTI @ SHRIDEVI BASAVRAJ CHOUGULE
AGE ABOUT: 36 YEARS, OCC: HOUSEHOLD WORK,
RESIDENT OF GIRAGAON, TQ: CHIKODI
DIST: BELAGAVI-591214.
...PETITIONERS
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RP No. 100032 of 2020
C/w. RP No. 100033 of 2020
(BY SRI. VISHWANATH HEDGE, ADVOCATE)
AND:
DATTARAYA BABJI POL
SINCE DECEASED, REP. BY HIS LRS.,
CHAMPABAI W/O DATTATHREYA POL,
SINCE DECEASED, REP. BY HER LRS.
1. SURESH S/O DATTATHREYA POL,
AGED ABOUT 40 YEARS, OCC: AGRICULTURE,
R/O NAGARAL, TQ: CHIKODI AND SANGLI
DIST: BELAGAVI-591214.
SHANKAR NARAYAN HARIDAS
SINCE DECEASED REPRESENTED BY HIS LRS
SMT. PARAVATIBAI
SINCE DECEASED BY HER LRS.
2. SMT. RAJUANI W/O VASANTRAO HUNAGUND
AGED ABOUT 48 YEARS,
R/O. WADA GALLI, CHIKODI
TQ: CHIKODI, DIST: BELAGAVI-591214.
3. CHAMPABAI W/O VIJAY KULKARNI
AGED ABOUT 55 YEARS, OCC: SERVICE (TEACHER)
R/O: KAPIL TEERTH VANGI BOL
KOLHAPUR AND SERVING AT G P SCHOOL
MUDASINGI, KOLHAPUR-416113.
...RESPONDENTS
(BY SRI. SHIVARAJ S.BALLOLI, ADVOCATE FOR R1 TO R3)
THIS REVIEW PETITION IS FILED UNDER SECTION 114 READ
WITH ORDER 47(1) OF THE CODE OF CIVIL PROCEDURE, 1908,
READ WITH SECTION 151 OF CPC, PRAYING TO - A. REVIEW THE
ORDER DATED 14.02.2020 DISMISSING THE I.A. NO. I/2019,
II/2019 AND III/2019 AND CONSEQUENTLY I.A. NO. 1/2019. II/2019
AND III/2019 BE ALLOWED IN THE INTEREST OF JUSTICE. B.
CONSEQUENTLY THE JUDGMENT AND DECREE DATED 28.03.2018 IN
RSA NO. 933/2004 BE DIRECTED TO BE LISTED FOR FINAL
HEARING. C. COST OF THE REVIEW MAY KINDLY BE AWARDED IN
FAVOUR OF PETITIONERS AND AGAINST RESPONDENTS ALONG
WITH SUCH OTHER RELIEF AS THE HONBLE COURT DEEMS FIT.
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RP No. 100032 of 2020
C/w. RP No. 100033 of 2020
IN REVIEW PETITION NO.100033 OF 2020
BETWEEN:
1. SRI. BASAVRAJ ANNASAHEB CHOUGULE
AGE ABOUT 41 YEARS, OCC: AGRICULTURE,
RESIDENT OF GIRAGAON, TQ: CHIKODI
DIST: BELAGAVI-591214.
2. SMT. VIMAL W/O ANNASAHEB CHOUGUL,
AGE ABOUT 71 YEARS, OCC: HOUSEHOLD WORK,
RESIDENT OF GIRAGAON, TQ: CHIKODI
DIST: BELAGAVI-591214.
3. MISS. ANNAPURNA ANNASAHEB CHOUGULE
AGE ABOUT 36 YEARS, OCC: HOUSEHOLD WORK,
RESIDENT OF GIRAGAON, TQ: CHIKODI
DIST: BELAGAVI-591214.
4. SOU. SAMPATTA W/O MAHADEV DESAI
AGE ABOUT 46 YEARS, OCC: HOUSEHOLD WORK,
RESIDENT OF GIRAGAON, TQ: CHIKODI
DIST: BELAGAVI-591214.
5. SOU. JYOTI @ SHRIDEVI BASAVRAJ CHOUGULE
AGE ABOUT 36 YEARS, OCC: HOUSEHOLD WORK,
RESIDENT OF GIRAGAON, TQ: CHIKODI
DIST: BELAGAVI-591214.
...PETITIONERS
(BY SRI. VISHWANATH HEGDE, ADVOCATE)
AND:
DATTARAYA BABJI POL
SINCE DECEASED, REP. BY HIS LRS.,
CHAMPABAI W/O. DATTATHREYA POL,
SINCE DECEASED, REP. BY HER LRS.,
1. SURESH S/O DATTATHREYA POL,
AGED ABOUT 40 YEARS, OCC: AGRICULTURE,
R/O NAGARAL, TQ: CHIKODI AND SANGLI
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NC: 2023:KHC-D:14139
RP No. 100032 of 2020
C/w. RP No. 100033 of 2020
DIST: BELAGAVI-591214.
SHANKAR NARAYAN HARIDAS
SINCE DECEASED REPRESENTED BY HIS LRS
SMT. PARAVATIBAI
SINCE DECEASED BY HER LRS.
2. SMT. RAJUANI W/O VASANTRAO HUNAGUND
AGED ABOUT 48 YEARS,
R/O: WADA GALLI, CHIKODI,
TQ: CHIKODI, DIST: BELAGAVI-591214.
3. CHAMPABAI W/O VIJAY KULKARNI
AGED ABOUT 55 YEARS, OCC: SERVICE (TEACHER)
R/O: KAPIL TEERTH VANGI BOL
KOLHAPUR AND SERVING AT G P SCHOOL
MUDASINGI, KOLHAPUR-416113.
...RESPONDENTS
(BY SRI. SHIVARAJ S.BALLOLI, ADVOCATE FOR R1;
NOTICE TO R2 AND R3 IS SERVED)
THIS REVIEW PETITION IS FILED UNDER SECTION 114 R/W
ORDER 47(1) OF THE CODE OF CIVIL PROCEDURE, 1908, R/W
SECTION 151 OF CPC, PRAYING TO REVIEW THE JUDGMENT AND
DECREE DATED 28.3.2018 PASSED IN RSA NO. 933/2004 ON THE
FILE OF HONBLE HIGH COURT OF KARNATAKA, DHARWAD BENCH,
CONSEQUENTLY THE JUDGMENT AND DECREE DATED 28.3.2018 IN
RSA NO.933/2004 BE RECALLED AND RSA NO.933/2004 BE
DIRECTED TO BE LISTED FOR FINAL HEARING TO PROVIDE
OPPORTUNITY OF HEARING TO THE PETITIONERS IN THE INTEREST
OF JUSTICE.
THESE REVIEW PETITIONS, COMING ON FOR ADMISSION,
THIS DAY, THE COURT MADE THE FOLLOWING:
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RP No. 100032 of 2020
C/w. RP No. 100033 of 2020
ORDER
The present Review Petition No.100032/2020 is filed
seeking to review the order passed on I.A Nos.1/2019 to
3/2019, whereby, the application filed seeking to recall the
order in RSA No.933/2004, was dismissed by this Court.
2. The Review Petition No.100033/2020 is filed to
review the Judgment and decree dated 28.03.2018 passed
in RSA No.933/2004 by the Co-ordinate Bench of this
Court and consequently to recall the order dated
28.03.2018 in RSA No.933/2004.
3. Heard Sri. Vishwanath Hegde the learned
counsel for the petitioner and Sri. Shivaraj S. Balloli
learned counsel appearing for the respondent.
4. This Court on 14.02.2020 passed a detailed and
considered order on I.A Nos.1/2019 to 3/2019 as is
evident from para Nos.13 onwards considering all the
contentions raised by the appellants herein and held that
the appellants have not made out a cause to recall the
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order passed by the Coordinate Bench of this Court on
28.03.2018.
5. The present review petitions are filed under
Order XLVII Rule 1 CPC contending that there is an
apparent error. Order XLVII Rule 1 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
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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.]
6. The Apex Court in the case of Smt. Meera
Bhanja Vs. Smt. Nirmala Kumari Choudary1 at para
No.8 has 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,
AIP 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
AIR 1995 SC 455
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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
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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."
7. On plain reading of Order XLVII Rule 1 CPC and
in view of the dictum of the Apex Court in the case of
Meera Bhanja1 stated supra, the power of review is
available only when there is an error apparent on the face
of the record and not the erroneous decision. The power of
review under Order XLVII Rule 1 CPC may be opened inter
alia, only if there is a mistake or an error on the face of
the record and a review application cannot be held to be
an appeal in disguise.
8. The very Court which passed the final order in
RSA No.933/2004, has considered the applications filed by
the appellant herein seeking to recall the final order in RSA
No.933/2004 and the Court has held that the order passed
by this Court in regular second appeal cannot be recalled
and observed at para No.18 as under:
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18. Applying the above principles to the
facts of the case, the courts below having
held that the sale deed obtained by the
original defendant No. 2 (respondent No. 4)
was Void abnitio and the said finding having
attained finality, in my view, neither
defendant No.2/respondent No.4 nor his
legal representatives are required to join the
sale deed, as such, defendant No.2 was not
a necessary party to the appeal. Since the
sale deed obtained by defendant No.2
(respondent No.4) was held void abnitio
before his death and the said finding having
attained finality, his legal representatives
did not derive any right to sue and
consequently, they are not entitled to come
on record".
9. Looking into the order of this Court, failing to
review/recall the final order, this Court is of the considered
view that there is no error apparent to review the order on
I.A Nos.1/2019 to 3/2019 and reviewing the Judgment
passed by this Court in RSA No.933/2004 dated
20.03.2018. In light of the said circumstances, the Review
Petitions stand dismissed as devoid of merits.
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Pending I.As, if any, would not survive for
consideration.
Sd/-
JUDGE
PJ, CT: UMD
