Karnataka High Court
Sri Gangadhar H vs Sri Santhoshkumar L on 25 September, 2023
Bench: H.P.Sandesh
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NC: 2023:KHC:34788
RP No. 446 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REVIEW PETITION NO. 446 OF 2023
IN
M.F.A.No.2054/2023
C/W.
M.F.A.No.2061/2023
BETWEEN:
1. SRI GANGADHAR H,
S/O SRI HURUGAIAH,
AGED ABOUT 47 YEARS,
RESIDING AT NO.11/1
10TH CROSS, 10TH MAIN ROAD,
AGRAHARA DASARAHALLI
BASAVESHWARANAGAR,
BENGALURU - 560 079.
...PETITIONER
(BY SRI P.N.RAJESHWAR, ADVOCATE FOR
SRI SHRIDHARAMURTHY H.R., ADVOCATE)
AND:
Digitally signed 1. SRI SANTHOSHKUMAR L.,
by SHARANYA T S/O SRI. LAKSHMEGOWDA,
Location: HIGH AGED ABOUT 40 YEARS,
COURT OF
KARNATAKA R/AT CHANDENAHALLI VILLAGE,
VIJAYAPURA POST,
BENGALURU RURAL DISTRICT.
2. SRI. V. CHANDRAPPA
S/O VENKATA REDDY,
AGED ABOUT 60 YEARS,
R/AT CHANNASANDRA COLONY
UTTARAHALLI HOBLI,
BENGALURU-560 061.
...RESPONDENTS
(BY SRI SHIVAPRASAD E., ADVOCATE)
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RP No. 446 of 2023
THIS REVIEW PETITION IS UNDER ORDER XLVII RULE 1
READ WITH SECTION 114 OF THE CPC, PRAYING TO CALL FOR
RECORDS IN MFA NO. 2054/2023 AND MFA 2061/2023, HEAR
THE PARTIES AND PASS THE FOLLOWING ORDERS: PASS AN
ORDER TO REVIEW JUDGMENT DATED 7.8.2023, PASSED IN
MFA NO.2054/2023 C/W MFA NO.2061/2023 AND DISMISS
THE SAME AND TO PASS SUCH OTHER ORDER AS THIS
HONBLE COURT DEEMS FIT TO PASS, IN THE INTEREST OF
JUSTICE AND EQUITY.
THIS PETITION COMING ON FOR ORDERS THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
Heard the review petitioner's counsel and also the counsel
appearing for the respondents.
2. This review petition is filed to review the order
passed by this Court in M.F.A.No.2054/2023 connected with
M.F.A.No.2061/2023 and pass such other order.
3. Counsel for the review petitioner would vehemently
contend that an application is filed under Order 39 Rules 1 and
2 in respect of both site Nos.7 and 8 and given common
description and this Court vacated the interim order in respect
of site No.8 also and only appellant filed appeal in respect of
site No.7 and also brought to notice of this Court that site
Nos.7 and 8 are commonly purchased by the review petitioner
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RP No. 446 of 2023
under one sale deed and common boundaries are given in
respect of site Nos.7 and 8 and hence, the order passed by this
Court is mistake apparent on record in setting aside the entire
order passed on an application filed under Order 39 Rule 1 and
2 and ought to have vacated the same in respect claim made
by the appellant in the appeals.
4. The counsel for the respondents in this review
petition and appellants in M.F.A.No.2054/2023 connected with
M.F.A.No.2061/2023 also not disputes the fact that the
appellant in the appeals claiming right in respect of site No.7
only. The counsel for the appellant in the appeals would submit
that this Court in detail passed the order and operative portion
No.3 is very clear that respondent No.1 is also directed to
forthwith restore the possession in favour of appellant and
respondent No.2 in respect of the residential premises and also
the shop premises which is located in site No.7 forthwith, and
to remove the compound wall which was put during the
pendency of the suit based on temporary injunction.
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RP No. 446 of 2023
5. The order itself is very clear that this Court set
aside the order passed on Order 39 Rules 1 and 2 in operative
portion No.2 and hence it does not requires any interference.
6. Having heard the counsel for the review petitioner
and also on perusal of the appeals filed by the appellant, the
point that would arise for consideration of this Court, whether
Court has to review the order passed by this Court and the
review petitioner is made out a case to review the same.
7. Having heard the respective counsel and also the
order passed by the Apex Court also is very clear that, liberty is
given to the review petitioner when the counsel appearing for
the review petitioner made the submission before the Appellate
Court that the High Court order is not in consonance with the
pleadings or the material on record and hence, Apex Court
granted liberty to file a review petition before the Court, when
the leave was sought before the Apex Court. The counsel also
brought to notice of this Court that in the original suit, an
application is filed under Order 39 Rule 1 and 2 in respect of
both site Nos.7 and 8 and also records discloses that common
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RP No. 446 of 2023
boundaries are given and also it is not in dispute that the
review petitioner had purchased the property under one sale
deed both site Nos.7 and 8 and it is not in dispute that earlier
while granting the said site Nos.7 and 8, separate boundaries
and descriptions are given and hence in terms of the said
boundaries and description, it is appropriate to review the
order, since the appellants have sought claim only in respect of
Site Nos.7 and not claiming any right in respect of site No.8.
Consequent upon passing of the said order, the entire schedule
premises which is mentioned commonly is affected when the
appellant did not approach the Court claiming site No.8 and
when such being the case, the order requires review by
allowing the application filed under Order 39 Rule 4 modifying
the application filed under Order 39 Rule 1 and 2 that
injunction granted in respect of site No.7 which is vacated is
made it clear only in respect of site No.7 and hence this review
petition is partly allowed in respect of site No.8 is concerned
and other order and observation made by this Court is not
touched upon in respect of site No.7 and hence, I answer the
point as partly affirmative.
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RP No. 446 of 2023
8. In view of the discussions made above, I pass the
following:
ORDER
Review petition is allowed in part and earlier order setting
aside the order passed under Section 39 Rule 1 and 2 is
restricted only in respect of site No.7 and not in respect of site
No.8.
In view of clarification made by this Court, the review
petitioner is directed to comply with the order passed by this
Court forthwith and this Order will not come in the way of the
rights of the parties while considering the suit on merits.
Sd/-
JUDGE
AP
