Karnataka High Court
Smt Sunitha vs Sri G Paramasivaiah on 1 July, 2024
1 R.P.No.586/2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF JULY 2024
PRESENT
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR.JUSTICE RAMACHANDRA D. HUDDAR
REVIEW PETITION NO.586/2023
IN
MISCELLANIES FIRST APPEAL NO.8171/2022
BETWEEN:
1. SMT. SUNITHA
D/O. LATE BASAVARAJ
AGED ABOUT 48 YEARS
2. SRI. D. VINAY
S/O K. S. DINESH
AGED ABOUT 23 YEARS
3. KUMARI D VIDYA
D/O K. S. DINESH
AGED ABOUT 21 YEARS
ALL ARE RESIDENTS OF
R/AT NO.323, 15TH CROSS,
SADASHIVANAGAR,
BANGALORE - 560 080 ...PETITIONERS
(BY SRI. S.M.CHANDRASHEKAR, SENIOR ADVOCATE FOR
SRI.H.B.CHANDRASHEKAR, ADVOCATE)
AND:
1. SRI. G. PARAMASIVAIAH
S/O. LATE H. GANGAPPA
AGED ABOUT 77 YEARS
2 R.P.No.586/2023
R/O NO. 7, 1ST FLOOR
KEMPANNA LAYOUT
1ST MAIN ROAD, PALACE GUTTAHALLI
BANGALORE-560 020
2. SMT. CHANDRAMMA
D/O. LATE H. GANGAPPA,
W/O M. SHANTKUMAR,
AGED ABOUT 82 YEARS,
RESIDENT OF NO.380, POORNIMA,
4TH D MAIN, 12TH CROSS,
WEST OF CHORD ROAD, II STAGE,
BANGALORE-560 086.
3. SMT. UMADEVI
D/O. LATE H. GANGAPPA,
WIFE OF D.S. NAGARAJ,
AGED ABOUT 57 YEARS,
RESIDENT OF NO. 42,
14TH CROSS, II STAGE,
2ND PHASE, WEST OF CHORD ROAD,
MAHALAKSHMIPURAM,
BANGALORE - 560 086.
4. SMT. RUDRAMMA
D/O. LATE H. GANGAPPA,
WIFE OF LATE CHANDRAIAH,
AGED ABOUT 78 YEARS,
RESIDENT OF CHENNAKESHAVA,
TEMPLE STREET, TARIKERE TOWN,
CHIKMAGALURU DISTRICT - 577 228.
5. SMT. VANAJAKSHI
D/O. LATE H. GANGAPPA,
W/O LATE SHIVAKUMAR,
AGED ABOUT 62 YEARS,
RESIDENT OF GANESHA TEMPLE STREET,
NEW SATELLITE TOWN,
YELAHANKA, BANGALORE-560 064.
6. SMT. SARVAMANGALA GOWRI
D/O. LATE H. GANGAPPA,
W/O. P. MADAPPA,
3 R.P.No.586/2023
AGED ABOUT 70 YEARS,
R/O. NO. 54/8, 1ST B CROSS,
MARENAHALLI MAIN ROAD,
VIJAYANAGAR,
BENGALURU - 560 040.
SMT. SARVAMANGALAMMA
D/O LATE H. GANGAPPA,
W/O LATE B. GURUBASAVAIAH,
SINCE DEAD BY HER LRS.,
7 G. SHANTAKUMARI,
W/O G. SHADAKSHARI,,
AGED ABOUT 60 YEARS,
R/AT NO.34, 1ST STREET,
ANJANEYA SWAMY TEMPLE,
SESHADRIPURAM,
BANGALORE-560 003.
8. SRI. G. GURUPRASAD
S/O LATE B. GURUBASAVAIAH,
AGED ABOUT 59 YEARS,
NO.1134, 35TH CROSS,
4TH BLOCK, JAYANAGAR,
BANGALORE-560 041.
9. SRI. G. NIJAGUNAMURTHY
S/O. LATE N. GURUBASAVAIAH,
AGED ABOUT 57 YEARS,
NO.34, GREEN FIELD II,
SINGAPUR GARDEN, GUBBALA GATE,
DODDAKALASANDRA,
BANGALORE - 560 062
10. SRI. DR. G. MANJUNATHA
(GURU BASAVAIAH MANJUNATH)
S/O. LATE B. GURUBASAVAIAH,
AGED ABOUT 55 YEARS,
R/AT NO.2718, 17TH CROSS,
BSK 2ND STAGE,
BANGALORE-560 070.
11. SRI. G. SOMASUNDAR
4 R.P.No.586/2023
S/O. LATE B. GURUBASAVAIAH,
AGED ABOUT 53 YEARS,
R/AT NO.2718, 17TH CROSS,
BSK 2ND STAGE,
BANGALORE-560 070.
12. SRI. G. PRABUSHANKAR
S/O. LATE B. GURUBASAVAIAH,
AGED ABOUT 51 YEARS,
NO. D-29/5, DRDO TOWNSHIP,
PHASE-II, KAGGADASAPURA,
C.V. RAMAN NAGAR POST,
BANGALORE-560 093.
13. SMT. G. NIRMALA
W/O. SHIVKUMAR,
AGED ABOUT 49 YEARS,
R/AT NO.14, YAMUNA BAI ROAD,
MADHAVANAGAR,
BANGALORE-560 001.
14. SMT. NANJAMMA UMAYAL
D/O. LATE H. GANGAPPA,
W/O. H. N. VEERABHADRAN
REPTD. BY GPA HOLDER
SRI.PRASAD BABU
AGED ABOUT 89 YEARS,
R/AT FLAT NO.38/10,
GEETHA APARTMENT, UPPER STREET,
BASANTHINAGAR,
CHENNAI - 600 090.
15. THE SPECIAL LAND ACQUISITION OFFICER
KARNATAKA INDUSTRIAL AREA DEVELOPMENT BOARD
(METRO RAIL PROJECT)
1ST FLOOR, R.P. BUILDING,
NRUPATHUNGA ROAD,
BANGALORE - 560 001.
16. CHIEF MANAGER
BANGALORE METRO RAIL CORPORATION LTD.,
MAHATMA GANDHI ROAD,
SHIVAJINAGAR,
5 R.P.No.586/2023
BENGALURU - 560 001 ... RESPONDENTS
(BY SRI.HARISH B. NARASAPPA, SENIOR ADVOCATE FOR
SRI.AMITH NAYAK, ADVOCATE FOR R1
SRI C.H.JADHAV, SENIOR ADVOCATE FOR
SRI.CHETAN JADHAV, ADVOCATE FOR R2 TO R5
SRI.K.S.SHIVAKUMAR, ADVOCATE FOR R6 TO R13
SRI.K.S.SHANMUKHAPPA, ADVOCATE FOR R14
SRI.P.V.CHANDRASHEKAR, ADVOCATE FOR R15
SRI.N.N.HARISH, ADVOCATE.FOR R16)
THIS REVIEW PETITION IS FILED UNDER ORDER 47 RULE 1 OF
CPC, PRAYING TO REVIEW THE JUDGMENT DATED 12.07.2023
PASSED IN MFA NO.8171/2022 PASSED BY THIS HON'BLE COURT
AND CONSEQUENTLY ALLOW THE APPEAL AS PRAYED FOR AND
ALLOW THIS PETITION WITH COST AND ETC.
THIS REVIEW PETITION HAVING BEEN HEARD AND RESERVED
ON 07.06.2024, COMING ON FOR PRONOUNCEMENT OF ORDER THIS
DAY, K.S.MUDAGAL J., MADE THE FOLLOWING:
ORDER
"Whether the judgment in MFA No.8171/2022 dated
12.07.2023 requires review?" is the question involved in this
petition.
2. MFA No.8171/2022 was filed by the petitioners
assailing the judgment and order in LAC No.30/2022 passed by
the II Addl. City Civil and Sessions Judge, Bengaluru (CCH
No.17). The dispute pertains to land bearing Nos.48/1 and
125/1 of Hebbal village in all measuring 25 guntas. The sale
deed of the said lands dated 29.11.1979 were executed in favour
of respondent No.1. Respondent Nos.1 to 6, Basavaraju,
Shadakshari, Manjunatha and respondent No.14 and one
Maheshwaraiah are the children of Gangappa. Maheshwaraiah
filed O.S.No.499/1995 before the City Civil Court, Bengaluru for
partition claiming that their brother Basavaraj purchased the
said lands in the name of respondent No.1 out of the joint family
funds and therefore they are the joint family properties.
Basavaraj also supported the said version. However, he
contended that there was a family partition on 14.03.1996, in
that partition the said lands were allotted to his share, thereby
they were his absolute properties. Whereas respondent No.1
contended that they were purchased out of his own funds and
they were his self acquired and absolute properties.
3. Petitioner No.1 is the daughter of said Basavaraju.
Petitioner Nos.2 and 3 are her children. Respondent No.6 the
daughter of Gangappa also filed O.S.No.1216/2011 against her
brothers and sisters for partition in which Sy.Nos.48/1 and 125/1
were also the subject matters. Those suits were consolidated
and heard together. By common Judgment dated 20.04.2016,
the said suits were disposed of holding the Sy.No.48/1 and
125/1 were self acquired properties of present respondent No.1.
Against the said judgment and order, the plaintiffs in those suits
have preferred RFA Nos.1239/2016, 1213/2016, 1379/2016 and
769/2022, which are pending before this Court.
4. Pending the aforesaid suits, KIADB acquired
Sy.Nos.48/1 and 125/1. Initially, petitioner No.1 was shown as
the owner of the suit property and consent award was passed in
her favour. Respondent No.1 challenged the same before this
Court in WP No.12988/2021 (LA KIADB). By that time, the
authorities/KIADB had transferred compensation amount to
petitioner No.1 and criminal cases were filed against them. WP
No.12988/2021 was disposed of referring the matter to the Civil
Court for adjudication of the rights of the parties. In the
meantime, the account of petitioner No.1 was freezed. At her
request, the said account was defreezed directing Special Land
Acquisition Officer, KIADB to deposit the balance amount before
the Civil Court. The petitioners were directed to give an
undertaking before the Civil Court that they will redeposit the
amount before the Civil Court, if the present respondent No.1
succeeds in the matter. The said reference was registered in
LAC No.30/2022 on the file of the II Additional City Civil and
Sessions Judge, Bengaluru. Accordingly, the petitioners gave an
undertaking before the reference Court to deposit the entire
amount.
5. The Reference Court on hearing the parties disposed
of LAC No.30/2022, holding that the matter regarding rights of
the parties is subjudice in RFA No.1239/16 and connected
matters and Special Land Acquisition Officer shall redeposit the
balance amount before the Court and petitioner No.1's Bank
shall deposit the amount pending in defreezed account before it.
Further, the Reference Court directed the petitioners to deposit
the Land Acquisition award amount drawn by them with interest
at 9% per annum within two months failing which the said sum
shall carry interest at 15% per annum till the entire amount is
deposited.
6. The said order was challenged in MFA No.8171/2022
before this Court as aforesaid. This Court by judgment dated
12.07.2023, which is sought to be reviewed, dismissed the said
appeal at the admission stage holding that till the rights of the
parties are decided in Regular First Appeal, the proceeds of land
acquisition needs to be protected and no case was made out for
admission and that petitioners did not comply the interim order.
The said order is sought to be reviewed in this petition.
7. Sri S.M. Chandrashekhar, learned Counsel appearing
for the Advocate on record for the petitioners reiterating the
grounds of petition submits that the contesting respondents
suppressed the pendency of MFA No.963/2023 whereunder they
have challenged the same order. Thereby they have played
fraud on the Court. He submits that judgment in
W.P.No.8171/2022 is the result of fraud played on the Court and
that is sufficient ground to review the judgment. Secondly, he
submits that as per Rule 12 of Chapter VI of High Court of
Karnataka Rules, 1959 when more than one appeals are filed
against the same judgment, such appeals shall be posted and
heard together, the same was not done in this case, that may
lead to conflicting judgments and that is an error apparent on
the face of the record. Rest of the arguments in the matter was
regarding the locus-standi of respondent No.1 questioning the
admission of their appeal and the merits of the matter.
8. In support of the submissions, he relies on the
following judgments:
1. G.L.Vijain V. K.Shankar1
2. K.Jayaram V. Bangalore Development Authority2
3. A.V.Papayya Sastry and ors. V. Govt. of A.P. and Ors.3
4. M/s Ramnath Exports Pvt. Ltd. V. Vinita Mehta & Anr.4
5. Union of India V. K.V. Lakshman5
6. Ram Prakash V. Smt.Charan Kaur and Anr.6
7. Premier Tyres Limited V. Kerala State Road Transport
Corporation7
8. Kazi Moinuddin Kazi Bashiroddin & Ors. V. The Maharashtra
Tourism Development Corporation, through its Senior Regional
Manager Regional Office, MTDC, Aurangabad, Maharashtra &
Anr.8
9. Per contra Sri Harish Narasappa and Sri C.H.Jadhav,
learned senior counsel appearing for Advocates on record for
respondent No.1 and 2 to 5 respectively submit that absolutely
there are no grounds to seek review of the judgment in MFA
No.8171/2022. They submit that during the hearing of MFA
8171/2022, in the appeal filed by respondent No.1 the office
AIR 2007 SC 1103
2022(1) KER LT 168
(2007) 4 SCC 221
2022 LiveLaw (SC) 564
AIR 2016 SC 3139
AIR 1997 SC 3760
AIR 1993 SC 1202
2022 LiveLaw (SC) 827
objections were not cured, therefore, that was not even validly
registered. Further during the course of the hearing the said
fact was submitted by the counsel for respondent No.1.
Therefore, the allegation of fraud is unsustainable. Rule 12 of
the High Court of Karnataka Rules, 1959 is being misinterpreted,
absolutely there is no error apparent on the face of the record or
any other ground to review the judgment. They submit that the
petitioners in the guise of review petition are seeking rehearing
of the matter converting this Court to an appellate Court against
its own order which is impermissible.
10. In support of the submissions, he relies on the
following judgments:
i) Shri Ram Sahu (Dead) by LRS and ors vs. Vinod Kumar &
ors9
ii) S.Madhusudhan Reddy vs. V.Narayana Reddy & Ors10
11. The other contesting respondents supported the
submissions made on behalf of respondent Nos.1 to 5.
(2021)13 SCC 1
2022 SCC Online SC 1034
ANALYSIS
12. In this petition, the petitioners are seeking review of
the judgment of this Court in M.F.A.No.8171/2022 (LAC) dated
12.07.2023 dismissing their appeal at admission stage. The
grounds urged for review are that the order is error apparent on
the face of the record and that the respondents played fraud on
the Court suppressing pendency of M.F.A.No.963/2023 filed by
them challenging the very same judgment of the Reference
Court.
13. The power of the Court to review its own order is
governed by Order XLVII Rule 1 of CPC which reads as follows:
"Order XLVII Rule 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."
14. The Hon'ble Supreme Court in the judgment in
Sriram Sahu's case and Madhusudan Reddy's case referred to
supra relying on host of its earlier judgments has summarized
the principles governing the review as follows:
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
CPC. The power of review may be exercised on the discovery of
new 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. An error
apparent on the face of the record for acquiring jurisdiction to
review must be such an error which may strike one on mere
looking at the record and self evident. An error which is not self -
evident and has to be detected by a process of reasoning, can
hardly be said to be an error apparent on the face of the record
justifying the court to exercise its power of review under Order
47 Rule 1 CPC. In exercise of the jurisdiction under Order 47
Rule 1 CPC it is not permissible for an erroneous decision to be
'reheard and corrected'. A review petition, it must be
remembered has a limited purpose and cannot be allowed to be
'an appeal in disguise'. The power of review can be exercised for
correction of a mistake but not to substitute a view. Such an
error should be a patent error and not a mere wrong decision.
The term "mistake or error apparent" by its very connotation
signifies an error which is evident per se from the record of the
case and does not require detailed examination, scrutiny and
elucidation either of the facts or the legal position. To put it
differently an order or decision or judgment cannot be corrected
merely because it is erroneous in law or on the ground that a
different view could have been taken by the court/tribunal on a
point of fact or law. Mere discovery of new or important matter
or evidence is not sufficient ground for review.
15. In the light of the above legal principles, this Court
has to examine whether the judgment in M.F.A.No.8171/2022
needs to be reviewed. In M.F.A.No.8171/2022 the present
review petitioners had questioned the judgment of the Trial
Court in L.A.C.No.30/2022 whereunder the Trial Court in the
reference made under Section 30 and 31(2) of the Land
Acquisition Act to decide entitlement of the rival claimants held
that the rights of the parties are pending for adjudication in
R.F.A.Nos.1239/2016, 1213/2016, 1379/2016 and 799/2022,
therefore till then the award amount has to be preserved.
Considering that the review petitioners had drawn certain
amount on an undertaking before the Court to redeposit the
same if the rival party succeeds, the reference Court directed the
review petitioners to redeposit the amount with interest etc. and
Special Land Acquisition Officer also to deposit the balance
amount till the claims of the parties are decided in the afore
stated Regular First appeals.
16. In M.F.A.No.8171/2022 this Court after hearing the
parties found that the order of the reference Court is only a
process order, the undertaking given by the review petitioners in
W.P.No.12988/2021 and the interim order of this Court were not
complied and the appeal was not fit for admission. Thus
dismissed the same.
17. Relying on Rule 12 of Chapter VI the High Court of
Karnataka Rules, 1959, it was contended that disposal of
M.F.A.No.8171/2022 without connecting the same to
M.F.A.No.963/2023 is an error apparent on the face of the
record. The said Rule reads as follows:
"12. Where several suits or proceedings are heard together
and disposed of by a common judgment by a subordinate
Court, any party filing appeals against the decree or orders
made therein need file only one certified copy of the common
judgment in respect of all such appeals. Unless the Court
otherwise directs, all such appeals shall be posted together
for disposal.
This Rule shall apply mutatis mutandis to Petitions
also."
(Emphasis supplied)
Reading of the above provision shows that the first part of the
same confers benefit on the appellants who have filed multiple
appeals against a common judgment, of producing single
certified copy of the impugned judgment. Therefore that part in
no way advances the case of the petitioners. The second part
clearly states that, if there is no specific direction, all such
appeals shall be posted together for disposal.
18. During the course of hearing of MFA No.8171/2022
when Sri S.M.Chandrashekar, learned senior counsel for the
petitioners contended that the first respondent has suffered a
finding in the impugned order that he has lost his right in the
property due to hostile possession for more than 12 years by
other parties, Sri Harish Narasappa, learned senior counsel did
submit that questioning the said observation first respondent has
preferred an appeal and that case is still at the stage of
complying the scrutiny objections.
19. MFA No.8171/2022 was heard and finally disposed of
on 12.07.2023. Whereas the records in MFA No.963/2023 show
that in the said appeal the defects were cured and the matter
was ready for admission after 12.07.2023. Therefore, as on the
date of the hearing and disposal of MFA No.8171/2022, MFA
No.963/2023 was still not validly filed. As there was no order to
list both the matters together, MFA No.963/2023 was posted
before the Court on 16.08.2023 for admission before the
coordinate bench which then had the roster. Therefore, no fault
can be found with the registry for not listing both matters
together. Therefore, the contention that posting of matters
before different benches is an error apparent on the face of the
record warranting review of the judgment is untenable.
20. So far as the contention that hearing both matters
by separate benches likely to lead to the conflicting judgments,
this Court has already held that the impugned judgment and
order is only a process order as the parties rights have to be
finally decided in RFA Nos.1239/2016 and connected matters.
Further the review petitioners themselves did not insist that the
matters shall be heard together. Therefore, at this length it is
not open to them to claim that not hearing both the matters
together is an error apparent on the face of the record. Even
otherwise, if the judgment rendered in MFA No.8171/2022 has
any bearing on MFA No.963/2023, it is open to the petitioners to
produce the same in MFA No.963/2023 and refer to the same. In
the light of the above discussions, the contention that the
contesting respondents played fraud on the Court also deserves
no merit.
21. Much was argued about the merits of the judgment
sought to be reviewed. The above noted judgments show that
an appeal cannot be reheard in the guise of review petition
converting itself an appellate Court against its own order. The
order under review is not passed merely on the ground of
noncompliance of the interim order but also holding that the
order under challenge in MFA NO.8171/2022 was merely a
process order. Under the circumstances, suffice it to say that
the judgments relied by Sri S.M.Chandrashekar are not
applicable and they do not serve the contentions of the
petitioners. Review petition carries no merit. Hence the
following:
ORDER
Petition is dismissed with costs.
Sd/-
JUDGE
Sd/-
JUDGE
AKC
