Karnataka High Court
A Rajendra Kodgi vs A Sudir Kodgi on 10 June, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2024:KHC:20097
RP No. 70 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REVIEW PETITION NO. 70 OF 2024
IN
MFA NO.6172/2021 (CPC)
BETWEEN:
1. A.RAJENDRA KODGI
AGED ABOUT 52 YEARS
S/O LATE A. CHANDRASHEKAR KODGI
RESIDING AT FLAT NO.602
"KODGI, SAI SADAN"
POST KUNJIBETTU, INDRALI,
UDUPI TALUK AND DISTRICT-576 102
AND ALSO RESIDING AT
A. RAJENDRA KODGI VILLA NO.84
SAI RADHA GREEN VALLY,
MANIPAL PERAMPALLI ROAD,
UDUPI TALUK AND DISTRICT-576 102.
Digitally signed 2. DR. RESHMA K.
by DEVIKA M
Location: HIGH
AGED ABOUT 40 YEARS
COURT OF W/O. A. RAJENDRA KODGI
KARNATAKA RESIDENT AT VILLA NO.84
SAI RADHA GREEN VALLEY
MANIPAL PERAMPALLI ROAD
UDUPI TALUK AND
DISTRICT-576 102.
REPRSENTED BY GPA HOLDER
A.RAJENDRA KODGI
...PETITIONERS
(BY SRI RAJENDRA KODGI, PETITIONER NO.1
[PARTY-IN-PERSON])
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NC: 2024:KHC:20097
RP No. 70 of 2024
AND:
1. A. SUDIR KODGI
AGED ABOUT 48 YEARS
S/O. LATE A. CHANDRA SHEKAR KODGI
RESIDING AT "GURU KRIPA"
HAYAGREEVA NAGAR, INDRALI
POST KUNJIBETTU
UDUPI TALUK AND DISTRICT
PIN CODE-576 102.
2. A. NANDAGOPAL KODGI
AGED ABOUT 50 YEARS
S/O. LATE A. CHANDRA SHEKAR KODGI
RESIDING AT "GURU KRIPA"
HAYAGREEVA NAGAR, INDRALI
POST KUNJIBETTU
UDUPI TALUK AND DISTRICT
PIN CODE-576 102
3. GOPAL KRISHNA BHAT
DIRECTOR TRISHA VIDHYA
COLLEGE OF COMMERCE
AND MANAGEMENT
VASUKI TOWERS
MISSION HOSPITAL ROAD
UDUPI TALUK AND DISTRICT
PIN CODE-576 102.
...RESPONDENTS
THIS REVIEW PETITION IS FILED UNDER SECTION 114
R/W. ORDER XLVII RULE 1 OF THE CPC, 1908 AS AMENDED,
PRAYING THIS COURT TO CALL FOR RECORDS RELATING TO
THE CASE MFA NO.6172/2021(CPC), GRANT A REVIEW OF THE
ORDER DATED 20TH JANUARY 2024 PASSED BY THIS COURT IN
MFA NO.6172/2021(CPC) AND ALLOW THE APPEAL FILED BY
THE REVIEW PETITIONERS AND GRANT THE REVIEW
PETITIONERS SUCH OTHER AND FURTHER RELIEF DEEMS FIT
UNDER CIRCUMSTANCES OF THE CASE.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
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RP No. 70 of 2024
ORDER
Heard the review petitioner No.1 appearing in
person.
2. This review petition is filed against the order
passed in M.F.A.No.6172/2021 and grounds urged in the
review petition to review the order that order suffers
apparent on the face of the record in affirming the order of
temporary injunction passed by the Trial Court in as much
as this Court did not take into consideration of aforesaid
interim order passed by the this Court dated 23.12.2021.
In that view of the matter it is respectfully submitted that
the order of this Court dated 20.01.2024 suffers error
apparent on the face of the record. Therefore, the said
order deserves to be reviewed. The other ground urged in
the review petition is that in the absence of the very
existence of joint family as sought to be pleaded by the
plaintiff, there is absolutely no scope for an interference
that the plaint schedule properties were inherited through
the ancestors, when the very documents of title produced
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in the plaint relating to the suit schedule properties do not
in any way suggest so. The existence of joint family and
its nucleus must be pleaded in clear terms and the plaint is
very much silent on that aspect of the matter and
admittedly not even genealogical tree had been appended
to the plaint. The ground raised in paragraph No.5 of the
review petition is with regard to the joint acquisition of
the properties.
3. This Court while passing the order in
M.F.A.No.6172/2021 taken note of contentions of the
counsel for respective parties and also formulated the
point whether the Trial Court has committed an error in
allowing I.A.No.II granting an order of temporary
injunction and this Court after analyzing the material
available on record, comes to the conclusion that the Trial
Court while allowing the application passed the detailed
order in paragraph No.11, 12 and 16 with regard to the
scope of application filed under Order 39 Rule 1 and 2 of
CPC and with regard the scope of appellate jurisdiction and
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also having considered the material available on record,
taken note of judgment which have been quoted by the
counsel, particularly the landmark judgment of
Gowrishankara Swamigalu V/s Sri.Siddhaganga Mutt
case reported in ILR 1989 KAR 1701 and within the
ambit of scope of appellate Court also, considered the
matter on record and also comes to the conclusion that
whether the properties have been purchased and whether
the properties are amenable partition and the same is a
matte of trial. There is no dispute with regard to the
purchasing of item Nos.1, 2, 4 and 6 jointly in between
and whether the properties are joint family properties or
self acquired properties or properties are individual
properties and all the issues have to be adjudged before
the Trial Court. Hence, comes to the conclusion that Trial
Court has not committed any error in considering the
prima facie case granting the relief. When such being the
order passed by this Court and the grounds urged in the
review petition also is with regard to granting of interim
order before this Court at the earliest point of time and
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also grounds with regard to the absence of very existence
of joint family and purchase is made out of joint family
nucleus requires trial. All these grounds are urged in the
review petition. The review petition can be entertained
only if any error apparent on record and then only review
jurisdiction has to be exercised and no such grounds are
urged before this Court and the grounds which have been
urged before this Court is nothing but assailing the order
of this Court on merits when the order has been passed.
Hence, remedy is elsewhere, not before this Court by
exercising the review jurisdiction. Hence, I do not find any
grounds to review the order.
4. In view of the discussions made above, I pass
the following:
ORDER
The Review Petition is dismissed.
Sd/-
JUDGE
RHS
