Karnataka High Court

M K Veerakyathappa vs Malappa on 19 June, 2025

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                                                  NC: 2025:KHC:21283
                                                  RP No. 398 of 2017


           HC-KAR




               IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                    DATED THIS THE 19TH DAY OF JUNE, 2025

                                   BEFORE
               THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
                      REVIEW PETITION NO. 398 OF 2017
                                     IN
                             RSA NO.826 OF 2010
          BETWEEN:

          M K VEERAKYATHAPPA,
          S/O KYATHAPPA,
          AGED ABOUT 58 YEARS,
          AGRICULTURIST,
          RESIDENT OF MUDDENAHALLI,
          GOWDAGERE HOBLI, SIRA TALUK,
          TUMKUR DISTRICT-572137.
                                                       ...PETITIONER
          (BY SRI A V GANGADHARAPPA, ADVOCATE)
          AND:

          1.    MALAPPA,
Digitally       S/O CHIKKAKARIYAPPA,
signed by C     AGED ABOUT 72 YEARS,
HONNUR SAB      RESIDENT OF MUDDENAHALLI GOLLARAHATTI
Location:       GOWDAGERE HOBLI, SIRA TALUK,
HIGH COURT      TUMKUR DISTRICT-572137.
OF
KARNATAKA 2.    SMT VADDAGIRIYAMMA,
                W/O HORAKERAPPA,
                & D/O PUJARI SIDDARAMAIAH,
                AGED ABOUT 63 YEARS,
                RESIDENT OF KASAVANAHALLI,
                RANGANATHAPUR HOBLI,
                HIRIYUR TALUK,
                CHITRADURGA DISTRICT-572143.
                SINCE DEAD BY HER LRS
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                                        NC: 2025:KHC:21283
                                       RP No. 398 of 2017


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3.   GURU,
     S/O LATE RANGANATHA,
     GRANDSON OF LATE VADDAGIRIYAMMA,
     AGED ABOUT 30 YEARS,

4.   SMT SUMITHRA,
     W/O HANUMANTHARAYA,
     D/O LATE VADDAGIRIYAMMA,
     AGED ABOUT 50 YEARS
     BOTH ARE RESIDING AT KASAVANAHALLI,
     KASABA HOBLI, HIRIYURU TALUK,
     CHITRADURGA DISTRICT - 572143.
                                           ...RESPONDENTS
(BY SRI. SUYOG HERELE E.,ADVOCATE FOR R1
 V/O/DT 18.03.2025, PROPOSED R3 & R4 ARE THE LRS OF R2,
 R3 IS SERVED,
 V/O/DT 18.03.2025, NOTICE TO R4 IS H/S, R4 IS SERVED)

     THIS REVIEW PETITION IS FILED UNDER ORDER 47 RULE
1 OF CPC, PRAYING THIS HON'BLE COURT TO ALLOW THIS
REVIEW PETITION, REVIEW THE JUDGMENT AND DECREE
DATED 04.10.2010 PASSED IN R.S.A NO.826/2010 AND BE
PLEASED TO DISMISS RSA NO.826/2010, WITH COSTS
THROUGHOUT, IN THE INTEREST OF JUSTICE AND EQUITY.

    THIS PETITION, COMING ON FOR ADMISSION THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:


CORAM:     HON'BLE MR JUSTICE ANANT RAMANATH HEGDE


                      ORAL ORDER

Review Petition No.324/2017 was filed to review the

judgment and decree dated 04.10.2010 in R.S.A.

No.826/2010. Said petition was dismissed on 22.08.2017.

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I.A. No.1/2025 to condone the delay of 2815 days to recall

the order dated 22.08.2017 and I.A. No.2/2025 to recall

the order dated 22.08.2017 are filed.

2. Review Petition No.398/2017 is filed to review

the judgment and decree dated 04.10.2010 in R.S.A.

No.826/2010. There is a delay of 2493 days in filing the

review petition. Keeping open the point of limitation, the

notice was issued and the matter is now posted for

admission.

3. This Court while rejecting the review petition

No.324/2017 has assigned two reasons viz., (a) the

counsel who appeared in RSA No.826/2010 has not filed

the review petition and the review petition is filed by

different Advocate. (b) the Special Leave Petition filed

against the judgment and decree in RSA No.826/2010 is

confirmed by dismissing the Special Leave Petition

No.4269/2015.

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4. Learned counsel appearing for the petitioner in

both the petitions would submit that the Advocate who

had appeared on behalf of review petitioner (respondent in

RSA No.826/2010) is not in a position to attend the Court

on account of illness. Thus, he would submit that the

review petition filed by the petitioner through a different

Advocate has to be heard on merit. To cure the defect, it

is submitted that review petition No.398/2017 is filed by

the Advocate who has appeared for the respondent in RSA

No.826/2010. Thus, it is urged that the delay in filing the

review petition No.398/2017 be condoned as review

petition was not filed because of the filing of the review

petition No.324/2017.

5. It is noticed that review petition No.324/2017 is

filed on 13.07.2017. It is stated that there is a delay in

filing the review petition No.324/2017 as the petitioner

was pursuing his remedy before the Supreme Court by

filing Special Leave Petition.

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6. It is noticed that Special Leave Petition No.

No.4269/2015 challenging the judgment and decree dated

04.10.2010 in RSA No.826/2010 is filed in the year 2015

and same is dismissed vide order dated 13.03.2015.

Despite there was a delay of 1135 days in filing the

Special Leave Petition and also 353 days in refiling the

Special Leave Petition for which, there was no satisfactory

explanation offered as per the order passed by the Apex

Court, the Apex Court has considered the grounds urged in

the Special Leave Petition and leave is not granted and

accordingly, the Special Leave Petition No.4269/2015 is

rejected.

7. When the review petition No.324/2017 came up

for consideration before this Court, the Registry raised

objection relating to maintainability of the petition on the

premise that the Advocate who was appeared on behalf of

review petitioner/respondent in RSA No.826/2010 has not

filed review petition. The Court has accepted the said

office objection and held that the review petition is not

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maintainable. In addition to that, the review petition is

also dismissed, as already noticed, on the premise that the

review petition urging the same grounds, urged in Special

Leave Petition.

8. Learned counsel appearing for the petitioner

would contend that the review petition No.398/2017 is

filed by the Advocate who appeared for the review

petitioner (respondent in RSA No.826/2010) since he could

not pursue the matter on account of his ill health, the

application filed by the present Advocate seeking leave of

the Court to prosecute the review petition and the leave is

granted in terms of the order dated 18.03.2025. Thus,

the learned counsel appearing for the petitioner would

contend that the review petition has to be heard on merit

as the review petition is not heard on merit on earlier

occasion. It is his further submission that the order

passed by the learned predecessor of this Court in review

petition No.324/2017 rejecting the review petition on the

ground that the grounds urged in the Special Leave

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Petition cannot be entertained is erroneous and he would

refer to the judgment of the Hon'ble Apex Court in the

case of Kunhayammed & Others vs. State of Kerala &

Another1.

9. Learned counsel appearing for the respondents

on the other hand would submit that the review petition is

rejected on merits on the premise that Special Leave

Petition is rejected and even if it is assumed to be an

erroneous finding, in the light of the law laid down by the

Hon'ble Apex Court in the case of Kunhayammed, supra,

in view of the bar contained under Order XLVII Rule 9 of

the Code of Civil Procedure, the review petition filed by the

petitioner and application to recall earlier order in review

petition No.324/2017 not maintainable.

10. This Court has considered the contentions

raised at the bar and perused the records.

(2000) 6 SCC 359

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11. The review petition No.324/2017 is rejected on

two grounds; (a) the counsel who has appeared for the

review petition in the RSA No.826/2010 has not filed

review petition. In addition to that, learned predecessor of

this Court has also assigned the following reason:-

"3. Further, in the instant case, before filing the review petition, the petitioner herein had filed Special Leave Petition numbered as SLP(C) No.008761/2015 before the Hon'ble Supreme Court against the judgment now sought to be reviewed. It is seen that the said SLP is dismissed by the Hon'ble Supreme Court by its order dated 13.03.2015. Thereafter as and by way of afterthought, this review petition is filed re-agitating the grounds, which were raised in the said SLP."

Order XLVII Rule 9 of Code of Civil Procedure reads

as under:-

"ORDER XLVII - Review

xxxx

xxxx

"9. Bar of certain applications.- No application to review an order made on an

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application for a review or a decree or order passed or made on a review shall be entertained."

12. Though the learned counsel for the petitioner

would urge that the doctrine of merger does not apply

when the Special Leave Petition is rejected, what is

required to be noticed is even if the review petition is

rejected on the erroneous interpretation of dismissal of

Special Leave Petition in case, the application is allowed or

even if paragraph 3 extracted above is recalled as sought

by the learned counsel for the petitioner, same amounts to

reviewing the order dated 22.08.2017. Such an exercise

is impermissible in view of the bar contained under Order

XLVII Rule 9 of the Code of Civil Procedure.

13. Though it is urged that the judgment and