Karnataka High Court
D H Krishnasa vs Smt Indira on 20 October, 2016
Author: Aravind Kumar
Bench: Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF OCTOBER, 2016
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
R.P. NO.374/2016
BETWEEN:
D.H. KRISHNASA
AGED ABOUT 78 YEARS
S/O LATE D.H. HANUMANTHA SA
R/AT NO.198, I 'F' CROSS
III STAGE, IV BLOCK
BASAVESHWARA NAGAR
BANGALORE-560 079. ...PETITIONER
(BY SRI.SAMPATH ANAND SHETTY, ADVOCATE)
AND:
1. SMT. INDIRA
AGED ABOUT 76 YEARS
W/O LATE T.S. VISHWANATH
R/AT F-2, G-NEST
III MAIN ROAD
KALYAN NAGAR
NAGARBHAVI ROAD
BANGALORE-560 072.
2. MISS. NALINI
AGED ABOUT 46 YEARS
D/O LATE T.S. VISHWANATH
R/AT F-2, G-NEST
III MAIN ROAD
KALYAN NAGAR
NAGARBHAVI ROAD
BANGALORE-560 072.
2
3. SMT. B.C RENUKA
AGED ABOUT 52 YEARS
D/O SRI. R. CHANNAPPA
17TH MAIN, 4TH BLOCK
4TH STAGE, BASAVESHWARA
NAGAR, BANGALORE-79.
4. SMT. MALINI
AGED ABOUT 41 YEARS
D/O LATE T.S VISHWANATH
R/AT F-2, G-NEST
III MAIN ROAD
KALYAN NAGAR
NAGARBHAVI ROAD
BANGALORE-560 072.
...RESPONDENTS
THIS REVIEW PETITION IS FILED UNDER ORDER 47
RULE 1 OF CPC PRAYING TO REVIEW THE ORDER DATED
20.04.2010 PASSED IN CRP NO.281/2009, ON THE FILE OF
THE HON'BLE HIGH COURT OF KARNATAKA, BENGALURU.
THIS REVIEW PETITION COMING ON FOR ORDERS
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Heard the arguments of Sri. Sampat Anand Shetty, learned counsel appearing for the petitioner. Perused the records.
2. Petitioner who was respondent in Civil Revision Petition No.281/2009 is seeking for review of 3 order dated 20.04.2010 whereunder this Court after hearing the learned Advocates appearing for parties and on perusal of records allowed the revision petition by setting aside the order dated 20.08.2009 and had allowed I.A.No.2 filed by revision petitioner under Order 7 Rule 1 (a) & (d) of CPC.
3. It is the contention of Sri. Sampat Anand Shetty, learned counsel appearing for petitioner that trial Court itself had to adjudicate the matter on merits and as such, it had opined that at the threshold plaint cannot be rejected. He submits, this Court while allowing the revision petition filed against the said order had compared and examined the plaints of both the suits and arrived at a conclusion that the subsequent suit (i.e., in question) is without any cause of action and as such, allowed the application filed by the defendant under Order 7 Rule 11 CPC, which was not the scope of the power available to this Court under Section 115 of CPC and as such, there being an error apparent on the 4 face of record, he seeks for review of order dated 20.04.2010 and prays for allowing the review petition.
4. An error which is not self evident and has to be detected during the process of reasoning, can hardly be said to be error apparent on the face of record, justifying the Court to exercise the power of review. A review is by no means an appeal in disguise whereby erroneous decision is reheard and corrected and review lies only for patent error, as held by the Hon'ble Apex Court in catena of judgments and to quote a few it would suffice namely in the case of PARSION DEVI & ORS vs SUMITRI DEVI & ORS reported in (1997) 8 SCC 715 and ARIBAM TULESHWAR SHARMA vs ARIBAM PISHAK SHARMA AND ORS. reported in (1979) 4 SCC 389.
5. The power of review can be exercised for correction of mistake but not to substitute the view already taken. Applicant / petitioner will have to establish or satisfy the ingredients of Rule 1 of Order 47 5 CPC is present when such prayer is sought. The contours of review came to be examined by the Hon'ble Apex Court and same has been explained in KAMLESH VERMA Vs. MAYAWATI, reported in (2013) 8 SCC 320 and it reads as under:
"20.1 When the review will be maintainable:
(i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him;
(ii) Mistake or error apparent on the face of record;
(iii) Any other sufficient reason.
The words "any other sufficient reason" have been interpreted in Chhajju Ram v. Neki and approved by this Court in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius to mean "a reason sufficient on grounds at least analogous to those specified in the rule". The same principles have been reiterated in Union of India v. Sandur Manganese & Iron Ores Ltd.
20.2 When the review will not be maintainable:
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(i) A repetition of old and overruled argument is not enough to reopen concluded adjudications.
(ii) Minor mistakes of inconsequential import.
(iii) Review proceedings cannot be equated with the original hearing of the case.
(iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice.
(v) A review is by no means an appeal in
disguise whereby an erroneous
decision is reheard and corrected but lies only for patent error.
(vi) The mere possibility of two views on the subject cannot be a ground for review.
(vii) The error apparent on the face of the record should not be an error which has to be fished our and searched.
(viii) The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition.
(ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived."7
6. Keeping the above contours which are illustrative in nature though not exhaustive, in mind and the facts on hand are examined it would clearly indicate that after having examined the contention raised by revision petitioner with regard to there being no cause of action for the suit and by holistic reading of plaint, it was held that suit was expressly barred by law. This Court had arrived at such conclusion, keeping in mind the authoritative pronouncement of the Apex Court in the case of T. ARIVANDANDAM vs T. V. SATYAPAL & ANOTHER reported in AIR 1977 SC 2421. It came to be held that suit was expressly barred by limitation and there was no cause of action for the suit. On account of defendant having established that ingredients of Clause (a) and (d) of Rule 11 of Order 7 CPC, this Court came to a conclusion that the application was required to be allowed and as such, it came to be allowed. There is no error apparent on the face of record and there is no other justifiable ground 8 available to this Court for reviewing the order dated 20.04.2010.
7. Yet another factor which cannot go unnoticed, is the fact, that order passed by this Court on 20.04.2010 dismissing the revision petition had been carried to the Apex Court by the review petitioner in Special Leave Petition No.24066/2010 and the Apex Court by order dated 09.02.2016 had dismissed the said Special Leave Petition.
8. For the reasons aforestated, I do not find any good ground to entertain this review petition. Hence, I proceed to pass the following:
ORDER
(i) Review petition is dismissed.
(ii) Order dated 20.04.2010 passed in CRP No.281/2009 is hereby affirmed.
SD/-
JUDGE DR