Shankarappa vs The Deputy Chief Engineer on 28 March, 2019

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Karnataka High Court

Shankarappa vs The Deputy Chief Engineer on 28 March, 2019

Bench: G.Narendar

R

IN THE HIGH COURT OF KARNATAKA

DHARWAD BENCH
DATED THIS THE 28T™ DAY OF MARCH, 2019 - |
BEFORE | a
THE HON'BLE MR. JUSTICE G.NARENDAR 7

LA.NO.1/2019
IN OS
REVIEW PETITION NO. 9.100083 OF 20 16(LAC)

BETWEEN:

1. SHANKARAPPA VIRUPAKSHHAP2A ASU NDI .

2. BASAVARAJ VIRUPAKSHAPPA 'ASUNDI
(BOTH SONS OF VIRUPAKSHAPPA ASUNDI :
BOTH MAJORS AND AGRICULTURISTS .
BOTH RESIDING AT BIDNAL VILLAGE
HUBBALLI "TALURA))"
.. PETITIONERS
(SRI. SANTOSH dD. NAR GUND, ADVOCATE

AND:

|. THE DEPUTY CHIZF ENGINEER (CONSTRUCTION)
SOUTH WESTERN RAILWAY ZONE,
.CLUB ROAD. HUBBALLI-580020.

2. THE. SPECIAL LAND ) ACQUISITION OFFICER
"HUBLI ANKOLA BROAD GUAGE,
" RAILWAY, -ANKOLA.
. RESPONDENTS
(BY SRI. M B KANAVI, ADVOCATE FOR R1; R2 - SERVED))

THIS APPLICATION IS FILED UNDER SECTION 65 OF THE
. KAPNATAKA COURT FEES AND SUIT VALUATION ACT R/W.

. _SECTION 151 OF CPC PRAYING FOR REFUND OF COURT FEE OF

RS.41,142.5/- IN THE INTEREST OF JUSTICE AND EQUITY.

THIS APPLICATION COMING ON FOR ORDERS THIS DAY,

THE COURT MADE THE FOLLOWING:


ORDER

Heard the learned counsel for the applicant and the respondent.

2. The appeal registered as MFA No.12108 /201 7

came to be allowed in Part by the. Judgment dated 17.06.2016. After the same was' "allowed, the petitioner preferred the Review' Petition on "21.07.2016. claiming that, in respect of similarly o lands, the Apex Court had reversed the order of che High Court rendered by the Division Bench. in. 'MPA No. 1619/2007 and restored the award passed by "the: Reference Court, thereby the compensation of of Rs. 5,10, 900/- awarded by the Division ; Bench in MFA Ne. 1619/ 2007 came to be set aside and the : . compen sation awarded by the Reference Court was upheld. oe This Court while disposing of MFA "No. 12408/2007 has placed reliance on the judgment of . "the: Division Bench rendered in MFA No.1619/2007.

While hearing and disposing of the MFA, the order of the | Apex Court was not placed before this Court. It was the \ bounden duty of the appellant to have brought to the notice of this Court, the order passed by the Apex Court in Civil Appeal Nos.2881-2910 of 2010, dated 19.11.2015.

3. Today an application: is. made seeking for refund of the Court fee by placing reliance on the provision of Section 65 of the Karnataka Court- Fee and Suits Valuation Act, 1958 (hereinafter referred. to as 'the Act', for short) and it is contended that, in the light of Section 65 of the. Act and. in view of the reversal of the order and allowing 'of the Review Petition, the appellant is entitled for refund of 'the Court fee. Section 65 of the Act reads as under: -

"65. Refund where Court reverses or modifies former decision cn ground of mistake.

_ - Where an application for a review of judgment is ~ admitted on the ground of some mistake or error 7 . apparent on the face of the record, and on the rehearing the court reverses or modifies its former

- decision on that ground, it shall direct the refund to the applicant of so much of the fee paid on the application as exceeds the fee payable on any other application to such court under Article 11 (g) and (t) of Schedule II."

4. Admittedly, the Review Petition was allowed in view of the order that had been passed by the Apex. Court much prior to the Judgment disposing of "MPA No.12108/2007. Hence the reliance of this | Court on. the he :

judgment of the Division Bench while disposing of the MFA is not erroneous. But taking i into conside ration the orders of 7 the Apex Court the Review Petition was al allowed and 'not on account of any error apparent'on tte face of the record or on account of any mistake in the judgment: *

5. The learned counse! - for "the applicant also places reliance or: the rang. of the High Court of Kerala reported in "AIR 2005 KERALA 49 in the case of Joy Varghese' Vs. Siate sof Kerala. The Court has placed a reliance of Section 68 of the Kerala Court-fees and Suits os Valuation A Act.. In the instant case, Section 65 permits such refund if the reversal is on account of any mistake in the 7 order. or error apparent on the face of the records.

6. As stated supra, the reversal of the order or the judgment is not on account of any error on the face of the records, rather it was on account of a error committed by the fh LN \ \ / appellant. despite which this Court has condoned the error and has reversed the judgment. keeping in view the aspect of binding precedents and also the fact that the that. the.

appellant is a land-loser and to meet the ends of juste it -

was incumbent upon the appellant to have brought 'pofore - the Court the ruling of the Apex © Court which admit vealy Wi a much prior to the disposal ¢ of the MF. A. The apoetiant having indolent, the appellant cannot "stake claim for refund by placing reliance of Section: 65 of the 4 Act. | "The reliance on Section 65 of thie Act is i misplaced. 'The party who has been negligent cannot be: permitted to take advantage and gain on account of his negligence. a 7 The appellant having failed to assist the Court and't has ving wasted precious judicial time of the Court is not . entitied for "the refund, Hence the instant application is "tnisconceived and the application is liable to be rejected and . is accordingly rejected.

Sdi-

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