Karnataka High Court
Sri Kushal Kumar vs Smt Dhanalakshmi on 17 January, 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF JANUARY, 2020
BEFORE
THE HON'BLE MR. JUSTICE N.K. SUDHINDRARAO
REVIEW PETITION No.51/2018
IN
R.F.A.No.210/2009
BETWEEN:
1 . SRI KUSHAL KUMAR
S/O LATE RAMANJANEYA
AGED ABOUT 25 YEARS.
2 . MASTER/SRI KARTHIK
S/O LATE RAMANJANEYA
AGED ABOUT 23 YEARS,
3 . MS. KAVYA
D/O LATE RAMANJANEYA
AGED ABOUT 19 YEARS.
ALL ARE R/AT MAHADEVAPURA
K.R.PURAM HOBLI
BENGALURU SOUTH TALUK
BENGALURU.
ALL ARE PRESENTLY RESIDING AT
BASAVESHWARA NILAYA,
BRAHMAKUMARI ROAD,
M.V.EXTENSION, HOSKOTE TOWN,
BENGALURU RURAL DISTRICT - 562 114.
..PETITIONERS
(BY SRI VIJAYA KRISHNA BHAT M, ADVOCATE)
2
AND:
1 . SMT. DHANALAKSHMI
AGED ABOUT 43 YEARS
D/O LATE P.MUNINARAYANAPPA,
W/O M.CHANDRASHEKAR,
R/AT No.78/28, 8TH CROSS RIGHT SIDE,
SHANKARAPPA GARDEN,
MAGADI ROAD,
BENGALURU-560 023.
2 . SMT. MUNITHAYAMMA
AGED ABOUT 74 YEARS
W/O LATE MUNINARAYANAPPA,
R/AT MAHADEVAPURA,
K.R.PURAM HOBLI,
BENGALURU SOUTH TALUK,
BENGALURU - 560 048.
3 . SMT. BHARATHI
AGED ABOUT 44 YEARS,
W/O LATE RAMANJANEYA
R/AT MAHADEVAPURA,
K.R.PURAM HOBLI,
BENGALURU SOUTH TALUK,
BENGALURU - 560 048.
PRESENTLY R/AT
BASAVESHWARA NILAYA,
BRAHMAKUMARI ROAD,
M.V. EXTENSION, HOSKOTE TOWN,
BENGALURU RURAL
DISTRICT - 562 114.
..RESPONDENTS
(BY SRI M S VARADARAJAN, ADVOCATE FOR R-1
SRI MUNIRAJU, ADVOCATE FOR R-2
R-3 SERVED)
3
THIS REVIEW PETITION IS FILED UNDER ORDER 47
RULE 1 R/W SECTION 114 OF CPC, PRAYING TO REVIEW
THE ORDER DATED 13.09.2011 PASSED IN RFA
No.210/2009, ON THE FILE OF THE HON'BLE HIGH COURT
OF KARNATAKA, BANGALORE.
THIS REVIEW PETITION COMING ON FOR ORDERS
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The review petition is directed against the judgment and decree dated 13.9.2011 passed in Regular First Appeal No.210/2009 by this Court, wherein, the appeal preferred by Smt. Bharathi and three others came to be dismissed.
2. In order to avoid confusion and overlapping, the parties herein are referred in accordance with their rankings as held by them before the trial court.
3. The background of the regular first appeal is, one Dhanalakshmi and Ramanjaneya are the children of one P. Muninarayanappa. One Munithayamma is the wife of the said P. 4 Muninarayanappa. The land in survey No.159 to the extent of 2 acres 30.3 guntas together with the residential house bearing K.S.No.4 thereon and with various kinds of fruit bearing trees and residential house property partly of Mangalore tile roof and partly stone roof bearing No.74, K.S.No.64 measuring 20 x 22 feet both situated at Mahadevpura village, K.R. Puram Hobli, Bangalore South Taluk, belonged to the said P. Muninarayanappa, father of Dhanalakshmi and Ramanjaneya.
4. The said property was allotted to P. Muninarayanappa under the partition that was entered into through compromise in O.S.NO.7150/1998 on 2.11.1998.
5. Both the learned counsel would submit that there is no dispute regarding the nature of the properties as it is the self acquired property of P. 5 Muninarayanappa. P. Muninarayanappa died on 21.12.2001 leaving behind his wife- Munithayamma, Ramanjaneya-son and Dhanalakshmi-daughter. In the course of further time, Ramanjaneya also died. Regard being had to the fact that the date of death is not within the knowledge of the parties.
6. Suit was filed by Dhanalakshmi, daughter of late P. Muninarayanappa in O.S.NO.4522/2003, the matter came to be decreed on 20.12.2008 in part and plaintiff was held entitled for 1/3rd share in the item Nos. 1 and 2 of the schedule property.
7. The defendants in the said case are the mother of the plaintiff-Munithayamma, w/o. P. Muninarayanappa and branch of Ramanjaneya namely, Bharathi wife of Ramanjaneya, Master Kushal Kumar, Karthik and Kavya, his children. 6
8. The reasonings for allowing the claim of the plaintiff and granting 1/3rd share is that, the suit schedule items are two in number belonged to P. Muninarayanappa during his life time and upon his death devolved upon class I heirs consisting of his widow-Munithayamma, son-Ramanajenaya and daughter- Dhanalakshmi in accordance with Section 8 of the Hindu Succession Act, 1956 read with Schedule 1 with reference to Class I legal heirs, as the parties have no dispute regarding the nature of property being that of self acquired property of P. Muninarayanappa.
9. The defendants in O.S.NO.4522/2003 sans Munithayamma wife of P. Muninarayanappa filed appeal in RFA No.210/2009. Regard being had to the fact that as Munithayamma wife of P. 7 Muninarayanappa did not join the defendants in filing the appeal, she is shown as the respondent No.2. This court dismissed the said RFA No. 210/2009 on 13.9.2011.
10. The aggrieved defendants preferred Special Leave to Appeal (Civil) in No.31939/2011 before the Hon'ble Supreme Court of India against the judgment and decree passed by this court in RFA No.210/2009. The Supreme Court of India dismissed the said Special Leave to Appeal on 5.12.2011.
11. The matter attained finality in the said process. Thus, the share of parties i.e. Munithayamma and from the branch of Ramanjaneya consisting of his wife and three children and Dhanalakshmi are confirmed at 1/3rd share each.
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12. It is in this connection, the appellants who are the defendants No. 3 to 5 in OS No.4522/2003 filed the present review petition under order 47 Rule 1 CPC read with Section 114 of CPC on 24.2.2018.
13. Learned counsel Sri. Vijaya Krishna Bhat, appearing for the petitioners (for brevity and convenience called as 'defendants') submits that the present review petition is being filed as a classic example of review on the ground that the material evidence that could have decided the dispute in O.S.No.7150/1998 was not within the knowledge and notice of the defendants being children of Ramanjaneya.
14. Learned counsel would submit that P.Muninarayanappa, during his life time executed a registered will on 17.5.1999 bequeathing the item 9 No.1 of the suit schedule property in favour of children of Ramanjaneya.
15. The rights under this will was neither pleaded nor produced any defence nor brought to the notice of learned trial Judge in OS No.7150/1998 or in OS No.4522/2003 or before this court as Appelalte Court in RFA No.210/2009.
16. Learned counsel would further submit that the said children of Ramanjaneya, namely, Master Kushal Kumar, Master Karthik and Ms.Kavya were intimated by learned advocate Sri. R. Lakshman Raju in his intimation letter dated 19.12.2016 as per Annexure-A to the effect that there is a Will dated 17.5.1999 stated to have been executed by P. Muninarayanappa in favour of the children of Ramanjaneya viz., petitioners herein in respect of the land in survey 10 No.159 to the extent of 2 acres 30 guntas out of 3 acres 37 guntas. Mr.Hallappa who is the senior counsel of Sri R. Lakshman Raju was entrusted with the said documents.
17. In the further circumstances, the said Mr. Hallappa died and when his junior colleague Mr. R. Lakshman Raju was verifying the papers for sorting out he discovered the Will which was in favour of defendants/petitioners by Muninarayanappa. Thus, there is availability of the registered Will stated to have been executed by Muninarayanappa in favour of defendants/petitioners. Sri. R. Lakshman Raju informed the defendants that first item of property is bequeathed. The said communication is dated 19.12.2016.
18. Learned counsel Mr.Vijaya Krishna Bhat would submit that defendants came to know for the first 11 time that their grand father Muninarayanappa has bequeathed the schedule item No.1 i.e. land in survey No.159 katha No.30 to the extent of 2 acres 30 guntas in their favour and the said Will being the last one of Muninarayanappa became enforceable on the date of death of said Muninarayanappa on 21.12.2001.
19. Meanwhile, against the dismissal of RFA No.210/2009, the Special Leave to Appeal preferred before the Hon'ble Supreme Court of India came to be dismissed on 5.12.2011. It is in this connection, the present review petition is filed on 24.2.2018. In this connection, the following dates are important:
Date of dismissal of SLP : 05.12.2011 Intimation received by the :19.12.2016 defendants from the Advocate Present review petition filed on :24.02.2018 12
20. It is under these circumstances, the learned counsel for defendants Mr. Vijaya Krishna Bhat submits that absolute and bonafide lack of knowledge over the state of affairs in respect of the Will the defendants were prevented by absolute and justifiable reasons when they were not in knew of the said notice. However, even after getting the intimation on 19.12.2016, the review petition is filed on 24.2.2018 after a gap of one year 1 and half months. It is in this connection, an application is filed under Section 5 of the Limitation Act, seeking condonation of the delay of 2326 days in preferring the review petition.
21. The reasons stated in the accompanying affidavit for cause of delay are as under:
"6. I submit that subsequently during last week of December 2016, we received a letter dated 19.12.2016 from an Advocate by name R. Lakshman Raj stating that Sri. Muninarayanappa had executed a registered 13 Will dated 17.6.1999 with the advice and assistance of his senior namely, U. Halappa and the Will has been kept with the senior in the safe custody. The letter further stated that on the death of the Advocate Halappa, when his office was being vacated he came across the registered Will kept in safe custody. Hence, it was requested in the letter that we the petitioners who are the legatees in the Will should contact him along with proper identity and collect the Will. Accordingly, we went and collected the Will from Advocate R. Lakshman Raj. On going through the Will we were surprised and shocked to know that during lifetime of Muninarayanappa, he had executed a Will bequeathing the suit schedule property in our favour. This fact we were not all aware during the pendency of the case and at that point of time we were also minors. Even our mother was not aware of the execution of the Will and it appears that late Muninarayanappa did not disclose the execution of the Will by him to the family members and must have though that on his death, his Advocate will inform the family members regarding execution of the Will.
7. After securing the original Will, we were not aware as to how to take further steps in the matter to obtain our legitimate right in the property. We were advised by some of the local elders that we can transfer the property as there is a registered Will and the 1st respondent herein has no right on the same. Believing this we executed a Deed of 14 Exchange with one N. Reddappa Reddy and transferred the suit schedule property to him. I further submit that thereafter the 1st respondent issued a legal notice dated 27.10.2017 to the said Reddappa Reddy stating that the Exchange Deed entered into by him is legal in as much as the 1st respondent has a decree for partition in our favour and the final decree proceedings are pending. On receipt of the said legal notice out vendee contacted us and subsequently we decided to take legal advise in the matter. On such obtaining of legal advise, we were appraised that we have to seek for review of the judgment passed in RFA No.210/2009 by producing the original Will as additional document in the matter and that the whole claim of the 1st respondent has to be reconsider in the light of the Will executed by Muninarayanappa. Further, our right to property during the time of minor is not properly protected. Hence, we have filed the accompanying review petition.
8. I state that we the petitioners were minors during the pendency of the suit and also during the pendency of the appeal before this Hon'ble Court. Our mother had no knowledge about the existence of the Will and only after receiving the letter from the Advocate dated 19.12.2016 we came to know about the Will now produced. Hence, prior to the same there was no occasion or circumstances warranting filing of review petition. After coming to know of the existence of the Will we had no knowledge 15 that a review petitioner an be filed before this Hon'ble Court and only after seeking of legal advise subsequent to the receipt of legal notice dated 27.10.2017 by our vendee we were advised to file the Review petition. Due to lack of legal knowledge and procedures we could not file the review petition immediately after securing the Will. Hence, there is a delay in filing the review petition which may kindly be condoned as being one for sufficient cause.
9. I submit the delay in filing the review petition is for the reasons stated supra which are bonafide, unintentional and under circumstances beyond our control. If the delay is not condoned we would be put to irreparable injury and hardship."
22. Learned counsel Sri. Varadarajan would oppose the application filed under Section 5 of the Limitation Act and submits that the conduct of the defendants/petitioners in filing the review petition with an inordinate delay of 2326 days would only cause prejudice to the plaintiff who have already made out her case for 1/3rd share in the suit schedule properties.
16
23. No-doubt, the reasons for delay are as mentioned above. An opportunity is given and the rights are to be exercised when they are afforded and not that the opportunity will be available through out till it is exhausted. It has become practice to urge the grounds under the principles of natural justice when ever default or lapses are made. Though malafide reasons for inordinate delay are to be checked, at the same time it is to be noted that as much as possible, the matter has to be adjudicated on merits rather than default. I find in the ends of natural justice, application deserves to be allowed. Accordingly, I.A.No.1/2018 delay of 2326 days in filing the review petition is condoned, subject to payment of costs of Rs.2,000/- to be payable to the Prime Minister's Relief Fund.
17
24. In support of the case under review learned counsel Mr.Vijay Krishna Bhat relied on the decision in the case of Pralhad Shankarrao Tajale and others Vs. State of Maharashtra through its Secretary (Revenue) and another (AIR 2018 Supreme Court 1313);
Further, learned counsel relied on the decision, in the case of Khoday Distilleries Limited (Now known as Khoday India Limited) and others Vs. Sri. Mahadeshwara Sahakara Sakkare Karkhane Limited, Kollegal (under Liquidation) represented by the Liquidator) (2019) 4 Supreme Court Cases 376, wherein it is held as under:
Held, (i) an order refusing special leave to appeal may be a non-speaking order or a speaking one- In either case it does not attract the doctrine of merger - An order refusing special leave to appeal does not stand substituted in place of the order under challenge - All that it means is that Supreme Court was not inclined to exercise its discretion so as to allow the appeal being filed.18
(ii) If the order refusing leave to appeal is a speaking order i.e., gives reasons for refusing the grant of leave, then the order has two implications-
Firstly, the statement of law contained in the order is a declaration of law by the Supreme Court within the meaning of Art. 141 of the Constitution - Secondly, other than the declaration of law, whatever is stated in the order are the findings recorded by the Supreme Court which would bind the parties thereto and also the court, tribunal or authority in any proceedings subsequent thereto by way of judicial discipline, the Supreme Court being the Apex Court of the country - But, this does not amount to saying that the order of the court, tribunal or authority below has stood merged in the order of the Supreme Court rejecting the special leave petition or that the order of the Supreme Court is the only order binding as res judicata in subsequent proceedings between the parties.
(iii) In a case where the review petition is filed first, and then an SLP is filed against the same order, then special leave may be refused or granted:
(iii.i) In case special leave is refused, then there being no merger, the review petition would continue to be maintainable, though harmonising the principle laid down by the three-Judge Bench in Abbai Maligai Partnership Firm, (1998) 7 SCC 386, High Court before exercising it s review Jurisdiction has to examine whether the same would amount to an abuse of process or brach of judicial discipline.
(iii.ii) In a case where the review is filed first and special leave is ultimately granted the appeal is pending in Supreme Court, the position then, under Or.47 R.1 CPC is that still the review can be disposed of by High Court - If the review of a decree is granted before the disposal of the appeal against the 19 decree, the decree appealed against will cease to exist and the appeal would be rendered incompetent
- An appeal cannot be preferred against a decree after a review against eh decree has been granted. This is because the decree reviewed gets merged in the decree passed on review and the appeal to superior Court preferred against the earlier decree, the one before review, becomes infructuous
(vi) Once leave to appeal has been granted and appellate jurisdiction of Supreme Court has been invoked the order passed in appeal would attract the doctrine of merger; the appellate order of the Supreme Court may be of reversal, modification or merely affirmation - In such a case the jurisdiction of High Court to entertain a review petition is lost thereafter.
(v) In case a review petition is filed after an SLP against the same order has been dismissed, the same would be maintainable, though harmonising the principle laid down by the three-Judge Bench in Abbai Maligai Partnership Firm (1998) 7 SCC 386, High Court before exercising its review jurisdiction has to examine whether the same would amount to an abuse of process or breach of judicial discipline -
Civil Procedure Code, 1908 - Or.47 R.1 and S.114 - Practice and Procedure - Review - Merger Special Leave Petition (C) No.490 of 2012
- The first appeal of R-1 was allowed by the High Court on 12.11.2008 and it passed a decree of the amount claimed along with interest @ 12% p.a. from the date of demand i.e,. 19.7.1994, up to 3.8.1994 and interest @ 10% p.a. form 4.8.1994 till the date of payment - Against this judgment of the High Court, the appellant preferred the special leave petition which was dismissed on 4.12.2009 - 20 Appellant, even after dismissal of the special leave petition went back to the High Court in the form of review petition seeking review of the judgment dated 12.11.2008 passed by the High Court on the premise that the High Court had granted relief which was not even sought for by R-1 in the suit but the same was dismissed - Held, since special leave petition was dismissed in limine without giving any reasons, the review petition filed by the appellant in the High Court would be maintainable - In the present case, matter remanded back to the High Court for deciding the review petition on merits Civil appeal arising out of Special Leave Petition (C) No.13792 of 2013
- In the present case, special leave petition was dismissed in limine and without any speaking order but after the dismissal of the special leave petition, the respondent approached the High Court with review petition - Held, the High Court was empowered to entertain the same on merits.
Held:
The legal position which emerges is as under:
"(1) While hearing the petition for special leave to appeal, the Court is called upon to see whether the petitioner should be granted such leave or not. While hearing such petition, the Court is not exercising its appellate jurisdiction; it is merely exercising its discretionary jurisdiction to grant or not to grant leave to appeal. The petitioner is still outside the gate of entry though aspiring to enter the appellate arena of the Supreme Court. Whether he enters or not would depend on the fate of his petition for special leave;
(2) If the petition seeking grant of leave to appeal is dismissed, it is an expression of opinion by the Court 21 that a case for invoking appellate jurisdiction of the Court was not made out;
(3) If leave to appeal is granted the appellate of the Court stands invoked; the gate for entry in the appellate arena is opened. The petitioner is in and the respondent may also be called upon to face him, though in an appropriate case, in spite of having granted leave to appeal, the Court may dismiss the appeal without noticing the respondent.
(4) In spite of a petition for special leave to appeal having been filed, the judgment, decree or order against which leave to appeal has been sought for, continues to be final, effective and binding as between the parties. Once leave to appeal has been granted, the finality of the judgment, decree or order appealed against is put in jeopardy though it continues to be binding and effective between the parties unless it is a nullity or unless the Court may pass a specific order staying or suspending the operation or execution of the judgment, decree or order under challenge.
(5) Where an appeal or revision is provided against an order passed by a court, tribunal or any other authority before superior forum and such superior forum modifies, reverses or affirms the decision put in issue before it, the decision by the subordinate forum merges in the decision by the superior forum and it is the latter which subsists, remains operative and is capable of enforcement in the eye of law.
(6) The jurisdiction conferred by Article 136 of the Constitution is divisible into two stages. The first stage is up to the disposal of prayer for special leave to file an appeal. The second stage commences if and when the leave to appeal is granted and the special leave petition is converted into an appeal.22
(7) The doctrine of merger is not a doctrine of universal or unlimited application. It will depend on the nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or capable of being laid shall be determinative of the applicability of merger. The superior jurisdiction should be capable of reversing, modifying or affirming the order put in issue before it.
Under Article 136 of the Constitution the Supreme Court may reverse, modify or affirm the judgment- decree or order appealed against while exercising its appellate jurisdiction and not while exercising the discretionary jurisdiction disposing of petition for special leave to appeal. The doctrine of merger can therefore be applied to the former and not to the latter.
(8) An order refusing special leave to appeal may be a non-speaking order or a speaking one. In either case it does not attract the doctrine of merger. An order refusing special leave to appeal does not stand substituted in place of the order under challenge. All that it means is that the Court was not inclined to exercise its discretion so as to allow the appeal being filed.
(9) If the order refusing leave to appeal is a speaking order, i.e., gives reasons for refusing the grant of leave, then the order has two implications. Firstly, the statement of law contained in the order is a declaration of law by the Supreme Court within the meaning of Article 141 of the Constitution. Secondly, other than the declaration of law, whatever is stated in the order are the findings recorded by the Supreme Court which would bind the parties thereto and also the court, tribunal or authority in any proceedings subsequent thereto by way of judicial discipline, the Supreme Court being the Apex Court of the country. But, this does not amount to saying 23 that the order of the court, tribunal or authority below has stood merged in the order of the Supreme Court rejecting the special leave petition or that the order of the Supreme Court is the only order binding as res judicata in subsequent proceedings between the parties.
(10) Once leave to appeal has been granted and appellate jurisdiction of Supreme Court has been invoked the order passed in appeal would attract the doctrine of merger; the order may be of reversal, modification or merely affirmation. (11) On an appeal having been preferred or a petition seeking leave to appeal having been converted into an appeal before the Supreme Court the jurisdiction of High Court to entertain a review petition is lost thereafter as provided by sub-rule (1) of Rule 1 of Order 47 CPC."
25. The bone of contention between the parties is that, the case of the plaintiff has been that the suit schedule properties belonged to P.Muninarayanappa her father as such being the children of P.Muninarayanappa, plaintiff is entitled for 1/3rd share that was accorded by the trial court and confirmed by the first appellate court and upheld by the Hon'ble Supreme Court.
24
26. The document sought to be relied upon by the present petitioners is Will dated 17.05.99 and being legal representatives of deceased Ramanjaneya, son of executant-Muninarayanappa.
27. The submission of the petitioners herein being the defendants 2 to 5 before the trial court is that the existence of Will dated 17.05.99 was not within their knowledge and the same came to their knowledge only after getting intimation from the learned Advocate through post wherein the existence of Will was made known and by that time Special Leave to Appeal (Civil)No.31939/2011 before the Hon'ble Supreme Court was over as it was dismissed in limine.
28. Now the moot question would be regarding the legal effect of disposal of Special Leave Petition by Supreme Court on the right of review. In this connection, I am guided by the Apex Court, through 25 principles laid down in the case of Khoday Distilleries Limited and others Vs Sri Mahadeshwara Sahakara Sakkare Karkhane Limited, Kollegal (under liquidation) represented by the Liquidator reported in (2019)4 SCC 376 wherein concept of merger is being discussed at length.
29. It is necessary to place on record that Special Leave Petition came to be dismissed at the threshold and it stands on a different footing from an order which is a speaking one and it is dismissed with reasons.
30. Their Lordships in the above citation have compared between the two. When Special Leave Petition is being filed against the Judgment previously passed by this court, the same came to be dismissed by the Apex Court. The relevant factor was that there 26 was no consideration of the Will stated to have been executed by Muninarayanappa in favour of the petitioners(defendants).
31. Further an order of refusing leave when it is a speaking order the observation regarding point of law answered by the Apex Court at the time of dismissal would be a question of law under Article 141 of the Constitution. Thus, such kind of declaration or propounding of a doctrine would bind both the parties. In case where review petition is filed first and thereafter Special Leave Petition is filed against same order, the Special Leave may have been refused or granted. In such a case if the leave is granted the review petition would continue to be maintainable in which event it presupposes that filing of review petition is after filing the Special Leave Petition. 27
32. In this connection, the Hon'ble Supreme Court at page 377 in the case stated supra has laid down principle as to High Court before exercising review jurisdiction has to examine whether same would amount to abuse of process or breach of discipline to set the things straight where Special Leave Petition is filed thereafter and the leave is granted and the appeal is still pending before the court the decision then under Order 47 Rule 1 still be a review that can be disposed of by the High Court.
33. Their Lordships have further held that appeal cannot be preferred against a decree after a review has been granted this is because decree gets merged in decree passed in review and appeal against earlier decree is one before the review.
34. In this connection examination would be whether doctrine of merger applied in the case by virtue of 28 dismissal of Special Leave Petition stated above is applicable. The Supreme Court dismissed the Special Leave to Appeal (Civil)No.31939/2011 on 05.12.2011.
35. In view of summary dismissal of the Special Leave Petition matter came to an end. It is under these circumstances the review petition is filed on 24.02.2018 which is almost seven years after the disposal of Special Leave Petition by the Supreme Court. But the ground urged is the discovery of evidence that came to know of the petitioners on 19.12.2016.
36. Thus, the sole ground of the petitioners- defendants is that the intimation/communication by Sri Lakshmana Raju which is marked as Annexure-A triggered ground to agitate their matter solely on the basis of the registered Will stated to have been 29 executed by Muninarayanappa during the year 17.05.99. As I have discussed while answering on the application filed under Section 5 of the Limitation Act, application for reviewing Judgment is filed after a delay of 2326 days. As the said application is being allowed and delay has been condoned on the sole ground of impact of the said Will on the Judgment and decree passed by this Court in RFA No.210/2009.
37. In this connection learned counsel for respondent-plaintiff would submit that the review petitioners cannot parachute the evidence in surprise and the documents which are not tested and no details are forthcoming.
38. The document which is urged upon by the review petitioner a registered Will dated 17.05.99 by virtue of the registration it could be relied with. At the time of Special Leave Petition this aspect was not within the 30 know of review petitioners and the result of Special Leave Petition is that it came to be dismissed as there is no application of doctrine of merger in the circumstances.
39. The next aspect would be examination under Order 47 Rule 1 of CPC regarding the applicability of the provisions. It is not regarding errors or slippery in making the application.
Order 47 Rule 1 of CPC reads as under:
(1) Any person considering himself
aggrieved-
(a) by a decree or order from which an
appeal is allowed, but from no appeal has been preferred
(b) by a decree or order from which no appeal is allowed, or 31
(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.
(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present 32 to the Appellate Court the case on which he applies for the review.
40. The ground urged is that the petitioners could not produce the document as it was not within their knowledge and could not be produced by them despite of its existence in the year 1999. Thus, it is a discovery of evidence that was present at the time of disposal of RFA No.210/2009 but was beyond the knowledge of petitioners.
41. Insofar as effect of the document would be that in the plaint schedule there were two items. Item No.1 is the landed property of Sy.No.159 Mahadevapura to the extent of 2 acres 30 guntas. Item No.2 is house property.
42. Insofar as the one covered under the Will is stated to be land to the extent of 2 acres 30 guntas in 33 Sy.No.159 which is item No.1. Thus under the Will petitioners are not claiming both the properties but the land which is item No.1.
43. With all the above, the final aspect to be considered is whether discovery of evidence in the form of Will would automatically change the final verdict regarding the schedule property or whether it is to be tested regarding its veracity or credibility. As such dismissal of RFA No.210/2009 on 13.09.2011 is almost 12 years subsequent to the execution of the Will. As the said bequeath directly pertains to subject matter which is substantial in issue, the disposal has to undergo the impact of the Will. The total dismissal of the same may have to be reviewed and in the ends of justice it is absolutely necessary that the trial court has to give a relook and dispose of the matter after consideration of the Will stated to have been executed 34 by Muninarayanappa father of Ramanjaneya and Dhanalakshmi. As such the registered Will has to get its due consideration in the process of adjudication as well the Judgment and decree passed by the trial court in O.S.No.4522/2003 dated 20.12.2008 which is also subsequent to the execution of the Will. Thus, Judgment and decree passed by this court in RFA No.210/2009 is short of consideration of the said Will and it is liable to be recalled. However the same has to be rectified now. Hence, matter deserves to be remanded to the trial court.
Hence, the following:
ORDER
1. Review Petition is allowed.
2. Judgment and decree of this court dated 13.09.2011 passed in RFA No.210/2009 is recalled. consequently Judgment and decree passed in O.S.No.4522/2003 is set aside in 35 respect of item No.1. Matter is remanded to the trial court with a direction that the matter shall be adjudicated regarding the Will dated 17.5.1999 after giving full opportunity to the parties.
In this connection, rights of the parties to file further pleadings, submissions and application for examination of witnesses are kept open.
Further by considering the age and stage of the case and to prevent wastage of judicial time parties shall not wait for further notice to appear before the trial court and shall place their appearance on 22.02.2020.
Learned trial Judge shall dispose of the case expeditiously within an outer limit of six months from the date of first appearance.
36
Since the review petition is allowed and RFA No.210/2009 is remanded to the trial court for consideration, place this order in RFA No.210/2009.
Sd/-
JUDGE tsn*/SBN