Karnataka High Court
Chidananda vs Smt Kadeejamma on 13 April, 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF APRIL, 2018
BEFORE
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
R.P.No.236 OF 2017
In
R.S.A No.1204 OF 2009
BETWEEN :
CHIDANANDA
S/o PUTTANNA GOWDA
AGE: MAJOR
REP. BY HIS GPA HOLDER
LAKSHMINARAYANA K.
S/o KRISHNAPPA GOWDA
AGED ABOUT 59 YEARS
R/AT KANDIGEMOOLE HOUSE
IVARNADU VILLAGE
SULLIA TALUK, D.K. - 574 239 ... PETITIONER
(BY SRI SAMPATH ANAND SHETTY, ADV.)
AND:
SMT.KADEEJAMMA
W/o LATE A.M.MOHAMMED
AGE: MAJOR
REP. BY HIS GPA HOLDER
SRI K.ABDUL MUTAIB
S/O LATE A.M.MOHAMMED
AGED ABOUT 39 YEARS
R/AT KANDIGEMOOLE HOUSE
IVARNADU VILLAGE
SULLIA TALUK, D.K. - 574 239 ... RESPONDENT
(BY SRI K. SRIHARI, ADV.)
2
THIS R.P. FILED UNDER SECTION 114 R/W ORDER 47 OF
C.P.C BY THE PETITIONER PRAYING TO REVIEW THE JUDGMENT
AND DECREE DATED 24.04.2017 PASSED BY THIS COURT IN
RSA NO.1204/2009 AND SET-ASIDE THE SAME IN SO FAR AS
SUIT ITEM NO.2 AND 3 OF PLAINT 'A' SCHEDULE ARE
CONCERNED.
THIS R.P. COMING ON FOR ADMISSION ALONG WITH I.A.
Nos.2 AND 3 OF 2017, THIS DAY THE COURT MADE THE
FOLLOWING:-
ORDER
Heard.
2. In this petition, the petitioner invoking Section 114 and Order 47 Rule 1 of CPC seeks review of the Judgment passed by this Court on 24.04.2017 in RSA No.1204/2009.
3. Petitioner is the respondent and the respondent is the appellant in RSA No.1204/2009. The said case arose out of the Judgment and Decree dated 17.07.2003 passed in O.S. No.50/1993 by the Civil Judge (Jr.Dn.) Sullia, Dakshina Kannada and confirmed by the 3 Addl. Senior Civil Judge and JMFC, Puttur in R.A. No.90/2003 on 04.07.2009.
4. The petitioner was the plaintiff in that suit. He filed the said suit against the present respondent for permanent injunction in respect of the lands bearing Sy. Nos.235/1(p), 1/10 and 1/30 of Iivernadu Village of Sullia Taluk. He contended that he is the owner of the suit schedule properties and is in lawful possession of the same as on the date of the suit. As against that respondent contended that her husband was the tenant of the suit schedule properties, on his demise his tenancy rights devolved on her and her tenancy is protected under the Karnataka Land Reforms Act (for short, 'the Act').
5. The Trial Court negatived the defence of the respondent and decreed the suit which was confirmed by the First Appellate Court. The respondent challenged those Judgments and Decrees in RSA No.1204/2009. This 4 Court on hearing the parties admitted the appeal to hear the following substantial questions of law:
1. In view of the bar under Section 133 of the Land Reforms Act for entertaining a suit concerning the question of factum of possession, was the trial court justified in entertaining the suit, and similarly was the appellate court right in affirming the judgment and decree in such a suit?
2. Whether the trial court was justified in decreeing the suit restraining the defendant by an order of permanent injunction from utilising the land in question, when the issue regarding possession was pending decision before the Tribunal?
6. Thereafter the parties were heard and by the Judgment dated 24.04.2017 which is sought to be reviewed, this Court held that the matter in respect of plaint schedule item No. 2 and 3 properties is pending for consideration on the issue of tenancy under the Act. Therefore partly allowed the appeal dismissing the appeal in respect of plaint schedule item No.1 property and allowing the appeal in respect of plaint schedule item No.2 and 3 properties, directing the Trial Court to dispose of the 5 matter in accordance with S.133 of the Act in respect of those properties.
7. The petitioner seeks the review of the said Judgment on the following two grounds:
(i) As on the date of filing of the suit that is in the year 1993, Form VII filed by the husband of the respondent was dismissed by the Land Tribunal and therefore S.133 of the Act is not applicable.
(ii) This Court has not taken into consideration the Full Bench Judgment of this Court in BALESHA RAMA KHOT AND OTHERS Vs. LAND TRIBUNAL, CHIKODI AND OTHERS, 1978 (1) KLJ 116.
8. The respondent contests the petition contending that the Judgment is passed after hearing both the parties at length and hearing all the points raised in the suit and there is no error apparent on the face of the record. Respondent further contends that since the counsel who has filed the present review petition is not the counsel 6 who argued the matter in the Regular Second Appeal, this petition is not maintainable.
9. Sri Sampath Anand Shetty, learned counsel for the petitioner, reiterating the grounds of the review petition, contends that this Court committed error apparent on the face of the record in holding that S.133 of the Act applies and thus remanding the matter to the Trial Court. He seeks to draw support to his contention relying upon the following Judgments:
1. Mallayya Murigeyya Naduvinamath v. Puttappa Shivappa Mosali -
AIR 1976 KAR 192
2. G.Gopal v. K.Basheer 2016 (3) KCCR 2398
3. Raviraja Shetty v. Bhoopala Shetty- ILR 2001 KAR 2836
4. Montu Dalmeda v. Poul Dalmeda-
KCCR 2003 (4) 2642
5. Bakki Reddy deceased by LRs.
v. Govinda Reddy- 2002 (4) KCCR 2916
6. Thomas Antony v. Varkey Varkey-
(2000) 1 SCC 35 7
7. M/s Green View Tea and Industries v. Collector, Golaghat, Assam and another- AIR 2004 SC 1738
8. Board of Control for Cricket, India and another v. Netaji Cricket Club and others AIR 2005 SC 592
9. N.Venkateshappa v. Munemma and others (2016) 4 SCC 147
10. Mysore-Chamarajanagar District v. The primary Agricultural credit Co-operative society and others in R.P.No.93/2013
11. Ramesh Kumar Hegde v. The Authorised Officer Head Quarter, Assistant and Competent Authority and another in R.P.No.271/2009
10. Sri K. Srihari, learned counsel for the respondent, reiterating the grounds of the statement of objections, contends that the petition itself is not maintainable and there is no error apparent on the face of the record. In support of his arguments he relies upon the following Judgments:
1. Tamil Nadu Electricity Board & another Vs. N. Raju Reddiar & another -AIR 1997 SC 1005
2. Kamalesh Verma Vs. Mayawati & others-
AIR 2013 SC 3301 8
3. Rejendra Kumar & others Vs. Rambhai & others -AIR 2003 SC 2095
11. Having regard to the rival contentions the question that arises for consideration is whether any grounds are made out to review the Judgment dated 24.04.2017 in RSA No.1204/2009?
12. Since it is the review petition in the civil matter, the petition can be entertained only on the grounds stated under Order 47 Rule 1 CPC. Out of them, the only ground, the petitioner urges is that there is an error apparent on the face of the record in holding that S.133 of the Act applies and on that basis remanding the matter in respect of plaint schedule item No.2 and 3 properties.
13. What amounts to error apparent on the face of the record is stated in KAMLESH VERMA's case referred to supra referring to many other earlier Judgments of the Supreme Court and extensively dealing with the matter. 9 The Hon'ble Supreme Court in para Nos. 8 to 11 of the said Judgment has held as follows:
8. This Court has repeatedly held in various judgments that the jurisdiction and scope of review is not that of an appeal and it can be entertained only if there is an error apparent on the face of the record. A mere repetition through different counsel, of old and overruled arguments, a second trip over ineffectually covered grounds or minor mistakes of inconsequential import are obviously insufficient. This Court, in Sow Chandra Kante & Anr. vs. Sheikh Habib Manu/SC/0064/1975:(1975) 1 SCC 674, held as under:
"1. Mr. Daphtary, Learned Counsel for the Petitioners, has argued at length all the points which were urged at the earlier stage when we refused special leave thus making out that a review proceeding virtually amounts to a re-hearing. May be, we were not right is refusing special leave in the first round; but, once an order has been passed by this Court, a review thereof must be subject to the rules of the game and cannot be lightly entertained. A review of a judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility. A mere repetition, through different counsel, of old and overruled arguments, a second trip over ineffectually covered ground or minor mistakes of inconsequential import are obviously insufficient. The very strict need for compliance with these factors is the rationale behind the insistence of counsel's certificate which should not be a routine affair or a habitual step. It is neither 10 fairness to the Court which decided nor awareness of the precious public time lost what with a huge backlog of dockets waiting in the queue for disposal, for counsel to issue easy certificates for entertainment of review and fight over again the same battle which has been fought and lost. The Bench and the Bar, we are sure, are jointly concerned in the conservation of judicial time for maximum use. We regret to say that this case is typical of the unfortunate but frequent phenomenon of repeat performance with the review label as passport. Nothing which we did not hear then has been heard now, except a couple of rulings on points earlier put forward. May be, as counsel now urges and then pressed, our order refusing special leave was capable of a different course. The present stage is not a virgin ground but review of an earlier order which has the normal feature of finality."
9. In a criminal proceeding, review is permissible on the ground of an error apparent on the face of the record. A review proceeding cannot be equated with the original hearing of the case. In M/s. Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi MANU/SC/0445/1979:(1980) 2 SCC 167, this Court, in paragraph Nos. 8 & 9 held as under:
8. It is well-settled that a party is not entitled to seek a review of a judgment delivered by this Court merely' for the purpose of a rehearing and a fresh decision of the case. The normal principle is that a judgment pronounced by the Court is final, and departure from that principle is justified only when circumstances of a substantial and compelling character make it necessary to do so: Sajjan Singh v. State of Rajasthan. For instance, if the attention of the Court is not drawn to a material statutory provision during the original hearing, the Court will review its judgment: G.L. Gupta v. D.N. Mehta. The Court may also reopen its 11 judgment if a manifest wrong has been done and it is necessary to pass an order to do full and effective justice: O.N. Mohindroo v. Distt. Judge, Delhi.
Power to review its judgments has been conferred on the Supreme Court by Article 137 of the Constitution, and that power is subject to the provisions of any law made by Parliament or the rules made under Article
145. In a civil proceeding, an application for review is entertained only on a ground mentioned in Order 47 Rule 1 of the Code of Civil Procedure, and in a criminal proceeding on the ground of an error apparent on the face of the record (Order 40 Rule 1, Supreme Court Rules, 1966). But whatever the nature of the proceeding, it is beyond dispute that a review proceeding cannot be equated with the original hearing of the case, and the finality of the judgment delivered by the Court will not be reconsidered except "where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility": Sow Chandra Kante v. Sheikh Habib.
9. Now, besides the fact that most of the legal material so assiduously collected and placed before us by the learned Additional Solicitor General, who has now been entrusted to appear for the Respondent, was never brought to our attention when the appeals were heard, we may also examine whether the judgment suffers from an error apparent on the face of the record. Such an error exists if of two or more views canvassed on the point it is possible to hold that the controversy can be said to admit of only one of them. If the view adopted by the Court in the original judgment is a possible view having regard to what the record states, it is difficult to hold that there is an error apparent on the face of the record."
10. Review of the earlier order cannot be done unless the court is satisfied that material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice. This Court, in Col. Avtar Singh Sekhon vs. Union of India & Ors. MANU/SC/0416/1980: 1980 (Supp) SCC 562, held as under:
"12. A review is not a routine procedure. Here we resolved to hear Shri Kapil at length to remove any feeling that the party has been hurt without being heard. But we cannot review our earlier order 12 unless satisfied that material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice. In Sow Chandra Kante v. Sheikh Habib this Court observed :
"A review of a judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility.... The present stage is not a virgin ground but review of an earlier order which has the normal feature of finality."
11. An error which is not self-evident and has to be detected by a process of reasoning can hardly be said to be an error apparent on the face of the record justifying the Court to exercise its power of review. A review is by no means an appeal in disguise whereby an erroneous decision is re-heard and corrected, but lies only for patent error. This Court, in Parsion Devi & Ors. vs. Sumitri Devi & Ors., MANU/SC/1360/1997: (1997) 8 SCC 715, held as under:
"7. It is well settled that review proceedings have to be strictly confined to the ambit and scope of Order 47 Rule 1 CPC. In Thungabhadra Industries Ltd. v. Govt. of A.P. this Court opined:
"What, however, we are now concerned with is whether the statement in the order of September 1959 that the case did not involve any substantial question of law is an "error apparent on the face of the record'). The fact that on the earlier occasion the Court held on an identical state of facts that a substantial question of law arose would not per se be conclusive, for the earlier order itself might be erroneous. Similarly, even if the statement was wrong, it would not follow that it was an 'error apparent on the face of the record', for there is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterised as vitiated by 'error apparent'. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error.
(emphasis ours) 13
8. Again, in Meera Bhanja v. Nirmala Kumari Choudhury while quoting with approval a passage from Aribam Tuleshwar Sharma v. Aribam Pishak Sharma this Court once again held that review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1 Code of Civil Procedure.
9. Under Order 47 Rule 1 Code of Civil Procedure a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the court to exercise its power of review under Order 47 Rule 1 Code of Civil Procedure. In exercise of the jurisdiction under Order 47 Rule 1 Code of Civil Procedure it is not permissible for an erroneous decision to be "reheard and corrected". A review petition, it must be remembered has a limited purpose and cannot be allowed to be "an appeal in disguise".
14. Ultimately in para 16 of the Judgment, it is stated when the review petition is maintainable and when not maintainable as below:
"16. Thus, in view of the above, the following grounds of review are maintainable as stipulated by the statute:
(A) 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 the record;14
(iii) Any other sufficient reason.
The words "any other sufficient reason" has been interpreted in Chhajju Ram v. Neki MANU/PR/0006/1922 : AIR 1922 PC 112 and approved by this Court in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius and Ors. MANU/SC/0003/1954 : (1955) 1 SCR 520, 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 vs. Sandur Manganese and Iron Ores Ltd. and Ors. MANU/SC/0417/2013 : JT 2013 (8) SC 275."
15. In para 16A(ii) it is said that review will be maintainable in case of mistake or error apparent on the face of the record. Para 16B enumerates the conditions when the review is not maintainable. Para 16B reads as follows:
(B) When the review will not be Maintainable:
(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.15
(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 out 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.
(Emphasis supplied)
16. From the principles enunciated and discussed above, it is clear that the review petition is not a re- hearing of an original matter or an appeal in disguise. The petitioner cannot be permitted to argue the points which were already argued and over-ruled. The contentions of the learned counsel for the petitioner is that S.133 of the Act is not applicable because as on the date of the filing of the suit Form VII filed by the defendant's husband was already dismissed. However there is no dispute that those proceedings have not attained finality. The petitioner in his petition itself, in para 3 admits that now issue of 16 tenancy is pending before this Court in W.P. No.18796/2015.
17. Reading of para 12 of the Judgment sought to be reviewed shows that the learned counsel who represented the review petitioner in the appeal proceedings urged the same grounds. He relied upon the same Judgments. Learned counsel for the petitioner now relying upon the Judgment in RAVIRAJA SHETTY V. BHOOPALA SHETTY, ILR 2001 KAR 2836 contends that this Court has held that once the Land Tribunal rejects the application of the tenant then the operation of S.133 of the Act comes to an end.
18. But the perusal of the Judgment shows that the very same Judgment was pressed into service by the learned counsel for the respondent. This Court in para 18 of the Judgment referred to that Judgment and the other Judgments relied upon by the learned counsel for the appellant. The perusal of para 17 to 19 of the Judgment shows that this Court held that having regard to the Larger 17 Bench Judgments in KORAGA MARAKALA Vs. KAMALA, 1988(1) KLJ 34(FB) and MALLAYYA MURIGEYYA NADUVINAMATH Vs. PUTTAPPA SHIVAPPA MOSALI, AIR 1976 KAR 192 (DB), the Single Bench Judgments cannot be followed. Therefore it is not open to the petitioner to contend that this Court has not considered the implications of the rejection of the application of the respondent by the Land Tribunal or the legal principles, the ratio in the RAVIRAJA SHETTY's case.
19. The perusal of the Judgment shows that the counsel for the appellant did not rely on the Judgment in BALESHA RAMA's case supra. Therefore there was no occasion for this Court to consider the said Judgment. This is the introduction of new arguments in the review petition. However, BALESHA RAMA'S case does not deal with Section 133 of the Act.
20. Learned counsel arguing this petition is not the counsel who argued the matter in the appeal. Therefore there is much force in the contention of the learned 18 counsel for the respondent that it is not open to the counsel for the petitioner to contend that the non applicability of S.133 of the Act was argued and this Court has not considered the same and that amounts to error apparent on the face of the record.
21. Having regard to the facts and circumstances of the case, the Judgments relied upon by the learned counsel for the petitioner are not applicable. The parties cannot be permitted to re-agitate the matter before the same Court in the guise of review petition. This Court does not find any merit in the petition.
Petition is dismissed with cost of Rs.3,000/- payable to the Library Fund of the Bengaluru Advocates' Association.
In view of the disposal of the review petition, I.A. Nos.2 and 3 of 2017 do not survive for consideration and disposed of accordingly.
Sd/-
JUDGE sac*