Karnataka High Court
Smt Padmaja S vs Capt (Retd) V R Srinivas on 6 April, 2018
Equivalent citations: AIRONLINE 2018 KAR 2644, 2018 (4) AKR 508
Author: S. Sujatha
Bench: S. Sujatha
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF APRIL 2018
PRESENT
THE HON'BLE MRS.JUSTICE S. SUJATHA
AND
THE HON'BLE MR.JUSTICE B.A. PATIL
REVIEW PETITION No.123/2018
IN MFA No.4293/2017 [FC]
BETWEEN :
SMT. PADMAJA S.,
W/O. CAPT. [RETD]., V.R. SRINIVAS
D/O. LATE Sri. P. SAI PRASAD
AGED 33 YEARS
No.495, 9TH CROSS,
RAJMAHAL VILAS EXTENSION,
BANGALORE - 560 080
...PETITIONER
(BY Sri. N. RAVINDRANATH KAMATH, ADV.)
AND :
CAPT. [RETD]. V.R. SRINIVAS,
S/O. LATE BNR CHANDRA
AGED 44 YEARS
13/1, 5TH MAIN, GANGANAGAR
BANGALORE - 560 032
...RESPONDENT
THIS REVIEW PETITION IS FILED UNDER ORDER 47
RULE 1 R/W. 114 OF CPC, PRAYING TO ALLOW THIS REVIEW
PETITION AND THE ORDER DATED 1.7.2017 IN M.F.A.
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No.4293/2017 PASSED BY THIS COURT MAY BE REVIEWED IN
ACCORDANCE WITH LAW AND ETC.,.
THIS PETITION COMING ON FOR ORDERS THIS DAY,
S. SUJATHA J., MADE THE FOLLOWING:
ORDER
This review petition is directed against the order dated 1.7.2017 passed in M.F.A. No.4293/2017, whereby the appeal filed by the appellant/petitioner has been disposed of with certain observations.
2. This review petition is filed along with I.A. No.1/2018 to condone the delay of 220 days in filing the review petition. Since, no notice was issued to the respondent in the main matter [MFA No.4923/2017], to consider for issuance of notice on this I.A. No.1/2018, we have examined the case on merits.
3. Briefly stated the facts are:
The petitioner is the legally wedded wife of the respondent. The couple have two children who are minors and are in the custody of the petitioner. At the -3- first instance, the petitioner and respondent filed a joint petition in M.C. No.2852/2007 for divorce by mutual consent before the Principal Family Court at Bengaluru, which came to be dismissed. Subsequently, the respondent filed M.C. No.665/2012 before the Family Court to dissolve the marriage with the petitioner. The petitioner contested the matter. In the said proceedings, petitioner filed interim application [I.A. No.2] seeking permanent alimony from the respondent. Writ Petition No.20615/2015 was filed by the petitioner challenging the order of maintenance awarded by the Family Court in M.C. No.665/2012. The said writ petition came to be disposed of on 4.12.2015 with the following observations:
"2. Having regard to the substantial income of the respondent and though the petitioner is also said to be employed and said to be terminated from service from at least two companies on account of her continued absence, as she had to take care of her ailing -4- child, the interim maintenance awarded by the trial court stands enhanced to Rs.45,000/- per month which shall be paid from 2.5.2015 till date and the respondent shall continue to pay the interim maintenance at the same rate till the disposal of the main petition. This order is subject to modification by the trial court depending on the evidence tendered before it insofar as maintenance or alimony, as the case may be, which may be ordered, in favour of the petitioner - wife.
3. Insofar as the further claim of the petitioner as regards large expenses incurred and the expenses that she foresees for the children's education and for medical expenses of her daughter, which is strongly disputed by the respondent, shall also be examined by the trial court in fixing the amount that shall be paid by the respondent. This order of interim maintenance therefore is dependant on the final order that may be passed."-5-
4. Subsequently, M.C. No.665/2012 was finally heard and came to be dismissed. Aggrieved by the same, petitioner filed MFA No.4293/2017 before this Court. This Court disposed of the matter, observing that the petitioner has not made out a case to challenge the order passed by the Family Court, which was preferred by the respondent-husband. Aggrieved by the same, petitioner preferred Special Leave to Appeal [C] No.4740/2018 before the Hon'ble Apex Court. The Hon'ble Apex Court has observed thus:
"We are not inclined to interfere in the impugned order passed by the High Court.
However, it will be open for the petitioner to file an application for review of the order impugned in the present Special Leave Petition.
The Special Leave Petition is dismissed with the aforesaid observation."-6-
5. Accordingly, petitioner has preferred this review petition.
6. Learned Counsel Sri. Ravindranath Kamath, appearing for the petitioner would vehemently contend that the order passed by this Court in MFA No.4293/2017 has to be reviewed on three counts. Firstly, this Court failed to consider Section 25 of the Hindu Marriage Act, 1955 ['Act', for short], in the right perspective. Elaborating the arguments on this point, learned Counsel submitted that Section 25 of the Act contemplates, any court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard -7- to the respondent's own income and other property. The phrase 'at the time of passing any decree' has been emphasized by the learned Counsel to contend that application for permanent alimony filed under Section 25 of the Act was pending before the Family Court at the time of disposal of the main matter. It was obligatory on the part of the Family Court to dispose of the application filed under Section 25 of the Act, seeking permanent alimony. Notwithstanding the dismissal of the case filed by the respondent/husband, the petitioner is entitled to permanent alimony, the same has not been considered by this Court.
7. Secondly, petitioner had filed Writ Petition No.20615/2015 before this Court whereby this Court directed the respondent to pay the maintenance of Rs.45,000/- per month and further directed the respondent to continue to pay interim maintenance at the same rate till the disposal of the main petition. -8- Despite the order passed by this Court, respondent- husband has not paid the interim maintenance as directed by this Court. Thirdly, it is submitted that the respondent-husband in his cross examination has admitted his annual income of Rs.36,00,000/- [Rupees Thirty Six Lakhs only] whereas in reply to the application for interim maintenance, he had taken the stand that his monthly income is Rs.1,23,723/- [Rupees One Lakh Twenty Three Thousand Seven Hundred and Twenty Three Only], which amounts to perjury and accordingly an application under Section 340 of Code of Criminal Procedure has been filed by the petitioner before the competent Court. These three vital aspects were not noticed by this Court while disposing of MFA No.4293/2017. Thus, learned Counsel submits that there is an error apparent on the face of the record which necessarily requires a review of the said order. -9-
8. Heard the learned counsel appearing for the petitioner and perused the material on record.
9. We have given our anxious consideration to the arguments advanced by learned counsel appearing for the petitioner.
10. Regarding first point, it is taken care of by this court in as much as permanent alimony/interim maintenance to which the petitioner is entitled to. It is categorically observed in paragraph-5 of the order that if the appellant is desirous to have maintenance in accordance with law, it would be for the appellant to resort to appropriate proceedings independently, wherein both the parties will have an opportunity and an appropriate order may be passed by the Court, but not by way of interim applications as sought to be canvassed.
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11. It is significant to note that petitioner being aggrieved by dismissal of M.C. No.665/2012 filed by the respondent-husband, had preferred MFA No.4293/2017. On the query made by this Court as to how the petitioner is aggrieved by the decree of dismissal of the petition, learned counsel appearing for the petitioner had contended that there were interim applications filed by the petitioner for maintenance and further there was also interim direction of this Court dated 4.12.2015 in W.P. No.20615/2015, which arose from the interim application in the main petition for divorce. It was contended that it was obligatory on the part of the trial Court to decide such interim applications. All these aspects have been recorded in paragraph-3 of the order of this Court dated 1.7.2017 in M.F.A. No.4293/2017. If that being so, learned counsel appearing for the petitioner now cannot argue that the interim applications filed by the petitioner seeking for permanent alimony or the directions issued by this
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Court in Writ Petition No.20615/2015 was not considered by this Court. Considering these factual aspects, this Court has given a categorical finding that the interim orders would be in operation only till the final order is passed or in other words, the interim order or interim proceedings would merge with the final order. Admittedly, final order has been passed in M.C. No.665/2012 by the Family Court on 18.04.2017. As such, the interim order granted by this Court or the trial Court would no longer survive for consideration.
12. As regards the contention of the learned Counsel that the direction issued by this Court in W.P. No.20615/2015 has not been complied by the respondent-husband, it would be profitable to refer to the specific observations made by the learned Single Judge of this Court in paragraph-3 that this order of interim maintenance therefore is dependent on the final order that may be passed. If so, pursuant to passing of
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the final order, petitioner cannot claim that the respondent-husband has not complied with the direction of this Court in granting the interim maintenance.
13. As regards the aspect of proceedings initiated under Section 340 of Code of Criminal Procedure, alleging perjury against the respondent- husband, the same depends on the final outcome of M.C. No.665/2012 which is the genesis for the subsequent disputes. If the genesis i.e., original M.C. No.665/2012 is disposed of, all consequential or subsequent proceedings initiated by the parties would not survive for consideration. On all these three grounds, now urged by the petitioner, review of the order as sought for cannot be considered by this Court.
14. The Hon'ble Apex Court in the case of 'KAMLESH VERMA v. MAYAWATI AND OTHERS' reported in 2013 AIR SCW 4944, after considering
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elaborately the law holding the field on the aspect of review, has summarized the principles as under:
"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;
(iii) Any other sufficient reason.
The words 'any other sufficient reason' have been interpreted in Chhajju Ram v. Neki, air 1922 PC 112 and approved by this Court in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius and others [AIR 1954 SC 526] to mean 'a reason sufficient on grounds at least analogous to those specified in the rule'. The same principles have been
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reiterated in Union of India v. Sandur Manganese & Iron Ores Ltd and others [2013 AIR SCW 2905].
[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 re- heard and corrected but lies only for patent error.
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(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."
15. From the said Judgment, it is manifestly clear that the review will not be maintainable when the arguments were made and overruled by the Court i.e., repetition of old and overruled argument is not enough to reopen the concluded adjudication. The review proceedings cannot be equated with the original hearing of the case. The quintessential aspect for review is the error apparent on the face of the record. The error
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apparent on the face of the record should not be an error which has to be fished out and searched. We do not find any error apparent on the face of the record from the arguments now advanced by learned counsel appearing for the petitioner to review the order. It is well settled legal principle that the scope of review is limited. Review is not an appeal in disguise. The arguments now canvassed have been considered and negatived by this Court as narrated in the preceding paragraphs. Hence, we do not find any ground to review the order as sought for. Hence, there is no merit in review petition and deserves to be dismissed.
16. Ordinarily, we would have taken a lenient view to condone the delay provided the petitioner had a good case on merits. We have heard learned counsel appearing for the petitioner and analyzed the factual as well as legal aspects in depth and have arrived at a conclusion that the petitioner has no good case on
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merits. Hence, we are not inclined to condone the delay of 220 days in filing the review petition. I.A. No.1/2018 is dismissed.
17. Hence, I.A. No.1/2018 as well as Review Petition stands dismissed.
In view of the dismissal of the main matter, all other pending applications are consigned to file.
Sd/-
JUDGE Sd/-
JUDGE AN/-