Karnataka High Court
Bangalore Development Authority vs P. Anjanappa (Deceased) By L.Rs on 7 January, 2003
Equivalent citations: ILR2003KAR1471, 2003(2)KARLJ250
Author: H.L. Dattu
Bench: H.L. Dattu
ORDER 47 RULE 1--Earlier the Court passed certain orders under mis-appreciation or on the basis of misrepresentation of facts. Review petition filed and all the true facts brought to the notice of the Court. Whether the Court can review its own orders? Held : The private respondents in the proceedings have misled the Court by misrepresenting the facts and the Trial Court was made to believe that certain proceedings were still pending before the Courts for adjudication and thereby allowed the Courts to commit a mistake which is apparent on the face of the record and if not for mis-representation, the earlier judgment would not have been passed but for erroneous assumption which in fact, did not exist and perpetration would result in miscarriage of justice and therefore nothing would preclude this Court from rectifying the error which is apparent on the face of the record. Review Petition 251/02 allowed and Review Petition 752/01 dismissed. ORDER H.L. Dattu, J.
1. Petitioners in Review Petition No. 752 of 2001 claim that they are allottees of sites in RMV II Stage (Gokul II Stage), carved out of lands in Sy. Nos. 25 and 28 of Bhoopasandra Village, Bangalore North Taluk, Bangalore, by the Bangalore Development Authority by their letters of allotment made on 12-9-2000. They claim that they are aggrieved by the orders passed by this Court in M.F.A. No. 5069 of 2000, dated 24-1-2001 in confirming the order of temporary injunction dated 23-10-2000 passed by the Court of the XVI Additional City Civil Judge, Bangalore on I.A. No. II in O.S. No. 5061 of 2000. In this review petition filed under Order 47, Rule 1 of the Code of Civil Procedure they are requesting this Court to review the aforesaid order and further allow the prayers made in M.F.A. No. 5069 of 2000 by setting aside the order of temporary injunction passed by the Trial Court.
2. These petitioners were not parties in M.F.A. No. 5069 of 2000. Therefore, they have filed I.A. No. I seeking permission of this Court to file and prosecute this review petition and they have also filed I.A. No. II to condone the delay, if any, in filing the review petition. Since the prayers made in these applications are not opposed by the other side, this Court by its order dated 11-1.2-2001 had granted the prayers made in the application and thereby permitted these petitioners to file and prosecute the review petition, though they were not parties in M.F.A. No. 5069 of 2000 and also had condoned the delay in filing the review petition.
3. The source of knowledge of the orders passed by this Court in M.F.A. No. 5069 of 2000, petitioners trace it to the orders passed by this Court in W.P. Nos. 13806 and 14376 of 2001 disposed of on 4-7-2001. In the review petition they have stated, that, after they were issued with letters of allotment of sites by BDA on 12-9-2000 carved out of lands in Sy. Nos. 25 and 28 of Bhoopasandra Village, the State Government in exercise of its powers under Section 48(1) of the Land Acquisition Act, 1894 had issued notification dated 9-2-2001, withdrawing from acquisition of the lands in Sy. No. 25 of Bhoopasandra Village; although possession of the said land had been handed over to BDA long back and layout had already been formed by BDA and sites allotted to the members of the public like petitioners herein. Disturbed by this new development, some of the petitioners herein, had questioned the legality or otherwise of the said notification before this Court by filing W.P. Nos. 11761 to 11765 of 2000 and W.P. Nos. 11912 to 11919 of 2001. It is averred that this Court while entertaining the petitions, by its interim order dated 23-3-2001 had granted an interim order of stay, staying the operation of the impugned notification.
4. It appears during the pendency of the aforesaid writ petitions, the State Government had issued yet another notification dated 21-3-2001, . withdrawing the earlier notification dated 9-2-2001. It is stated that the private respondents herein had questioned the correctness or otherwise of the said notification by filing Writ Petition Nos. 13806 and 14376 of 2001. This Court while entertaining these petitions by its order dated 2-4-2001, had passed an interim order of stay, staying the operation of the impugned notification. It is further averred that by a common order dated 4-7-2001 the petitions filed by the petitioners as well as respondents came to be disposed of by this Court. On oath, petitioners have stated that they came to know for the first time, in view of the observations made by this Court in its common order, that the respondents herein had filed O.S. No. 5061 of 2000 in the Court of City Civil Judge, Bangalore, seeking temporary injunction in respect of land bearing Sy. No. 25 of Bhoopasandra Village and after hearing the BDA, the City Civil Court had passed an order dated 23-10-2000 granting temporary injunction in respect of the aforesaid land and that M.F.A. No. 5069 of 2000 filed by BDA was rejected by this Court on 24-1-2001. While seeking review of the orders made by this Court, the petitioners specifically contend that the respondents herein that in the original suit filed by them have deliberately made a false and misleading statement in the plaint and in the affidavits filed in support of I.A. Nos. I and II to the effect that a Public Interest Petition No. 22472 of 1998 filed by one Smt. Manjula was still pending before this Court and the interim order of status quo passed by this Court on 10-8-1998 in respect of the land in Sy. Nos. 25 and 28 of Bhoopasandra Village was still operating against the Bangalore Development Authority and that therefore, no additional legal consequences will operate against BDA, if an order of temporary injunction is passed against BDA from forming a layout of sites, laying roads and drainages etc., in the land in Sy. No. 25 of Bhoopasandra Village. They further state, a perusal of the Trial Court's order of temporary injunction passed on 23-10-2000 in O.S. No. 5061 of 2000, it would make it clear that what predominantly weighed in the mind of the Trial Court while passing the order of temporary injunction, was the aforesaid false averment and but for that false averment knowingly made on oath, the Court was unlikely to have passed the order of temporary injunction dated 23-10-2000 and therefore, it is stated that the respondents herein had fraudulently obtained the order of temporary injunction in the suit filed by them before the Trial Court. In support of this submission, they state that in the writ petition filed by Smt. Manjula in W.P. No. 22472 of 1998 the private respondents were also parties and the said writ petition was dismissed as early as on 30-1-2000, that is much earlier to the institution of the suit by the respondents in O.S. No. 5061 of 2000 and they were fully aware of the fact that the said writ petition was dismissed and the interim order of status quo passed therein had ceased to be in force as early as on 30-1-2000.
5. Petitioners further contend that the respondents herein had filed W.P. Nos. 29933 and 29934 of 2000 before this Court inter alia requesting this Court to quash the preliminary notification dated 19-1-1978 and the declaration made by the State Government under Section 19(1) of the BDA Act, dated 28-12-1982, Gazetted on 64-1988 in respect of lands in Sy. Nos. 25 and 28 of Bhoopasandra Village for formation of RMV II Stage (Gokul II Stage) layout in view of the lapse of the scheme and further for a directioh to the BDA to reconvey the land by executing the deed of reconveyance in view of the Government's communication dated 5-2-1998, giving approval to the BDA's resolution dated 1-12-1982 for reconveyance of the land. It is stated, that this Court by its order dated 22-11-2000 was pleased to dismiss the writ petitions and was further pleased to hold that the Government's communication giving approval for reconveyance had no legal effect whatsoever. Petitioners contend that the respondents deliberately had not disclosed before the Trial Court the pendency of W.P. Nos. 29933 and 29934 of 2000, when it considered the prayer made in I.A. No. II for temporary injunction against BDA.
6. Petitioners further contend that even before the Trial Court passed the order of temporary injunction in O.S. No. 5061 of 2000, against BDA, it had already taken possession of lands and had formed layout and further had allotted sites to the petitioners and others by issuing letters of allotment dated 12-9-2000. Therefore, the orders made by this Court in M.F.A. No. 5069 of 2000, dated 24-1-2001 in confirming the order of temporary injunction passed by the Trial Court against the BDA, seriously injures their legal right, although the orders are made against BDA, in effect and by implication those orders are made against the petitioners. Therefore, they state that they are before this Court for review of the orders passed on 24-1-2000, in M.F.A. No. 5069 of 2000 in confirming the orders passed by the Trial Court on LA. No. II in O.S. No. 5061 of 2000.
7. The grounds urged in support of their review petition are that the private respondents in the review petition have deliberately suppressed the truth and suggested falsehood and practised fraud on the Trial Court as well this Court for obtaining an order of temporary injunction in their favour and thereby petitioners' rights have been adversely affected for no fault or lapse on their part. Therefore, they request this Court to exercise its inherent jurisdiction under Section 151 of the CPC read with Order 47, Rule 1 and review the orders made in M.F.A. No. 5069 of 2000, dated 24-1-2001,
8. The contesting private respondents have entered their appearance through their learned Counsel, but for the reasons best known to them, have not filed their objection to the reliefs sought for by the petitioners in this review petition. "
9. The Bangalore Development Authority for the reasons best known to it alone, initially had not filed any review petition before this Court seeking review of the orders made in M.F.A. No. 5069 of 2001, but had filed only an application under Order 1, Rule 10(2) read with Section 151 of the Code of Civil Procedure, inter alia requesting this Court to transpose the fourth respondent viz., BDA as petitioner 17 in the review petition filed by allottees of the sites by BDA and during the hearing of this review petition, wisdom must have dawned on them and therefore they have thought it fit to file Review Petition No. 251 of 2002 to review the orders made by this Court in M.F.A. No. 5069 of 2000. In the said review, they have raised the very same grounds urged by the petitioners in Review Petition No. 752 of 2001.
10. The learned Senior Counsel for respondents 1 and 2 by way of preliminary objection, submits that the petitioners in Review Petition No. 752 of 2001 have no locus standi to file the review petition, since they were not parties to the proceedings in Review Petition No. 752 of 2001. Therefore, he requests this Court to reject the review petition in limine, without going into merits or otherwise of the review petition. However, Sri N.B. Bhat, learned Counsel for the petitioners submits that since the petitioners are allottees of the sites formed in Sy. No. 25 of Bhoopasandra Village by the BDA, though the petitioners were not parties to the proceedings in O.S. No. 5061 of 2000 in M.F.A. No. 5069 of 2000, the temporary injunction granted by the Trial Court and the orders made by this Court in M.F.A., seriously injures the legal rights of the petitioners. Alternatively, the learned Counsel would submit that though the orders made by the Trial Court and confirmed by this Court in M.F.A. is though expressly against BDA, in effect and by implication, those orders are made against the petitioners. Therefore, review petition filed by the petitioners is maintainable before this Court.
11. The preliminary objection raised by learned Counsel for private respondents need not detain me for long, in view of the settled legal position. It is now well-settled that a review application can be filed only by a party to the Us in which the order sought to be reviewed has been passed. It cannot be preferred by a third party. Alternatively, the review petition cannot be filed by a party who is not a party to the suit. It is not in dispute nor can it be disputed that the petitioners in Review Petition No. 752 of 2001 were not parties before the Trial Court nor parties to the proceedings before this Court in the M.F.A. filed by BDA against the order passed by the Trial Court granting temporary injunction against BDA. Therefore, petitioners cannot seek review of an order in which they were not parties to the lis. Therefore, the review petition filed by allottees requires to be rejected. In view of this finding, it may not be necessary to consider the application filed by BDA under Order 1, Rule 10(2) of the CPC, wherein a prayer to transpose BDA as petitioner 17 in the review petition filed by the private parties is made. Accordingly, the said application is rejected as unnecessary.
12. Now the review petition filed by BDA requires to be considered and decided. There is a delay in filing the review petition. An application is filed under Section 5 of the Limitation Act to condone the delay if any, in filing the review petition. The prayer made in the application is not opposed by the respondents. Therefore, prayer made in the application is granted and the delay in filing the review petition is condoned.
13. Sri Nazeer, the learned Counsel for BDA on merits of the review petition would contend that the private respondents in order to obtain an order of temporary injunction against BDA in respect of lands in Sy. No. 25 of Bhoopasandra Village had deliberately made a false statement not only in the plaint but also in the affidavits filed in support of I.A. Nos. I and II, to the effect that a public interest petition filed by one Smt. Manjula before this Court is still pending and interim orders passed therein in respect of lands in Sy. No. 25 is still operating against the BDA and by making deliberately this false and misleading statement, the respondents have obtained the order of temporary injunction against the BDA from the Trial Court and the appeal filed against the said order is rejected by this Court and thereby confirming the orders passed by the Trial Court which is obtained by playing fraud on the Court. Alternatively, the learned Counsel would contend that the aforesaid false statement made by the respondents on oath, had predominantly weighed in the mind of the Court, while passing the order of temporary injunction against BDA; but for the false statement, the Court was unlikely to have passed the order of temporary injunction. Therefore, it is stated that the order dated 23-10-2000 was obtained fraudulently. The learned Counsel would further contend that by deliberately suppressing the result of the earlier Writ Petition Nos. 16729 and 16730 of 1985 filed by them, the respondents by playing fraud on the Court have obtained an order of temporary injunction against BDA, which order is confirmed by this Court, by rejecting the appeal filed by the BDA. Therefore, it is stated that any order obtained by fraud is vitiated and it cannot be allowed to stand, since the High Court as a Court of record, has a duty to itself to keep its records correct. Hence, if any apparent error is noticed by the High Court in respect of any orders passed by it, the High Court is required to exercise its inherent powers to correct the records. Since this Court has confirmed the order passed by the Trial Court, they cannot even move the Trial Court for any modification.
14. The respondents have not filed their objections resisting the reliefs sought for by BDA in its review petition. However, their learned Senior Counsel Sri Padmanabha Mahale would contend that there is no error apparent on the face of the record in the orders made by this Court in M.F.A. No. 5069 of 2000, dated 24-1-2001 while confirming the orders made by the Trial Court in O.S. No. 5061 of 2000, dated 23-10-2000. Therefore, the review petition is liable to be rejected in limine. Secondly, it is stated that the review petitioners have not pleaded nor made out any ground for review of the orders made by this Court and therefore, review petitioner cannot invoke the inherent powers of this Court to review the earlier order passed. Lastly, it is stated that the respondents had not made any false statement either in the plaint filed or in the affidavit filed along with the application while seeking an order of temporary injunction against the BDA, nor they had played any fraud en the Court for obtaining the order of temporary injunction. Therefore, the assertion made by the petitioners in the review petition is made only to cover up their inaction and lapse.
15. The learned Counsel Sri Nazeer for BDA in aid of his submissions relies upon the observations made by Apex Court in the case of MM. Thomas v. State of Kerala and Anr., . That was a case where a claim petition was filed before the Forest Tribunal inter alia claiming exemption in respect of 20 acres of land as provided under Section 3(1), 3(2) and 3(3) of the Kerala Private Forests (Vesting and Assignment) Act, 1971, inter alia contending that the aforesaid land has not vested in the State Government as envisaged under the Act and the said area fell within the exception as provided under Sub-sections (2) and (3) of Section 3 of the Act. This plea was not accepted by the Tribunal and accordingly, it had rejected the claim petition filed by the owner of the land. In the appeal filed before the High Court, the Division Bench concurred with the view of the Forest Tribunal that the owner of the land (appellant before them) is not entitled to the exemption under Sub-section (3) of Section 3 of the Act, however, proceeded to consider whether the appellant can have benefit of the exemption provided in Section 3(2) of the Act. In that, the Division Bench was pleased to hold that the Tribunal erred in declining to grant relief to the appellant at least to the extent of the property covered under Ext. P. 9 under Section 3(2) of the Act.
A review petition came to be filed by the State Government under Section 8-C(2) of the Act, for review of the earlier judgment of the Division Bench of the High Court dated 13-1-1982. The Division Bench of the High Court reviewed its earlier judgment and dismissed the appeal on two counts and they are:
"The affirmative decision in favour of the applicant-appellant that he was entitled to exemption under Section 3(2) of the Act 26 of 1971 did clearly amount to an error apparent on the face of the record justifying invocation of the power of review.
Second was that the Counsel for the State failed to bring to the notice of the High Court before the judgment was passed on 13-1-1982 that the appellant had not filed return under the provisions of the Kerala Land Reforms Act (for determining the ceiling limit of the area of the land held by him) stating that the disputed land was private forest, and that such a failure on the part of the State's Counsel would amount to concession made by such Counsel as envisaged in Section 8-C(2) of the vesting Act".
In the special leave petition filed before the Apex Court by the owner of the land against the order made by the Division Bench dated 17-2-1987 reviewing its earlier order, the Apex Court was pleased to observe:
"Any claim for exemption under Section 3(2) of the Act must necessarily be in respect of an area, which was brought under cultivation by him before the appointed day i.e., 10-5-1971. In other words, if no cultivation was made by him on the land concerned before the said crucial date its owner cannot base a claim for exemption under Sub-section (2). Appellant did not even mention in his claim petition that he had cultivated the said land before the said date nor did he mention in his evidence that the land was brought under cultivation even on a single day prior to 10-5-1971. Hence, there is no question of considering the exemption under Sub-section (2) and he is not entitled to exemption under Section 3(2). Therefore, the earlier judgment of the High Court dated 13-1-1982 was vitiated by error apparent on the face of the record justifying invocation of power of review de hors Section 8-C(2) of the Act i.e., even if the application for review did not mention that there was any concession made by the Government Counsel. High Court as a Court of record as envisaged in Article 215 of the Constitution must have inherent powers to correct the records. The Court of records envelopes all such powers whose acts and proceedings are to be enrolled in a perpetual, memorial and testimony. A Court which is itself competent to determine the scope of its jurisdiction. The High Court, as a Court of record, has a duty to itself to keep also its records correctly and in accordance with law. Hence, if any apparent error is noticed by the High Court in respect of any orders passed by it, the High Court has not only power but a duty to correct it. The High Court's power in that regard is plenary.
16. In re United India Insurance Company Limited v. Rajendra Singh and Ors., the Apex Court was pleased to observe that the remedy to move for recalling the order on the basis of the newly discovered facts amounting to fraud of high degree cannot be foreclosed and no Court or Tribunal can be regarded as powerless to recall its own order, if it is convinced that the order was wrangled through fraud of misrepresentation of such dimension as would affect the very basis of the claim. In the words of the Apex Court:
"13. In S.P. Chengalvaraya Naidu (dead) by L.Rs v. Jagannath (dead) by L.Rs, the two Judge Bench of this Court held:
" 'Fraud avoids all judicial acts, ecclesiastical or temporal' observed Chief Justice Edward Coke of England about three centuries ago. It is the settled proposition of law that a judgment or decree obtained by playing fraud on the Court is a nullity and non est in the eyes of law. Such a judgment/decree by the first Court or by the highest Court has to be treated as a nullity by every Court, whether superior or inferior. It can be challenged in any Court even, in collateral proceedings".
14. In Indian Bank v. Satyam Fibres (India) Private Limited, another two Judges Bench after making reference to a number of earlier decisions rendered by different High Courts in India stated the legal position thus:
"23. Since fraud affects the solemnity regularity and orderliness of the proceeding's of the Court and also amounts to an abuse of the process of Court, the Courts have been held to have inherent power to set aside an order obtained by fraud practised upon that Court. Similarly, where the Court is misled by a party or the Court itself commits a mistake which prejudices a party, the Court has the inherent power to recall its order".
15. It is unrealistic to expect the appellant-company to resist a claim at the first instance on the basis of the fraud because the appellant-company had at that stage no knowledge about the fraud allegedly played by the claimants. If the insurance company comes to know of any dubious concoction having been made with the sinister object of extracting a claim for compensation and if by that time the award was already passed, it would not be possible for the company to file a statutory appeal against the award. Not only because of the bar of limitation to file the appeal but the consideration of the appeal even if the delay could be condoned, would be limited to the issues formulated from the pleadings made till then.
16. Therefore, we have no doubt that the remedy to move for recalling the order on the basis of the newly discovered facts amounting to fraud of high degree, cannot be foreclosed in such a situation. No Court or Tribunal can be regarded as powerless to recall its own order if it is convinced that the order was wangled through fraud or misrepresentation of such a dimension as would affect the very basis of the claim".
17. Per contra, the learned Senior Counsel for respondents relies upon the following decisions of the Apex Court to buttress his submission that the review of an earlier order passed can only be done if the error apparent on the face of the record is pointed out by the party seeking for review of the earlier order. The learned Counsel firstly invites my attention to the observations made by Apex Court in the case of Avijit Tea Company Private Limited v. Terai Tea Company and Ors., . In the said decision, the Court was pleased to hold that it is not open to the Court/Tribunal to re-open the earlier judgment on an application filed under Order 47, Rule 1 of the CPC, in the absence of error apparent on the face of the record in the earlier judgment. In support of his submissions, the learned Senior Counsel also invites my attention to the observations made by Supreme Court in the cases of Mohd. Ashraf Ali v. Debraj Wadhera, 1995 Supp. (2) SCC 654 and Parsion Devi and Ors. v. Sumitri Devi and Ors., . In these decisions the Court has observed that under Order 47, Rule 1 of the CPC, a judgment may be opened to review, inter alia, if there is a mistake or error apparent on the face of the record. An error which is not self-evident and has to be detected by 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 of the CPG. In exercise of the jurisdiction under Order 47, Rule 1 of the GPC, it is not permissible for an erroneous decision to be reheard and corrected. There is clear distinction between an erroneous decision and an error apparent on the face of the record. While the first can be corrected by the higher forum, the latter can only be corrected by exercise of the review jurisdiction. A review petition has a limited purpose and cannot be allowed to be an appeal in disguise.
18. The learned Senior Counsel also invites my attention to the observations made by the Apex Court in the case of Lily Thomas v. Union of India and Ors., . In the said decision, the Court was pleased to observe:
"52. .... The expression, 'for any other sufficient reason' in the clause has been given an expanded meaning and a decree or order passed under misapprehension of true state of circumstances has been held to be sufficient ground to exercise the power. Apart from Order 40, Rule 1 of the Supreme Court Rules this Court has the inherent power to make such orders as may be necessary in the interest in justice or to prevent the abuse of process of Court. The Court is thus not precluded for recalling or reviewing its own order if it is satisfied that it is necessary to do so for sake of justice.
55. It follows, therefore, that the power of review can be exercised for correction of a mistake and not to substitute a view. Such powers can be exercised within the limits of the statute dealing with the exercise of power. The review cannot be treated an appeal in disguise. The mere possibility of two views on the subject is not a ground for review. Once a review petition is dismissed no further petition of review can be entertained. The rule of law of following the practice of the binding nature of the larger Benches and not taking different views by the Benches and not taking different views by the Benches of co-ordinated jurisdiction of equal strength has to be followed and practised. However, this Court in exercise of its powers under Article 136 or 32 of the Constitution and upon satisfaction that the earlier judgments have resulted in deprivation of fundamental rights of a citizen or rights created under any other statute, can take a different view notwithstanding the earlier judgment".
19. Keeping in view the observations made by the Apex Court in the aforesaid decisions, let me consider whether there is any error apparent on the face of the record in the earlier order made by me in M.F.A. No. 5069 of 2000, dated 24-1-2001 which calls for review or alternatively in view of the grounds urged by the review petitioner would disentitle the respondents herein and the plaintiffs before the Trial Court in obtaining the order of temporary injunction which was confirmed by this Court by rejecting the appeal filed by the review petitioner?
20. The suit filed by respondents herein before the Trial Court in O.S. No. 5061 of 2000 was for a permanent injunction restraining the BDA from forming a layout of sites, laying of roads, drainages etc., or in any other manner altering the suit schedule property in part or in whole or creating a charge over the schedule property or altering the nature of the schedule property namely, the lands in Sy. No. 25, measuring an extent of 2 acres and 30 guntas situate at Bhoopasandra Village, Bangalore North Taluk. Application filed under Order 39, Rules 1 and 2 of the CPC is for an order of temporary injunction in like terms pending disposal of the suit. In the affidavit filed along with the application, it is stated on oath that on their request the BDA has passed a resolution dated 1-12-1982 to reconvey the notified lands and subsequently a resolution is passed dated 24-10-1997 cancelling the earlier resolution without notice to them and in the meanwhile, the State Government has accorded permission to BDA vide their letter dated 6-2-1998 for reconveyance of the schedule property in their favour. Secondly, it is stated that apprehending that the BDA may act upon the permission granted by the State Government, one Smt. T.H. Manjula has filed a public interest litigation questioning the very permission granted by the State Government and the Division Bench of this Court had specifically directed BDA to maintain status quo in respect of the schedule property and that interim order is still operating against the BDA and during the pendency of those proceedings, the BDA is trying to form a layout of sites and if this were to happen that any order that would be made by the Court would be ineffective. Though BDA had filed its objections to the suit as well as prayers made in the application, for the reasons best known to them had not brought to the notice of the Court about the disposal of the public interest litigation filed and also the earlier order made by this Court in W.P. Nos. 16729 and 16730 of 1985 and the pendency of Writ Petition Nos. 29933 and 29934 of 2000 before this Court.
21. The Trial Court while answering Issue 1, that is 'whether the plaintiffs (respondents in review petition) have made out a prima facie case and balance of convenience in their favour', primarily relies upon the pendency of the public interest litigation filed by one Smt. Manjula and the interim orders passed by this Court and secondly, about the sanction accorded by the State Government for the reconveyance of the schedule property in favour of the plaintiffs. The reasoning of the Trial Judge is as under:
"9. xxxx On the records produced by the plaintiffs-applicants it clearly goes to show that, the State Government has directed the defendant to consider the case of the plaintiffs-applicants for reconveyance only in respect of the land Sy. No. 25 of Bhoopasandra Village in the year 1998. Admittedly, the writ petition filed by T.H. Manjula is pending the status quo order passed by the Hon'ble Court of Karnataka, Bangalore, in the said writ petition is still in force are operation. In case if the defendant by violating the status quo order passed by the Hon'ble High Court in respect of the other lands Sy. Nos. 17 and 28 proceed to form the layout and the roads, drains and dispose of the site to the public then certainly the plaintiffs-applicants will be thrown to streets and they will be put to greater hardship, loss and injury. It is undoubtedly true that by virtue of Section 30(a) of the BDA Act, 1978 it is for the defendant to consider the case of the parties in respect of the suit land for the purpose of reconveyance. Admittedly, there is directions given by the State Government of Karnataka to consider the case of the plaintiffs-applicants. Now, admittedly the writ petition is pending wherein there is the operation of the status quo order against the State Government, the defendant and the plaintiff 1 who are the respondents. In the event, if the writ petition is dismissed then certainly the plaintiffs-applicants have a good case on merits, in case if the defendant consider the case of the plaintiffs-applicants otherwise they have no case at all. Under the circumstances, it is significant to note that, there is no question of the alleged lawful possession or enjoyment of the suit schedule property, by the plaintiffs, but it is the case of the not to change the nature of the suit schedule land until the disposal of the writ petition and the disposal of the directions given to the defendant by the State Government of Karnataka. Under these circumstances prima facie it goes to show that on the fact of the records of the case the plaintiffs-applicants have made out a prima facie case and balance of convenience in their favour".
22. Aggrieved by the said order of temporary injunction, the BDA was before this Court in M.F.A. No. 5069 of 2000. This Court by its order dated 24-1-2001 was pleased to reject the appeal and thereby confirmed the order passed by the Trial Court dated 23-10-2000. In view of the rejection of the appeal, the order made by the Trial Court has merged with the orders made by this Court. Now this review petition is filed to review my earlier order dated 24-1-2001.
23. The respondents herein, who were the plaintiffs before the Trial Court deliberately not only had made false statement but also had suppressed the material facts. Respondents were parties to the public interest petition filed by Smt. T.H. Manjula and they were fully aware of the dismissal of the petition on 30-1-2000 much earlier to the filing of the suit by them before the Trial Court. In spite of it, they filed affidavits on oath along with their applications inter alia contending that the public interest petition filed by Smt. Manjula is still pending before the Court and the interim order of 'status quo' passed by this Court is still operating against the BDA. Secondly, on oath they have falsely represented before this Court that their request for reconveyance of the suit schedule property is still pending before the BDA and the State Government Has accorded permission to reconvey the schedule property in their favour, suppressing that in the earlier writ petition filed by them in W.P. Nos. 16729 and 16730 of 1985, disposed off on 19-2-1988 had already decided the issue, whether BDA could pass any resolution to reconvey the lands in question which are acquired under the provisions of the Land Acquisition Act, 1894. In the said case, their main contention was that BDA has passed a resolution to the effect that the request for reconveyance of the lands should be approved subject to payment of reconveyance charges. . While answering their main contention, this Court in the aforesaid petitions had specifically negatived their contention and in that, was pleased to observe that "the acquiring authority ia the State Government and not respondent 2-BDA. The acquisition only for the benefit of the BDA, is initiated and completed by the State Government. It is only the State Government, which is competent to withdraw the acquisition which it has launched and it is not open to BDA to exercise that power which is not vested in it under the law. Though the resolution is evident, the petitioners cannot take advantage of such resolution which has no binding effect in law". Plaintiffs have not even whispered about these crucial aspects before the Trial Court, which considered the application filed by them while granting ex parte temporary injunction. Hence, the Court was misled by the plaintiffs by their deliberate omission, may be in order to mislead the Court and to obtain an ex parte injunction. This Court also was not informed by BDA about the factual misrepresentation made by the plaintiffs, both in their plaint as well as in the affidavits filed along with the applications for grant of temporary injunction. For the first time, these important facts are highlighted by BDA in its review petition. If these facts had been brought to the notice of the Court, I do not think neither the Trial Court would have granted any interim order nor this Court would have confirmed the same by rejecting the appeal filed by BDA, but for erroneous assumption which in fact did not exist has passed orders which would affect a public institution and if these orders are allowed to exist, it shall result in miscarriage of justice and therefore, the error committed by this Court requires to be rectified. At this stage, it would be useful to notice the observations made by the Apex Court in Patel Narshi Thakershi and Ors. v. Pradyumansinghji Arjunsinghji, wherein the Court has observed that the power of review is not an inherent power. It must be conferred by law either specifically or by necessary implication. The review is also not an appeal in disguise. It cannot be denied that justice is a virtue which transcends all barriers and the rules or procedures or technicalities of law cannot stand in the way of administration of justice. Law has to bend before justice. If the Court finds that the error pointed out in the review petition was under a mistake and the earlier judgment would not have been passed but for erroneous assumption which in fact did not exist and its perpetration shall result in miscarriage of justice, nothing would preclude the Court from rectifying the error.
(emphasis supplied)
24. Alternatively, it can be said, both the Trial Court and this Court proceeded on two assumptions based on the pleadings filed by the plaintiffs. The first was by virtue of the interim orders granted by the Division Bench of this Court in the public interest litigation filed by Smt. T.H. Manjula, an interim order operating against the BDA and therefore they are restrained from altering the nature of the property and in spite of it, an attempt is being made to alter the nature of the property by BDA, and therefore they should be restrained from forming any layout of sites or changing the nature of the suit schedule property. The second assumption of the Court was, there is a resolution passed by BDA to reconvey the suit schedule property and therefore BDA cannot alter the nature of the property during the pendency of those proceedings and that assumption was again based on the misrepresentation of the plaintiffs, both in their plaint as well as in the affidavits filed along with application for grant of ex parte injunction. In view of this, it can safely be said that the earlier order passed by me on 24-1-2001 was vitiated by an error apparent on the face of the record.
However, learned Counsel Sri Padmanabha Mahale appearing for private respondents in the review petition would submit that since there is no error apparent on the face of the record, this Court need not review its earlier order. In support of that contention, the learned Counsel firstly relies upon the observations made by Apex Court in the case of M/s. Avijit Tea Company Private Limited, supra. That was a case where on facts, the Court came to the conclusion that there was no error apparent on the face of the record. Therefore, the Apex Court was of the view that the order made by the learned Single Judge in reviewing the earlier order granting refund was impermissible.
25. In the case of Mohd. Ashraf Ali, supra, the eviction suit was decreed on the ground that the tenant had created sub-tenancy. The Trial Court had granted the decree and the same was affirmed in the first and second appeals; but on a review petition filed by the tenant, on facts which was alien to the subject-matter, the learned Judge who had passed the earlier judgment had reversed his earlier order passed on merits. In the special leave petition filed, the Apex Court was of the view that the same is impermissible in view of the strict terms of Order 47, Rule 1 of the CPC on the ground that the arena of facts pleaded by the tenant was outside the sphere of second appeal and therefore, the review petition could not have been entertained.
26. In the case of Lily Thomas, supra, the Apex Court in fact has observed that the power of review can be exercised within the limits of the statute dealing with the exercise of power. The power of review can be exercised in correction of a mistake and not to substitute a view. The review cannot be treated as an appeal in disguise. The mere possibility of two views on the subject is not a ground for review. The observations made by the Apex Court in this decision may not assist the learned Senior Counsel for the reason that in the present case, I have come to the conclusion that there is error apparent on the face of the record since this Court had proceeded on the wrong assumption in view of suppression of material facts by the plaintiff before the Trial Court.
27. In Parsion Devi's case, supra, has explained under what circumstances, a judgment or order could be reviewed in exercise of the provisions under Order 47, Rule 1 of the CPC. In that, Court has observed that 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 of the CPC. In exercise of the jurisdiction under Order 47, Rule 1 of the CPC, it is not permissible for an erroneous decision to be reheard and corrected. There is a clear distinction between an erroneous decision and an error apparent on the face of the record. While the first can be corrected by the higher forum, the latter can only be corrected by exercise of the review jurisdiction. A review petition has a limited purpose and cannot be allowed to be an appeal in disguise. The aforesaid view of the Apex Court in reiteration of the earlier principles stated and restated by Supreme Court in more than one decision. This well-settled law may not once again come to the aid of private respondents. The Apex Court, has similarly stated that power of review can be exercised, in a case where there is a mistake apparent on the face of the record and if the error is self-evident. In the instant case, the law declared by the Apex Court would be beneficial to the review petitioner, rather than the private respondents in view of the facts noticed by me earlier.
28. In the present case, from the facts noticed by me earlier, the plaintiffs before the Trial Court and the respondents in M.F.A. proceedings have played fraud on the Court, taking advantage of deliberate and wanton ignorance of the authorities of BDA in securing an order which is more beneficial to them. To say the least, they have approached the Courts by making false statements and thereby have abused the process of Court, and further have played fraud on the Courts, may be with the active connivance with the authorities of the review petitioner to secure an order to defeat the very purpose of acquisition of suit schedule property. As I have already observed, but for the false and deliberate misrepresentation made by them, the Trial Court and this Court in M.F.A. proceedings would not have granted the interim prayer sought for by the plaintiffs by the Trial Court and this Court would not have confirmed the said order by rejecting the appeal filed by the opposite party. The order obtained by fraud cannot be allowed to stand and that would be miscarriage of justice. The Apex Court in the case of United India Insurance Company Limited, supra, has observed that "Fraud and justice never dwell together and no judgment of a Court, no order of a Minister can be allowed to stand, if it has been obtained by fraud, for, fraud unravels everything". In the said decision, the Apex Court has also noticed the observations made by the Apex Court in the case of Indian Bank, supra, wherein it is stated that "since fraud affects the solemnity, regularity and orderliness of the proceedings of the Court and also amounts to an abuse of the process of Court, the Courts have Been held to have inherent power to set aside an order obtained by fraud practised upon that Court. Similarly, where the Court is misled by a party or the Court itself commits a mistake which prejudices a party, the Court has inherent power to recall its order. In the present case, the observations made by the Apex Court, in my view would apply in all its force. The plaintiffs/private respondents in these proceedings have misled the Courts by misrepresenting the facts and the Trial Court was made to believe that certain proceedings were still pending before the Courts for adjudication and thereby allowed the Courts to commit a mistake which is apparent on the face of the record and if not for misrepresentation, the earlier judgment would not have been passed but for erroneous assumption which in fact, did not exist and its perpetration would result in miscarriage of justice and therefore nothing would preclude this Court from rectifying the error which is apparent on the face of the record. Even otherwise, the meaning of the expression "for any other sufficient cause" which finds a place under Order 47, Rule 1 of the CPC would definitely assist this Court to correct a decree or order passed under this appreciation or on the basis of misrepresentation of facts.
29. In view of the aforesaid circumstances, the earlier order made by this Court in M.F.A. No. 5069 of 2000, dated 24-1-2001 requires to be recalled and the matter requires to be reheard. Accordingly, review petition filed by the BDA in R.P. No. 251 of 2002 is allowed and the review petition filed by the private parties in R.P. No. 752 of 2001 is rejected. My earlier order dated 24-1-2001 in M.F.A. No. 5069 of 2000 is recalled. Office is directed to post M.F.A. No. 5069 of 2000 for admission. No order as to costs. Ordered accordingly.