Karnataka High Court
Shri Dodda Thayappa vs Shri.H.N.Venkatesh Reddy on 7 December, 2022
Author: V. Srishananda
Bench: V. Srishananda
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF DECEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
REVIEW PETITION NO.59/2021
BETWEEN:
SHRI. DODDA THAYAPPA,
SINCE DECEASED BY LRS,
SHRI. H.T.NARAYANA REDDY,
S/O LATE DODDA THAYAPPA REDDY,
AGED 77 YEARS,
R/O HOODI VILLAGE, WHITEFIELD ROAD,
MAHADEVAPURA POST,
BENGALURU - 560 048.
...PETITIONER
(BY SRI.NATARAJ, ADVOCATE FOR
SRI.SHANMUKHAPPA, ADVOCATE)
AND:
1. SHRI.H.N.VENKATESH REDDY,
S/O H.M. NARASIMHA REDDY,
R/O HOODI VILLAGE,
WHITEFIELD ROAD,
MAHADEVAPURA HOBLI,
BENGALURU - 560 048.
2
H.M.NARASIMHA REDDY,
SINCE DECEASED BY HIS LRS:
2. SMT. SAVITHRAMMA,
W/O LATE H.M.NARASIMHA REDDY,
PRESENT AGED ABOUT 78 YEARS,
3. SMT. BHAGYAMMA,
D/O LATE H.M.NARASIMHA REDDY,
RESPONDENT NO.2 AND 3
ARE RESIDING AT HOODI VILLAGE,
WHITE FIELD ROAD,
MAHADEVAPURA POST,
BENGALURU - 560 048.
4. SMT. LAKSHMAMMA,
D/O LATE H.M.NARASIMHA REDDY,
W/O SHRI. NARAYANA REDDY,
AGED 63 YEARS,
R/O SINGANAYAKANAHALLI VILLAGE,
YELAHANKA HOBLI,
BENGALURU NORTH TALUK - 560 077.
5. SMT. PADMAVATI,
D/O LATE SHRI. H.M.NARASIMHA REDDY,
W/O SHRI LAKSHMANA REDDY,
PRESENT AGED ABOUT 53 YEARS,
R/O KOOTHAGANAHALLI,
SARJAPURA HOBLI,
ANEKAL TALUK - 571 182.
6. SHRI. H.N.NARAYANASWAMY,
S/O H.M.NARASIMHA REDDY,
R/O HOODI VILLAGE,
WHITEFIELD ROAD,
MAHADEVAPURA POST,
BENGALURU - 560 048.
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7. SHRI. H.T.JAYAPPA REDDY,
S/O LATE DODDATHAYAPPA,
8. SMT. PARVATHAMMA,
D/O LATE SHRI. DODDATHAYAPPA,
W/O SRINIVASA REDDY,
9. SMT. SHANTHAMMA,
D/O LATTE DODDATHAYAPPA,
W/O SHRI NARAYANASWAMY,
RESPONDENT NO.7 TO 9
RESIDING AT HOODI VILLAGE,
WHITEFIELD ROAD, MAHADEVAPURA POST,
BENGALURU - 560 048.
...RESPONDENTS
(BY SRI. SADASHIVA REDDY P.V., ADVOCATE FOR R1;
R2, R3, R4, R7, R9 ARE SERVED BUT UNREPRESENTED;
SRI.M.NAGESH BABU, ADVOCATE FOR R5;
SRI.M.S.SHISHIRA HOLLA, ADVOCATE FOR R6;
VIDE ORDER DATED 15.09.2022, THE RP AGAINST
R8 STANDS DISMISSED)
*****************
THIS REVIEW PETITION UNDER ORDER 47 RULE 1 OF CPC,
PRAYING TO REVIEW THE JUDGMENT IN RFA NO.319/2004
DATED 06/12/2019 IN THE INTEREST OF JUSTICE AND EQUITY.
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THIS REVIEW PETITION COMING ON FOR ADMISSION
THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
Heard Sri. Nataraj, learned counsel representing Sri. Shanmukhappa, learned counsel on record for appellant and Sri. D.V. Sadashiva Reddy, learned counsel representing contesting respondent No.1.
2. The present review petition is filed challenging the validity of the Judgment and Decree passed in RFA No.319/2004 on the file of this Court, dated 06.12.2019.
3. Facts in brief which are utmost necessary for the disposal of the review petition are as under:
RFA No.319/2004 was directed against the Judgment and Decree passed in O.S. No.1419/1993 on the file of XX Addl. City Civil & Sessions Judge, Bengaluru. The said suit was filed seeking partition in the plaint schedule properties. The plaint schedule properties are as under:5
" (1) Land bearing Sy. No.2/2 of Hoodi Village measuring to an extent of 5 guntas;
(2) R.C.C roofed house with vacant land attached thereto property bearing House List No.86 of Hoodi Village;
(3) House and vacant land in property bearing House List No.87 of Hoodi Village; and (4) Land bearing Sy.no.185/7 measuring 1 acre 2 guntas of Hoodi Village, K.R. Puram Hobli, Bengaluru South Taluk. "
4. Suit on contest came to be decreed and the same was challenged by the review petitioner in appeal. The appeal was heard on merits and came to be dismissed.
5. In para 26 of the order under review, this Court has held as under:
26. Insofar as sale deed dated 20.11.1990 in favour of defendant No.3 is concerned, there is no material at all as to the existence of vices by 6 defendant No.1 nor was there bonafide legal necessity and benefit to the estate, in which event, the estate share of defendant No.1 is bound by his act, at the same time, any amount of extent in item No.4 of the schedule property cannot be sacrified from the share of plaintiff and defendant No.2. In other words, the share of defendants at the time of actual demarcation on the basis of entitlement of 1/3rd share of defendant No.1 could be applied to the share of defendant No.3 herein. Otherwise, I do not find any infirmity, illegality or perversity in the judgment and decree dated 12.12.2003 passed in O.S.No.1419/1993 by the XX Addl. City Civil Judge, Bengaluru and it deserves to be confirmed.
Accordingly, the appeal is dismissed.
No order as to costs."
6. Being aggrieved by the Judgment passed by this Court in RFA No.319/2004, the review petitioner approached the Hon'ble Apex Court in SLP No.12862/2020. The Hon'ble Apex Court declined to entertain the SLP, however, reserved liberty for the review petitioner to file the present review before this Court. Accordingly, the present review petition is filed by the 7 review petitioner raising the following grounds questioning the order passed in RFA No.319/2004:
" (i) This Hon'ble Court while passing the Judgment and Decree has not analyzed and juxtaposed the issues vis-a-vis the testimony, documentary evidence, material on record and legal contentions urged before it more so the same came to be passed in cryptic terms much against the principles of adjudication of Appeals thereby resulted in travesty of justice. Therefore, the Judgment and Decree deserves to be reviewed to ensure advancement of justice.
(ii) This Hon'ble Court has committed an apparent error while passing the Judgment and Decree sans formulating appropriate questions for determination of Appeal as visible on the face of records. Hence, the Judgment and Decree is a cryptic order that goes to shake the judicial conscience since there is no discussion either in respect of testimony or in respect of documentary evidence or material on record and legal contentions urged before it.
Therefore, it requires to be reviewed in the interest of advancement of justice.
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(iii) The Judgment and Decree passed by this Hon'ble Court is on the face against the principles laid down by the Hon'ble Supreme Court reported in ILR 2020 Page 1219 whereunder the Hon'ble Supreme Court had categorically stated that, the 1st Appellate Court in all fairness is duty bound to formulate questions and adjudicate the matter in controversy in the interest of advancement of justice. Whereas in the instant case, no such questions were formulated or discussed but the Hon'ble Court hastened to confirm the Judgment and Decree passed confirming the Judgment and Decree of the Hon'ble Trial Court in undue haste sans application of mind. Therefore, the Judgment and Decree passed by this Hon'ble Court is nothing short of perversity since the same on the face goes against the principles laid down by the Hon'ble Apex Court in the matter of adjudicating first Appeals. Hence, this Petition deserves to be considered in the interest of advancement of justice.
(iv) It is further submitted that, contrary to the principles laid down by the Hon'ble Apex Court, the Hon'ble 1st Appellate Court, neither reappraised the evidence on record nor passed a reasoned Order as prescribed for compliance under Order-XLI Rule-31 of the CPC while deciding the first Appeals which not 9 speak volumes on the quality of juxtapose but resulted in miscarriage of justice thereby tainting the instance Appeal farcical thereby defeating the very purpose of Appeal consequently ends of justice took a severe beating. Therefore, this Petition deserves to be considered in the interest of advancement of justice.
(v) The Hon'ble Supreme Court in catena decisions categorically held that, the first Appeals are in continuation of the Original Suit. Therefore, pleading, testimony and documentary evidence are to be analyzed, appreciated and documents have to be discussed and only thereafter, points for consideration should be formulated to decide the controversy in the matter. Again reappraisal of evidence in the instant case was warranted in the interest of advancement of justice in the facts and circumstances of the case in order to prevent miscarriage of justice. But, in the case on hand, no such points for consideration were formulated based on the issues as well as testimony, documentary evidence, material on record and legal contentions urged leave alone discussion. The Hon'ble 1st Appellate Court mechanically proceeded to confirm the Judgment and Decree passed by the Hon'ble Trial Court in cryptic terms. Therefore, the same requires 10 to be reviewed adverting to the Hon'ble Apex Court Judgment cited herein above.
(vi) It is strange that the Hon'ble 1st Appellate Court has shown lax and negated sound principles of Appeal thereby thrown to wind Justice shall not only be done but shall be seem to be done in the interest of advancement of justice.
(vii) The Revision Petition filed today, amidst COVID-19 pandemic lockdown, its continued impact, the Petitioner being a Super Senior Citizen was put to great hardship in as much as in the face of COVID-19 relief granted vide Hon'ble High Court Notification, the period of limitation was extended from time to time, hence the Revision Petition filed along with Application to this effect today, is in time and deserves dispassionate and benign consideration under the extenuating COVID-19 pandemic to entertain the same in the interest of advancement of justice. "
7. Learned counsel for the review petitioner Sri. Nataraj, reiterating the grounds urged in the review petition, contended that the Trial Court has not properly appreciated that the sale in favour of the present review petitioner has taken 11 place on 20.11.1990 and in the sale deed there is a clear recital that property was a self-acquired property of first defendant and therefore the Trial Court ought not to have decreed the suit of the plaintiff granting share in respect of suit item No.4 and item No.4 of the suit properties would not have been available for partition as on the date of the suit, and therefore decree is bad. He also pointed out that though the same is urged in the appeal establishing the oral and documentary evidence on record to substantiate the contentions of the review petitioner, learned Judge who passed the Judgment in RFA No.319/2004 on 06.12.2019 did not consider the same in proper perspective and there is a misreading of the oral and documentary evidence on record and therefore, sought for review.
8. Per contra, learned counsel for the contesting respondent No.1 Sri. D.V. Sadashiva Reddy opposed the review petition.
9. This Court perused the material on record meticulously in view of the rival contentions of the parties including the Judgment under review.
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10. It is the specific case of the review petitioner that he purchased the suit item No.4 property on 20.11.1990. Learned counsel for the review petitioner banked upon the recital found in the said sale deed which is marked as Ex.P4 that item 4 of the suit property is the self acquired property of the first defendant.
11. However, the learned Trial Judge has recorded a categorical finding after full-fledged trial that there was no legal necessity for the first defendant to part away from the suit item No.4 to the review petitioner by virtue of the sale deed dated 20.11.1990 and there was no material on record to show that first defendant had an independent income to acquire the suit property so as to term it as self-acquired property of first defendant. The said finding was subjected to scrutiny by this Court by exercise of power vested with this Court under Section 96 of Civil Procedure Code. While re-appreciating the factual and legal aspects, this Court as referred to supra, in para 26 has clearly held that review petitioner failed to show that suit item No.4 was self acquired property of first defendant so as to sell it absolutely in favour of third defendant i.e., review petitioner. 13
12. Per contra, the finding recorded by the Trial Judge which was affirmed by this Court in RFA No.319/2004 is based on facts and logical reasons. Having regard to the scope of this Court in review, this Court is of the considered opinion that entertaining this review petition for further consideration as to the legality of the finding recorded by the learned Trial Judge in O.S. No.1419/1993 as affirmed in the RFA No.319/2004 is not permissible.
13. Accordingly the following:
ORDER Admission declined.
The review petition is dismissed.
No order as to costs.
However, the liberty granted by this Court in the Judgment under review that the review petitioner can work out his remedy in the final decree proceedings is kept intact.
Sd/-
JUDGE sac*