Karnataka High Court
H L Rangashetty vs S K Rangaswamy on 8 December, 2022
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RP No. 72 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF DECEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
REVIEW PETITION NO. 72 OF 2012
IN
R.S.A.NO.903/2005 C/W. R.S.A.NO.770/2005
BETWEEN:
1. H. L. RANGASHETTY
S/O.H.T.LAKKANNASHETTY
R/A.GANIGARA BEEDHI
HASSAN
...PETITIONER
(BY SRI. ASHOK HARANAHALLI, SR. ADV. A/W.
SRI. M. N. MADHUSUDHAN, ADVOCATE)
AND:
1. S. K. RANGASWAMY
S/O.VELLAPURIGOWDA
R/AT PENSION MOHALLA
HASSAN
Digitally signed 2. THIMMEGOWDA
by BELUR SINCE DECD BY HIS L.RS
RANGADHAMA
NANDINI
Location: HIGH (a) SRI KARIGOWDA @ GADIANNA
COURT OF
KARNATAKA S/O.LATE THIMMEGOWDA
AGED 57 YERS
R/AT TAMLAPURA LAYOUT
TEJUR ROAD, HASSAN
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RP No. 72 of 2012
(b) SRI BHEEMEGOWDA @ LORRY SHAMANNA
S/O.LATE THIMMEGOWDA
AGED ABOUT 50 YEARS
SREELAKSHMI TRANSPORT
TAMLAPURA LAYOUT
TEJUR ROAD, HASSAN]
(c) SRI KRISHNEGOWDA
S/O.LATE THIMMEGOWDA
AGED ABOUT 55 YEARS
TAMLAPURA LAYOUT
TEJUR ROAD, HASSAN
(d) SMT. PUTTAMMA
W/O. RANGEGOWDA
D/O.LATE THIMMEGOWDA
AGED ABOUT 68 YEARS
KEB MAISTRY, ALUR
(e) SMT. RATHNAMMA
D/O.LATE THIMMEGOWDA
W/O.SWAMY GOWDA
TEJUR ROAD, HASSAN
(f) SMT. MUTTAMMA
D/O. LATE THIMMEGOWDA W/O. PADMEGOWDA
R/AT MARIGUDIKOPPALU
TATTEKERE POST, HASSAN
3. T. K. THIMMEGOWDA
SINCE DEAD BY HIS LRS
(a) SMT. DEVIRAMMA
AGED ABOUT 52 YEARS
(b) MOHAN KUMAR
S/O. LATE THIMMEGOWDA
AGED ABOUT 34 YEARS
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RP No. 72 of 2012
(c) MANJUNATHA
S/O.LATE T. K. THIMMEGOWDA
AGED ABOUT 30 YEARS
(d) VENKATESH
S/O.LATE T.K. THIMMEGOWDA
RESPONDENT NOS.3(a) TO (d) ARE
RESIDENTS OF TAMLAPURA VILLAGE
KASABA HOBLI, HASSAN TALUK
...RESPONDENTS
(BY SRI. A. V. GANGADHARAPPA, ADV. FOR R1;
R2(a) TO R(c) SERVED; R3(a) TO R3(d) SERVED;
VCO. DTD.21.07.2014 NOTICE TO R2(d) IS D/W.)
THIS REVIEW PETITION IS FILED UNDER ORDER 47
RULE 1 OF CPC, PRAYING FOR REVIEW THE ORDER DATED
12-04-2011 PASSED IN RSA.903/2005 C/W. 770/2005,
ON THE FILE OF THE HON'BLE HIGH COURT OF
KARNATAKA, BANGALORE.
THIS PETITION, COMING ON FOR FINAL HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This Review Petition is filed seeking review of the judgment dated 12.04.2011 passed in RSA No.903/2005 c/w. RSA No. 770/2005.
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2. The brief facts that have to be noted for adjudication of this Review Petition are as under:
The suit was filed for specific performance of the contract dated 27.04.1976. The suit was filed against the person who has executed the agreement for sale. In the suit, the third defendant got impleaded in the suit on the premise that he has purchased the property during the pendency of the suit. However, his contention is that he had an agreement for sale in his favour which was earlier to the filing of the suit. The Trial Court after considering the evidence on record, has concluded that the plaintiff is not entitled for specific performance of the contract and has dismissed the suit.
Being aggrieved by the said judgment and decree, the plaintiff filed an appeal in RA No.2/2005, on the file of Fast Tract Court and Additional District Judge, Hassan. The said appeal was allowed and appellate court has held that the plaintiff is entitled to the relief of specific performance -5- RP No. 72 of 2012 of the contract and has consequently, decreed the suit.
Aggrieved by the said judgment and decree, two Regular Second Appeals are filed. The RSA No.903/2005 is filed by the Vendor and RSA No.770/2005 was filed by the Purchaser.
This Court vide impugned order dated 12.04.2011 has dismissed both the appeals. Both the appeals are dismissed by the common judgment.
3. This Court vide order dated 07.07.2005 has framed following two substantial questions of law:
1. Whether the judgment and decree passed by the 1st appellate Court reversing the judgment and decree passed by the trial Court and decreeing the suit of the plaintiff for specific performance is perverse and abritrary for being contrary to law and non-consideration of the reasons assigned by the trial Court in dismissing the suit of the plaintiff.
2. Whether the 1st appellate court having answered point No.8 regarding reception of findings in affirmative could rely on the document without following further procedure under O 41 R 27 of CPC.
4. The first substantial question of law is relating to the appreciation of evidence and reasons of the trial Court by -6- RP No. 72 of 2012 the First Appellate Court in reversing the judgment and decree passed by the Trial Court. The second question is relating to the production of additional document allowed by the First Appellant Court under Order XLI Rule 27 of CPC. This Court has dismissed the appeal primarily discussing the first substantial question of law and there is no discussion relating to second substantial question of law and as such, the review petition is filed to review the judgment and decree dated 12.04.2011.
5. Sri Ashok Haranahalli, learned Senior Counsel appearing for the appellant would raise the following contentions:
1. This Court has raised two substantial questions of law while admitting the appeal and while the appeal was decided by answering only first substantial question of law and there is no finding on the second substantial question of law.
2. The thumb impression on the original agreement dated 27.04.1976 was disputed by the defendants and it was sent for expert's opinion and expert returned the document with an observation that the thumb impression is smudged, and he is not in a position to give opinion on the said document.-7- RP No. 72 of 2012
Thereafter, the Trial Court sent the xerox copy of the said document for the expert's opinion and there is no finding relating to the admissibility of secondary evidence by this Court and same amounts to an error apparent on the fact of the record.
3. The agreement for sale dated 27.04.1976 does not refer to the sale deed which is executed on the same day, as such, the requirement of mortgage by conditional sale of Transfer of Property Act, 1882 is not complied and this Court has failed to consider this aspect while deciding the appeal.
4. The suit being one for specific performance of the contract and the Court ought to have examined the case as required under Section 22 of the Specific Relief Act. Non examination of the case with reference to Section 22 of the Specific Relief Act amounts to an error appearant on the face of the record. Therefore, seeks to review the impugned judgment and decree.
6. Learned Senior Counsel in support of his contentions would place reliance on the following judgments:
i. Judgment of the Apex Court in the case of Gajarba Bhikhubha Vadher and others vs. Sumara Umar Amad reported in (2020) 11 SCC 114.-8- RP No. 72 of 2012
ii. Judgment of the Apex Court in the case of Board of Control for Cricket in India and another vs. Netaji Cricket Club and others reported in (2005) 4 SCC 741.
iii. Judgment of the Apex Court in the case of Union of India vs. Ibrahim Uddin and another reported in (2012) 8 SCC 148.
iv. Judgment of the Apex Court in the case of Rajeshwari vs. Puran Indoria reported in (2005) 7 SCC 60.
v. Judgment of the Apex Court in the case of Ashok Dulichand vs. Madhavlal Dube and another reported in AIR 1975 SC 1748.
vi. Judgment of the Apex Court in the case of Parakunnan Veetill Joseph's son Mathew vs. Nedumbara Kuruvila's son and others reported in AIR 1987 SC 2328.
vii. Judgment of the Apex Court in the case of Smt. J.
Yashoda vs. Smt. K. Shobha Rani reported in AIR 2007 SC 1721(1).
viii. Judgment of the Apex Court in the case of Raj Kishore (dead) by LRS. vs. Prem Singh and others reported in (2011) 1 SCC 657.
ix. Judgment of the Apex Court in the case of Siddiqui (dead) by L.Rs. vs. A. Ramalingam reported in 2011 AIR SCW 1886.
x. Judgment of the Apex Court in the case of Hemanta Mondal and others vs. Ganesh Chandra Naskar reported in (2016) 1 SCC 567. -9- RP No. 72 of 2012 xi. Judgment of the Apex Court in the case of Prabhat Zarda Factory Limited vs. Commissioner of Central Excise and another reported in (2016) 1 SCC 652.
xii. Judgment of the Apex Court in the case of Bakshi Dev Raj (2) and another vs. Sudheer Kumar reported in (2011) 8 SCC 679.
xiii. Judgment of the Apex Court in the case of K.
Simrathmull vs. Nanjalingaiah Gowder
reported in AIR 1963 SC 1182.
7. Sri A.V.Gangadharappa, learned counsel appearing for respondent No.1 would raise the following contentions:
1. The scope of review under Order 47 Rule 1 is limited. In exercise of power under Order XLVII Rule 1, the Court can review the order/decree only in case the error apparent on the face of the record. The court cannot review the order/decree when no error apparent on the face of the record is pointed out.
2. The contention relating to Section 22 of Specific Relief Act is not raised in the appeal memo filed by the appellant and no substantial question of law is sought to be framed in the appeal. As such, there is no justification in contending that this court ought to have considered the case with reference to Section 22 of the Specific Relief Act.
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RP No. 72 of 2012
3. As far as the consideration of secondary evidence is concerned, the objection was raised while marking the xerox copy in the evidence. The objection was overruled by the Trial Court. The order was questioned by filing Civil Revision Petition No.4270/2021 and this Court vide order 06.03.2002 has disposed of the Civil Revision Petition with certain observations. The objection relating to the secondary evidence is considered by the learned judge of this Court and the same cannot be a ground for review.
4. The grounds urged in the review petition do not constitute to the grounds, which can be considered under Order XLVII Rule 1 of Code of Civil Procedure, 1908.
5. As far as contention relating to no finding given by this Court on a second substantial question of law, it is urged that the First Appellant Court, though it allowed the application for production of additional documents, has not based its finding on the additional documents and the First Appellant Court has held that the additional documents are not relevant for the adjudication of the case. As such, the judgment of this Court not answering the substantial question of
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RP No. 72 of 2012law does not amount to an error in the backdrop of the facts of this case.
8. Learned Senior Counsel appearing for the petitioner would urge that in Civil Revision Petition No.4278/2001 the question relating to the admissibility of the xerox copy of the agreement was kept open and as such, this Court ought to have considered the contention relating to the admissibility of xerox copy of the agreement dated 27.04.1976.
9. This Court has considered the rival contentions raised at the bar and also considered ratio laid down in the judgments cited at the bar and also considered the material placed on record.
10. From the judgment of the First Appellant Court, it is apparent that the First Appellant Court has allowed the application for production of additional documents in exercise of power under Order XLVII Rule 27 of Code of Civil Procedure, 1908. Those documents are the document produced by the appellant and originated during the pendency of the suit relating to the conversion of the land use and the objections
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RP No. 72 of 2012raised by the present respondent relating to the conversion of the land use. Having said that, the First Appellate Court allowed the applications. While deciding the case, the First Appellate Court held that the documents were not relevant and allowed the appeal by setting aside the judgment and decree of the Trial Court and granted decree for specific performance of the contract.
11. On reading of the judgment of the First Appellant Court, it is apparent that the First Appellant Court has not relied upon the additional documents while reversing the judgment and decree of the Trial Court. The judgment and decree of the Trial Court are reversed based on the evidence already placed on the record, before the trial Court and not based on records placed as additional evidence before the First Appellate Court.
12. Under these circumstances, this Court is of the view that the second substantial question of law would not have arisen for consideration. However, the substantial question of law was framed while admitting the case on 07.07.2005. The
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RP No. 72 of 2012line of judgments cited by the learned Senior Counsel for the appellant would indicate that when the substantial question of law was framed, all the substantial questions of law had to be answered. In the event that the same is not answered, the judgment gets vitiated. In the judgments cited at the bar, the Apex Court has come to the conclusion that not answering the substantial question of law is an error and Court has set aside judgment and remitted the matter to the High Court to give a finding on the substantial question of law. However, as already noticed in this case, though the substantial question of law is framed, not answering the said substantial question of law relating to the production of additional evidence has not vitiated the judgment and decree passed by this Court for the simple reason, as reliance is not placed on the said dates to reverse the finding of the Trial Court. The First Appellant Court has come to the conclusion that the documents are not relevant for the adjudication of the case and has not taken those documents for consideration. Accordingly, in the facts and circumstances of this case, not giving a specific finding relating
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RP No. 72 of 2012to a substantial question of law No.2 does not amount to an error apparent on the face of the record.
13. So far as the contention that this Court ought to have considered the case under Section 22 of the Specific Relief Act is concerned, this Court is of the view that such a plea was not raised in RSA No.770/2005. Thus, learned Judge of this Court could not have considered the said question. Under these circumstances, the review petitioner cannot urge the review court to consider a case which is not urged in the appeal memo. Accordingly, the non consideration of a case under Section 22 of the Specific Relief Act cannot be considered an apparent error on the face of the record.
14. As far as the third contention that the secondary evidence could not have been admitted in evidence is concerned, this Court is of the view that the objection relating to secondary evidence was overruled by the Trial Court and the same was admitted in evidence. This order was called in question by the present petitioner by filing Civil Revision Petition No.4278/2001. This Court has held in the said
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RP No. 72 of 2012proceedings that the xerox copy has to be examined along with the original of the agreement dated 27.04.1976 and the parties are permitted to raise objections before this Court and are also permitted to cross examine experts in this regard. The commissioner submitted his report and has given evidence. He was cross-examined. Though in Civil Revision Petition No.4278/2001, the trial Court says that admissibility of the document may be questioned at a later stage, this Court is of the view that by considering the tenor of the order in Civil Revision Petition No.4278/2001, this Court has permitted the xerox copy to be examined by the expert and an opportunity was also given to the parties to cross-examine the Commissioner. The Trial Court as well as the First Appellant Court have considered the evidence of the Commissioner, and the learned Judge of this Court has also considered the findings of the Trial Court as well as the First Appellant Court on the disputed agreement for sale, which was the subject matter of expert's opinion. By considering the fact that this court in Civil Revision Petition No. 4278/2001 has permitted the examination of a xerox copy along with the original document, this court is
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RP No. 72 of 2012of the view that the contention relating to secondary evidence is not considered cannot be considered as an error apparent on the face of the record.
15. As far as the contention that suit ought to have been filed by the two persons based on the fact that the sale is executed deed was executed by two persons is concerned, again, this Court has taken the view that the agreement for sale is only in favour of one person, and if at all there is any objection, it is the objection to be raised by the family members of the person who sold the property. The finding of this Court on this point cannot be considered an erroneous finding so as to attract the exercise of review jurisdiction to interfere with the said order.
16. It is also the contention of the petitioner that the court ought to have given a finding relating to the developments of the property made by the petitioner. Since developments are said to have been made during the pendency of the suit, there is no question of this Court giving finding
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RP No. 72 of 2012relating to the development of property and payment of money in favour of the petitioner.
17. For the aforementioned reasons, this Court is of the considered opinion that no ground is made out to allow the review petition. Accordingly, the review petition is dismissed.
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JUDGE KA