Partly allowed

Abdul Jabbar @ Ameer v. Habeeb Pasha

Karnataka HC14 Jun 2013RSA/373/2012

Case brief

AI extract

What is this about?

This appeal challenged the maintainability of proceedings regarding an appeal filed against an order allowing a review petition. The court held that such an appeal is a Miscellaneous Second Appeal and allowed the conversion of the regular second appeal into one.

What did the court decide?

The objection regarding maintainability was sustained, and the appellants were permitted to convert the regular second appeal into a Miscellaneous Second Appeal under Order 43 Rule 1(w) of the CPC.

Abdul Jabbar @ Ameer Vs Habeeb Pasha — Civil Procedure and Limitation | Karnataka HC (2013)

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IN THE HIGH COURT OF KARNATAKA AT BANGALORE

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DATED THIS THE 14^TH DAY OF JUNE 2013

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BEFORE

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THE HON’BLE MR.JUSTICE S. ABDUL NAZEER

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REGULAR SECOND APPEAL NO.373/2012 (DEC/INJ)

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Between:

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1 Abdul Jabbar @ Ameer, S/o late Hayath Sab, Aged about 68 years, R/a Asst.No.665/634/3289/1, Old Division No.II, Present Ward No.II, Kharadi Mohalla, Sira Town.

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2 Mohammed Hussain, S/o late Hayath Sab, Aged about 73 years, Since dead by his L.Rs.

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2(a) Fathimabi, W/o late Mohammed Hussain, Aged about 74 years, R/o Kharadi Mohalla, Sira Town.

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2(b) Mohammed Rahula, S/o late Mohammed Hussain, Fruits Merchants, Aged about 51 years, Mecca Rice Mill Road, Sira Town.

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2(c) Mohammed Eliyas, S/o late Mohammed Hussain, Aged about 42 years, R/o Kharadi Mohalla, Sira Town.

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2(d) Mohammed Showkath, S/o late Mohammed Hussan, Aged about 42 years, R/o Kharadi Mohalla, Sira Town.

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2(e) Jamilabi @ Akthar, D/o late Mohammed Hussain, W/o Ameer Khan, Aged about 39 years, R/a 15^th Cross, Imran Masjid, Puroos Colony, Vinobanagara, Tumkur Town.

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2(f) Syed Hunnisa, D/o late Mohammed Hussain, Aged about 37 years, W/o Fariyaz, R/o Indiranagara, Bukkapatna, Sira Town, Tumkur Dist.

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2(g) Sajeeda, D/o late Mohammed Hussain, W/o Mohammed Showkath, Aged about 35 years, R/o Kharadi Mohalla, Sira Town. 2(h) Mubeeunnisa, D/o late Mohammed Hussain, W/o Mohammed Abazal, Aged about 33 years, R/o Kharadi Mohalla, Sira Town. …. Appellants. (By M.K.Bhaskaraiah, Adv.) And: Habeeb Pasha, S/o late Mohammed Dastagir, Aged about 63 years, R/a No.3289, Old Division No.II, Present Ward No.11, Assessment No.663/633, R/o Kharadi Mohalla, Sira Town – 572 137. …. Respondent.

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This Regular Second Appeal is filed under Section 100 of CPC against the judgment and decree dated 14.1.2011 in R.A.No.28/2010 on the file of the Senior Civil Judge at Sira, etc.

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This Regular Second Appeal coming on for Orders this day, the Court passed the following:

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JUDGMENT

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The appellants are the defendants in O.S.No.177/2006 on the

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file of the Civil Judge (Jr.Dn.) and JMFC, Sira and the respondent is the plaintiff. The plaintiff filed the suit for a declaration that he is the owner of suit 'A' and 'B' schedule properties and for delivery of possession of 'B' schedule property in his favour. The trial Court partly decreed the suit declaring that the plaintiff is the owner in possession of 'A' schedule property. Further, it has granted permanent injunction restraining the defendants from interfering with his possession and enjoyment of the said property.

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The plaintiff filed an appeal R.A.No.28/2010 on the file of

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the Senior Civil Judge, Sira challenging the judgment and decree of the trial Court to the extent of not decreeing the suit in respect of

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'B' schedule property. The Appellate Court dismissed the appeal on 14.1.2011.

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Plaintiff filed a review petition in No.1/2011 under Order

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47 Rule 1 of the Code of Civil Procedure ('CPC' for short) seeking

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review of the said judgment and decree. The Appellate Court

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allowed the review petition on 10.11.2011. The judgment and decree in R.A.No.28/2010 is modified. The judgment and decree of the trial Court with respect to 'B' schedule property is set aside and the suit of the plaintiff in respect of this property is also decreed. The defendants are directed to hand over possession of 'B' schedule property to the plaintiff.

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The appellants have filed this appeal under Section 100 of

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the CPC challenging the order of the Appellate Court in the said review petition dated 10.11.2011.

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Office has raised an objection with regard to

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maintainability of the appeal under Section 100 of CPC.

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I have heard the learned Counsel for the appellants.

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Order 47 Rule 1 of CPC provides for filing a review

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petition. Rule 4(1) of Order 47 states that where it appears to the Court that there is no sufficient ground for review, it shall reject the

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application. Similarly, Rule 4(2) of Order 47 states that where the Court is of the opinion that the application for review should be granted, it shall grant the same subject to the conditions mentioned in the proviso to the said sub-rule. Order 47 Rule 7(1) as substituted by Act No.104 of 1976 states that order of rejection of a

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review petition is not appealable. The said provision is as under:

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“ 7. Order of rejection not appealableObjections to order granting application.

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(1) An order of the Court rejecting the application shall not be appealable, but an order granting the application may be objected to at once by an appeal from the order granting the application or in an appeal from the decree or order finally passed or made in the suit.

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(2) xxxxx xxxxx xxxxx (3) xxxxx xxxxx xxxxx”

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It is clear that Order 47 Rule 7 gives right of appeal in all

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cases where order for review of judgment is made on any ground.

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Order 43 of CPC provides for filing of appeals from orders. Rule 1(w) of Order 43 provides for filing an appeal from an order under Rule 4(1) of Order 47 allowing an application for review. Thus, an order allowing review petition is appealable under this provision.

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The Karnataka High Court Rules, 1959 provides for the practice and procedure to be followed at the High Court. Chapter VI of these Rules relates to the classification of the appeals presented to the High Court. Rule 2(a) of this Chapter provides for filing of Regular Second Appeals i.e. second appeals arising out of original suits. Rule 2(b) is applicable for execution of second appeals and Rule 2(c) provides for filing of Miscellaneous Second Appeals. Rule 2(c) is as under:

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“ 2(c): Miscellaneous Second Appeals, that is, Second Appeals from any judgment, decree or order including any order as to costs, only, other than those falling under sub-clause (a) or (b).”

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A combined reading of Order 43 Rule 1(w) of the CPC and Rule 1(2)(c) of Chapter VI of the High Court Rules, 1959, would clearly indicate that a Miscellaneous Second Appeal has to be filed challenging an order passed under Order 47 Rule 4 of CPC allowing a review petition.

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In the instant case, the first Appellate Court has allowed the review petition whereby the judgment and decree passed in exercise of its appellate jurisdiction has been reviewed. I am of the view that Miscellaneous Second Appeal is maintainable as against this order. Therefore, office objection is sustained.

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At this stage, learned Counsel for the appellants submits

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that appellants may be permitted to convert this appeal into a Miscellaneous Second Appeal.

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The submission of the learned Counsel for the appellants

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is accepted and the appellants are permitted to convert this appeal into Miscellaneous Second Appeal under Order 43 Rule 1(w) of the

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CPC. No costs.

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Sd/JUDGE.

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BMM/-

Abdul Jabbar @ Ameer v. Habeeb Pasha

Case brief

What is this about?

What did the court decide?

Abdul Jabbar @ Ameer v. Habeeb Pasha

Case brief

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