Dismissed

Fakkirappa S/O Ningappa Chulaki v. Dayanand S/O Anantrao Patil

Karnataka HC14 Nov 2018RP/100132/2014

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed a review petition challenging an order that had quashed a previous appeal. The court held that review is not an appeal in disguise and cannot be used to reappreciate evidence or alter findings of fact, even if the lower court failed to consider specific documents regarding property ownership.

What did the court decide?

Petition dismissed; order dated 07.03.2014 in RSA No.5222/2009 remains upheld.

Fakkirappa S/O Ningappa Chulaki Vs Dayanand S/O Anantrao Patil — Partition | Karnataka HC (2018)

¶1

¶2

IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

¶3

DATED THIS THE 14^TH DAY OF NOVEMBER 2018

¶4

BEFORE

¶5

THE HON’BLE MR. JUSTICE B.A. PATIL

¶6

REVIEW PETITION NO.100132/2014 IN R.S.A.No.5222/2009 (DEC/INJ)

¶7

BETWEEN:

¶8

SRI.FAKKIRAPPA S/O. NINGAPPA CHULAKI AGE: 54 YEARS, OCC: COOLIE R/O. KRISHNAPUR 3^RD CROSS, OLD HUBLI, HUBBALLI-580024

¶9

1a. BHEEMAVVA,

¶10

W/O. FAKKIRAPPA CHULAKI AGE: 47 YEARS. OCC: HOUSEWIFE R/O. KRISHNAPUR,

¶11

3^RD CROSS, OLD HUBLI HUBBALLI 580 024.

¶12

1b. SHOBHA

¶13

D/O. FAKKIRAPPA CHULAKI

¶14

AGE: 26 YEARS, OCC: HOUSEWIFE R/O. KRISHNAPUR

¶15

3^RD CROSS, OLD HUBLI

¶16

HUBBALLI 580 024.

¶17

1c. NIRMALA

¶18

D/O. FAKKIRAPPA CHULAKI

¶19

AGE: 26 YEARS, OCC: HOUSEWIFE R/O. KRISHNAPUR,

¶20

3^RD CROSS, OLD HUBLI HUBBALLI 580 024.

¶21

¶22

1d. RENUKA

¶23

D/O. FAKKIRAPPA CHULAKI AGE: 22 YEARS, OCC: HOUSEWIFE R/O. KRISHNAPUR, 3^RD CROSS, OLD HUBLI HUBBALLI 580 024.

¶24

DYAMAPPA S/O. NINGAPPA CHULAKI AGE: 50 YEARS, OCC: COOLIE R/O. KRISHNAPUR, 3^RD CROSS OLD HUBLI, HUBBALLI-580024

¶25

... PETITIONERS

¶26

(BY SRI. S. M. KALWAD, ADVOCATE)

¶27

AND:

¶28

DAYANAND, S/O. ANANTRAO PATIL AGE: MAJOR, OCC: SERVICE R/O. CROSS NO.3, KRISHNAPUR OLD HUBLI, HUBBALLI 580 024

¶29

... RESPONDENT

¶30

(BY SRI. SUNIL S. DESAI, ADVOCATE)

¶31

¶32

THIS REVIEW PETITION IS FILED UNDER ORDER 47 RULE 1 R/W. SEC.114 OF THE CPC PRAYING TO REVIEW THE JUDGMENT DATED 07.03.2014 PASSED IN RSA NO.5222/2009 AND THEREBY DISMISS THE JUDGMENT AND DECREE DATED 19.12.2008 MADE IN R.A. NO.141/1998 PASSED BY THE COURT OF PRINCIPAL CIVIL JUDGE (SR.DN.), HUBBALLI AND CONSEQUENTLY UPHOLD THE JUDGMENT AND DECREE DATED 03.08.1998 MADE IN O.S.NO.601/1993 PASSED BY THE COURT OF III ADDL. CIVIL JUDGE (JR.DN.), HUBBALLI.

¶33

THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:

¶34

¶35

ORDER

¶36

The present petition has been filed by the petitioner/appellant praying this Court to review the judgment dated 07.03.2014 passed in RSA No.5222/2009 and thereby dismiss the judgment and decree dated 19.12.2008 passed in R.A.No.141/1998 by the Principal Civil Judge (Sr.Dn.), Hubballi and consequently upheld the decree dated 31.08.1998 passed in O.S.No.601/1993 by the III Addl. Civil Judge (Jr.Dn.), Hubballi..

¶37

I have heard Sri. S. M. Kalawad, learned

¶38

counsel for the petitioners and Sri. Sunil S. Desai, learned counsel for the respondents.

¶39

The gist of the case are that,

¶40

petitioners/plaintiffs filed a suit in O.S.NO.601/1993 for declaration that they are the owners of the suit schedule property by virtue of registered sale deed and registered Will and also sought for consequential relief of permanent injunction in respect of the suit schedule property bearing CTS No.2981 of Hubballi City measuring 110x30 sq.ft.

¶41

¶42

The Court below decreed the suit after considering the evidence and materials placed on record. Assailing the same the defendants preferred R.A.No.141/1998. The first Appellate Court also dismissed the appeal by confirming the judgment and decree passed by the trial Court. Against the said order, the defendant/respondent preferred RSA No.146/2000 before this Court. After hearing the parties, this Court allowed the appeal and remanded the matter back to the first Appellate Court with a direction to record additional evidence and to dispose of the matter in accordance with law. Thereafter,

¶43

the first Appellate Court after rehearing the petition allowed the appeal by setting aside the judgment and decree passed in O.S.No.601/1993. Against the said judgment of the first Appellate Court, the present petitioners preferred RSA No.5222/2009. This Court after hearing both sides, by the judgment dated 07.03.2014 dismissed the said appeal.

¶44

¶45

It is the contention of the learned counsel for

¶46

the petitioners that this Court without considering the finding given by the trial Court on issue No.2 with regard to purchasing of the property by unregistered company and without considering the purchase of property by the plaintiffs’ father, has wrongly given a finding and answered the issues wrongly and those specific issues were drawn in the instant case. He further submitted that this Court has not properly looked into the documents and though the plaintiffs/appellants were the owners of the suit schedule property, by ignoring the said aspect this Court has dismissed the appeal. He further submitted that this Court has not considered the provisions of transfer of Property Act to hold that Ex.P1 has been executed in the year 1949 and it cannot be disputed as it has remained unchallenged by the defendant/respondent. He further submitted that there is a mistake apparent on the face of the record that this Court without considering the material placed on record has wrongly passed the impugned judgment. On these

¶47

¶48

grounds he prayed to review the judgment passed in RSA No.5222/2009 dated 07.03.2014.

¶49

Per contra, learned counsel appearing for the respondent vehemently argued and submitted that the present petition is not maintainable and this Court can review its own order only if new and important evidence are discovered and if there is mistake or error apparent on the face of the record. He further submitted that review is not rehearing of the original matter. The power of review cannot be confused with the appellate power. If at all the appellant/petitioner is aggrieved, he is having right to prefer an appeal against the impugned judgment. When already findings have been given by this Court on the facts analysed by it, then under these circumstances the review petition is not maintainable. He further submitted that this Court cannot appreciate the evidence and to reach a different conclusion in this behalf. On these grounds, he prayed to dismiss the petition

¶50

¶51

In order to substantiate his arguments, the learned counsel relied upon the decision of the Hon’ble Supreme Court in the case of Kamlesh Verma Vs. Mayawati reported in (2013) 8 SCC 320 . He also relied upon a another decision of the Hon’ble Supreme Court in the case of Parsion Devi and Others Vs. Sumitri Devi and Others reported in (1997) 8 SCC 715.

¶52

I have carefully and cautiously gone through the submissions made by the learned counsel appearing at the bar and I have also gone through the records and the judgment passed by this Court.

¶53

It is well settled principle of law that a review petition can be filed only when there is a mistake apparent on the face of the record and if a new case has been found out from the facts of the case. It is also well established principle of law that it is not open to the Court to reappreciate the evidence and reach to a different conclusion, even if that is possible. in case if the review petition is allowed, the only point which the Court can

¶54

¶55

consider is whether there is any error apparent on the face of the record or for some reason akin thereto.

¶56

This proposition of law has been laid down in

¶57

the case of Kamlesh Verma (supra). It is observed in paragraphs 17 and 18 of the said judgment as under:

¶58

“17. In a review petition, it is not open to the Court to reappreciate the evidence and reach a different conclusion, even if that is possible. Conclusion arrived at on appreciation of evidence cannot be assailed in a review petition unless it is shown that there is an error apparent on the face of the record or for some reason akin thereto. This Court in Kerala SEB v. Hitech Electrothermics & Hydropower Ltd. held as under:

¶59

10. ………In a review petition it is not open to this Court to re-appreciate the evidence and reach a different conclusion, even if that is possible. Learned counsel for the Board at best sought to impress us that the correspondence exchanged between the parties did not support the conclusion reached by this Court. We are afraid such a submission cannot be permitted to be advanced in a review petition. The appreciation of evidence on record is fully within the domain of the appellate court. If on

¶60

¶61

appreciation of the evidence produced, the court records a finding of fact and reaches a conclusion, that conclusion cannot be assailed in a review petition unless it is shown that there is an error apparent on the face of the record or for some reason akin thereto. It has not been contended before us that there is any error apparent on the face of the record. To permit the review petitioner to argue on a question of appreciation of evidence would amount to converting a review petition into an appeal in disguise.’

¶62

18. Review is not rehearing of an original matter. The power of review cannot be confused with appellate power which enables a superior court to correct all errors committed by a subordinate court. A repetition of old and overruled argument is not enough to re-open concluded adjudications. This Court, in Jain Studios Ltd. v. Shin Satellite Public Co. Ltd ., [JT 2006 (7) SC 40 : (2006) 5 SCC 501], held as under:

¶63

“11. So far as the grievance of the applicant

¶64

on merits is concerned, the learned counsel for the opponent is right in submitting that virtually the applicant seeks the same relief which had been sought at the time of arguing the main matter and had been negatived. Once such a prayer had been refused, no review petition would lie which would convert

¶65

¶66

rehearing of the original matter. It is settled law that the power of review cannot be confused with appellate power which enables a superior court to correct all errors committed by a subordinate court. It is not rehearing of an original matter. A repetition of old and overruled argument is not enough to reopen concluded adjudications. The power of review can be exercised with extreme care, caution and circumspection and only in exceptional cases

¶67

12. When a prayer to appoint an arbitrator by the applicant herein had been made at the time when the arbitration petition was heard and was rejected, the same relief cannot be sought by an indirect method by filing a review petition. Such petition, in my opinion, is in the nature of ‘second innings’ which is impermissible and unwarranted and cannot be granted.”

¶68

It is further observed at para No.20.1 and 20.2 of

¶69

the said judgment as under:

¶70

“20.1. When the review will be maintainable:-

¶71

(i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not

¶72

¶73

within knowledge of the petitioner or could not be produced by him;

¶74

(ii) Mistake or error apparent on the face of the record;

¶75

(iii) Any other sufficient reason.

¶76

The words ‘any other sufficient reason’ has 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 & Ors., [(1955) 1 SCR 520], to mean ‘a reason sufficient on grounds at least analogous to those specified in the rule’. The same principles have been reiterated in Union of India v. Sandur Manganese & Iron Ores Ltd. & Ors., [JT 2013 (8) SC 275].

¶77

20.2. When the review will not be maintainable:-

¶78

(i) A repetition of old and overruled argument is not enough to reopen concluded adjudications.

¶79

(ii) Minor mistakes of inconsequential import.

¶80

(iii) Review proceedings cannot be equated with the original hearing of the case.

¶81

(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.

¶82

¶83

(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.

¶84

(vi) The mere possibility of two views on the subject cannot be a ground for review.

¶85

(vii) The error apparent on the face of the record should not be an error which has to be fished out and searched.

¶86

(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.

¶87

(ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived.”

¶88

In the above said paragraphs it has been clearly stated by the Hon’ble Supreme Court under what circumstances a review petition is maintainable before the Court which has passed the order.

¶89

Even Parsion Devi’ s case (supra), at paragraphs No.9 and 10, it has been observed as under:

¶90

¶91

“ 9. Under Order 47 Rule 1 CPC 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 I CPC. In exercise of the jurisdiction under Order 47 Rule 1 CPC it is not permissible for an erroneous decision to be "reheard and corrected". A review petition, it must be remembered has a limited purpose and cannot be allowed to be "an appeal in disguise.

¶92

10. Considered in the light of this settled position we find that Sharma, J. clearly over-stepped the jurisdiction vested in the court under Order 47 Rule 1 CPC. The observations of Sharma, J. that "accordingly, the order in question is reviewed and it is held that the decree in question was of composite nature wherein both mandatory and prohibitory injunctions were provided" and as such the case was covered by Article 182 and not Article 181, cannot be said to fall within the scope of Order 47 Rule 1 CPC. 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 only can be corrected by exercise of the review jurisdiction. While passing the impugned order, Sharma, J. found the order in Civil Revision

¶93

¶94

dated 25.4.1989 as an erroneous decision, though without saying so in so many words. Indeed, while passing the impugned order Sharma, J. did record that there was a mistake or an error apparent on the face of the record which was not of such a nature, "which had to be detected by a long drawn process of reasons" and proceeded to set at naught the order of Gupta, J. However, mechanical use of statutorily sanctified phrases cannot detract from the real import of the order passed in exercise of the review jurisdiction. Recourse to review petition in the facts and circumstances of the case was not permissible. The aggrieved judgment debtors could have approached the higher forum through appropriate proceedings to assail the order of Gupta, J. and get it set aside but it was not open to them to seek a "review" of the order of Gupta, J. on the grounds detailed in the review petition. In this view of the matter, we are of the opinion that the impugned order of Sharma, J. cannot be sustained and we accordingly accept this appeal and set aside the impugned order dated 6.3.1997.”

¶95

10. By going through the above said proposition of

¶96

law laid down by the Hon’ble Supreme Court, it is clear that a review petition can be maintained if there is a mistake apparent on the face of the record. It is also very

¶97

¶98

much clear that this Court cannot re-appreciate the evidence and come to a different conclusion. It is the specific contention of the learned counsel for the petitioners that this Court has not considered the sale deed executed in favour of the father of the plaintiffs during 1949 and without considering the finding given by the trial Court, has passed the impugned judgment and as such he prays to review the petition.

¶99

The said contention is not acceptable in the

¶100

light of the principles laid down by the Hon’ble Supreme Court in the cases quoted supra. Even though if I reappreciate the submissions made by the learned counsel for the petitioner, it is nothing but allowing the same relief which he has sought during the course of main arguments. In that light also the present petition is not maintainable. If at all the petitioners are aggrieved by the said judgment, as observed by the Hon’ble Supreme Court in the decisions quoted supra, they can approach the

¶101

¶102

higher forum through the appropriate proceedings assailing the judgment passed by this Court.

¶103

Keeping in view the above said facts and circumstances, I am of the considered opinion that the petitioners have not made out any good grounds. The petition is devoid of merit and is liable to be dismissed

¶104

Accordingly, the petition is dismissed.

¶105

Sd/JUDGE

¶106

gab

Fakkirappa S/O Ningappa Chulaki v. Dayanand S/O Anantrao Patil

Case brief

What is this about?

What did the court decide?

Fakkirappa S/O Ningappa Chulaki v. Dayanand S/O Anantrao Patil

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Shri. Rajesh Vs Smt. Sneha

The Managing Director Vs Kiran Kumar H.B

Smt Kavita @ Latha W/O T. Virupaksha Reddi Vs T. Virupaksha Reddi

Smt Sudha Mangesh Nadgouda Vs Smt Managala Vishwanath Nadgouda

Sushila @ Fakiravva W/O Gurappa Yaddoni, Vs Ningappa S/O Channabasappa Kankanameli

Smt. P.G. Gouri W/O Laxman Mullatti Vs Dr. Laxman Channappa Mullatti