Allowed

Smt v. Kamala v Bruhath Bangalore

Karnataka HC23 Feb 2021RP/155/2019

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed a review petition filed under Section 114 CPC. The court found apparent errors in the impugned order regarding the petitioner's stake in a civil suit and prejudicial observations against the petitioner. Delay was condoned due to family relations and illness, and the original writ petition was recalled for fresh consideration.

What did the court decide?

The review petition was allowed; the impugned order was recalled; W.P. No.14685/2014 was posted before the assigned Bench for fresh consideration.

Smt v Kamala Vs Bruhath Bangalore — Writ and Judicial Review | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 23^RD DAY OF FEBRUARY 2021

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BEFORE

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THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV

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REVIEW PETITION No.155/2019 IN

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WRIT PETITION No.14685/2014 (LB-BMP)

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BETWEEN:

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Smt. V. Kamala,

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Wife of Shri M. Venkatesh,

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Aged 61 years.

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Shri M. Venkatesh, Son of Late M.M. Muniswamappa, Aged 70 years.

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Residing at No.1107, 13^th Cross, 2^nd Stage, Indiranagar, Bangalore - 560 03. ... Petitioners

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(By Sri Arun B.M., Advocate)

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AND:

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Bruhath Bangalore Mahanagara Palike, N.R. Square, Bangalore - 560 001, By its Commissioner.

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The Commissioner, Bruhath Bangalore Mahanagara Palike, N.R. Square, Bangalore - 560 001.

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Assistant Executive Engineer, Bruhath Bangalore Mahanagara Palike, Maruthi Sevanagara Sub-Division, Bangalore.

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Shri V. Chandrashekar, Son of Late M. Venkataramaiah, Aged 60 years, Residing at No.9/1A, Grover Road, Sarvagnanagar, Cox Town, Bangalore - 560 005.

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V. Vasudev, Since dead by LR's

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a) Smt. Geetha, Wife of Late V. Vasudev, Aged 50 years.

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b) Ms. V.Zainkar, Daughter of Late V. Vasudev, Aged 24 years.

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c) Master V. Vinay, Son of Late V. Vasudev, Aged 19 years.

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All are residing at No.9/1, Grover Road, Sarvagnanagar, Cox Town, Bengaluru - 560 005.

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Shri V. Vijayakumar, Son of late M. Venkataramaiah, Aged 50 years, Residing at No.9, Grover Road, Sarvagnanagar, Cox Town, Bengaluru - 560 005.

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Sri Satyanarayana Educational Society, (Society registered under Karnataka Societies Registration Act, 1960), Having its office at No.10/4, Ramamurthynagar Main Road, Banaswadi, Bangalore - 560 033, Represented by its Founder Secretary, Mr. T. Venugopal, Son of late Thimmaiah. ... Respondents

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(By Sri V. Sreenidhi, Advocate for R1 to R3; Sri Ganesh Bhat Y.H., Advocate for R4, R5(a & c), R6 and R7)

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This Review Petition is filed under Section 114 read with Order 47 Rule 1 of the CPC, praying to review the order dated 08.11.2017 passed by this Hon'ble Court in W.P. No.14685/2014 and etc.

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This Review Petition coming on for orders, this day the Court made the following:

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ORDER

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The petitioners have filed the present petition under Section 114 r/w Order 47 Rule 1 CPC, seeking for review of

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the order dated 08.11.2017, passed by this court in W.P.No.14685/2014.

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The case as made out by the petitioners is that Writ Petition No.14685/2014 was filed seeking for direction

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to the respondent-BBMP to implement the orders at Annexure-'U' dated 13.10.2011 and Annexure-'V' dated

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18.11.2011, passed by the Assistant Executive Engineer for removing the encroachment and dismantling the compound and gates stated to have been put up illegally.

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The learned counsel for petitioners submits that as per the order, review of which has been sought, petition has been dismissed while reserving liberty to the petitioners to avail remedy before the Civil Court either by joining the issue with respondent nos.4, 5 and 6, or by seeking leave to appeal against the said judgment and decree in O.S.No.7544/2011.

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It is further pointed out that the court has proceeded on the premise that petitioner no.1 and three brothers had approached the Civil Court through respondent no.7 in O.S.No.7544/2011, which had been decreed. Such premise, it is stated, amounts to an error apparent on the face of the record as petitioner was not a party to the lis and it was only the Lessee-respondent no.7 and other brothers of the petitioner who were parties in the said suit.

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It is further contended that the observation at Para

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4 of the impugned order which reads as follows:

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"The respondent-BBMP has given the

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aforesaid communication dated 13.10.2011 to the parties, but the BBMP has nothing to do with the matter."

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It is the said observation which constituted an error

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apparent on the face of the record as the petitioners were relying upon the direction of 13.10.2011 and were seeking enforcement of the same while the court has brushed it aside by stating that BBMP has nothing to do with the same. It is further submitted that even if private rights are involved, the statutory duty exists and public authorities can be directed to enforce statutory duties.

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The learned counsel for petitioners has placed reliance on the judgment in the case of The Municipal Corporation for Greater Bombay and Another v. The Advance Builders (India) Private Ltd. and Others

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reported in [(1971) 3 SCC 381] and draws attention to the observations at Para 12 of the judgment.

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It is further contended that the apparent errors on

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record strikes the reader on a plane reading of the order and does not require any detailed hearing. It is submitted that by virtue of the order, BBMP has in effect, being injuncted from proceeding further with the proceedings as reflected at Annexure-'U' and 'V'.

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The learned counsel for petitioners further submits

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that conservative view ought not to be adopted while condoning delay as substantive justice is involved and relies on the judgment in the case of Collector, Land Acquisition, Anantnag and Another v. Ms.Katui and Others reported in [(1987) 2 SCC 107] and draws attention to the observation at Para 3. It is contended that refusing to condone the delay ought not to result in meritorious matter being thrown out at the very threshold and cause of justice being defeated while relying on the observation of the Apex Court referred to above. It is stated

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that the consequence of condonation of delay would only result in case being decided on its merits after hearing the parties. Reliance is placed on the judgment in the case of N.Balakrishnan v. M. Krishnamurthy reported in [(1998) 7 SCC 123] and attention is drawn to the observation at Para 11 to state that the court ought to look into as to whether the party seeking the review is resorting to dilatory tactics and as to whether there are any intervening circumstances. Attention is also drawn to Paragraphs 12 and 13 and it is contended that the court ought to be satisfied that the delay was not deliberate. It is submitted that the delay in filing the review petition is to be attributed to parties attempting for settlement as the petitioners and respondents were related to each other and also the illness of 5th respondent eventually leading to his death and also the illness of the sister Hemavathi. Hence, it is contended that delay ought to be condoned and petition be allowed.

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The learned counsel for respondent nos.4 to 7

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have however contended that no sufficient cause is made

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out for condonation of delay and more particularly as regards to the merits of the matter while placing reliance on the judgment of the Apex Court in the case of Shri Ram Sahu (Dead) through L.R.s and Others v. Vinod Kumar Rawat and Others reported in [2020 (2) Kar.L.R 887 (SC)].

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It is contended that power of review cannot be equated to power of appeal and exercise of jurisdiction should be strictly confined to fulfillment of legal criteria as made out under Order 47 Rule 1 CPC. A detailed reference is made to various judgments referred to in the aforestated case at Paragraphs 6 to 8. It is submitted that there is no apparent errors calling for review of the order more so when the court has merely directed the petitioners to go before the Civil Court.

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The only point for consideration is as to whether grounds under Order 47 Rule 1 CPC are made out calling for review of the order as sought for ?

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The petitioner is required to point out the error apparent and insofar as the contention of the petitioner despite having made out various grounds, the two grounds made out seeking for review of the order are: the premise that petitioner is a party to the dispute pending in O.S.No.7544/2011 along with his brothers is an error apparent and that the respondent-BBMP has addressed the communication on 13.10.2011 with respect to which BBMP has nothing to do with the matter.

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The judgments relied on by the petitioners

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counsel as well as respondents counsel insofar as scope of power under Order 47 Rule 1 CPC, is a reiteration of the settled position of law insofar as the error must be one that is apparent on the face of the record and that noticing such error from the record does not require a detailed enquiry.

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It is further to be kept in mind while exercising the power of review, the court is not sitting as a court of appeal and looking into the correctness of the view taken in the order.

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In the present case, it is noticed that the court while coming to the conclusion has proceeded on the premise that O.S.No.7544/2011 was a dispute between the petitioner and three brothers through respondent no.7. Such a premise is prima-facie erroneous as the dispute in the present case is between the petitioner and other brothers on the petitioner's complaint to the respondentBBMP to take action, while the suit in O.S.No.7544/2011 was between the 7th respondent who is a Lessee, the officials of BBMP and other brothers excluding the petitioner. In light of the above facts, the petitioner not being a party to the said proceedings, as to whether the same would operate as a legal obstacle to consider the relief in the form of direction to the respondent-BBMP has not been taken note of at all.

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The observation made by the court that the communication dated 13.10.2011 of the respondent-BBMP addressed to the parties, but the BBMP has nothing to do with the matter, is also an observation that has the effect of

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prejudicing the petitioner in a petition instituted at his instance seeking to enforce the direction of 13.10.2011. In effect, the observation made by the court amounts to watering down the effect of communication dated 13.10.2011 without noting that the petitioner was seeking to enforce the same. It could be stated that the above two observations of the court could be construed to be error apparent on the face of the record which can be discerned on a bare perusal of the order without any detailed enquiry.

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Insofar as the delay is concerned, it ought to be noted that the matter is one between the members of the family who are related and the fact that there may have been attempts for settlement as asserted need not be brushed aside. Insofar as the death of 5th respondent, the said fact is admitted and so also the illness of the sister, which are factors that may have resulted in delay which should be construed leniently looking into the nature of dispute.

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It is also settled position that delay when sought

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to be condoned should not be construed with mathematical precision and looking into the merits of the review petition on hand, the condonation of delay would only result in the lis being taken up on merits more so, in light of the submission that the matter was at preliminary stage when it came to be decided when the application of the petitioner for bringing the legal representatives of respondent no.5 on record was still pending and also noticing the order sheet dated 22.03.2016, which had directed the respondent to produce katha bifurcation records and plan sanction records in respect of respondent nos.4, 5, and 6. It is to be noted that when the matter was taken up for disposal, this aspect of the respondent-corporation having to place such records as noticed above was not taken note of. Clearly, the effect of the order allowing the order to stand would result in foreclosing any further action by the respondent-BBMP on the basis of civil dispute to which the petitioner is not a party and accordingly there would be failure of justice if the order would be allowed to remain.

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It is made clear that the court is merely considering as to whether the review petition deserves to be allowed and any observation made herein cannot be construed to be conclusive finding as to the merits of the matter.

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Accordingly, the petition is allowed. The order in W.P.No.14685/2014 is recalled and W.P.No.14685/2014 is to be posted before the assigned Bench for fresh consideration.

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Sd/JUDGE

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Np/-

Smt v. Kamala v Bruhath Bangalore

Case brief

What is this about?

What did the court decide?

Smt v. Kamala v Bruhath Bangalore

Case brief

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