Dismissed

Mr a Viswanath v. Mr Mahesh N

Karnataka HC25 Mar 2022WP/33053/2017

Case brief

AI extract

What is this about?

Petitioners filed a writ petition under Article 227 challenging the dismissal of their review application and amendment plea in a partition suit. The High Court held the alleged mistake was an error in appreciation of evidence, not an error apparent on the face of the record, and dismissed the petition.

What did the court decide?

No relief granted; the writ petition stands dismissed as devoid of merit.

Mr a Viswanath Vs Mr Mahesh N — Partition | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 25^TH DAY OF MARCH, 2022

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BEFORE

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THE HON’BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY

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WRIT PETITION No.33053 OF 2017 (GM-CPC)

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BETWEEN:

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Mr. A. Viswanath, Aged about 65 years, S/o. Late Mr. Appajappa M., 201, Orchid Block, Pavani Residency Apartment Puttenhalli, Yelahanka Bangalore – 560 064.

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Dr. A. Vasanth Kumar, Aged about 81 years, S/o. Late Appajappa M. No.191, Eccleshall Road, Stafford St. 16 IPD England, United Kingdom

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Represented by his Power of Attorney by Mr. A Viswanath The 1^st petitioner, vide power Of Attorney dt.19^th February 2002; .. Petitioners (By Sri. Sibu Gopinathan, for Sri. Balaram M.L., Advocate)

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AND:

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Mr. Mahesh N. Aged about 40 years S/o. A Natraj, 952/A, 1^st Floor, Sundar Mahal Complex 5^th Cross, 1^st Main, Girinagar,

W.P.No.33053/2017

Bangalore – 560 085.

Mr. A. Natraj Aged about 77 years, S/o. late Mr. Appajappa M No.127, 7^th Main, 4^th Block, Jayanagar, Bangalore- 560 01.

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Dr. A. Kalapana Udya Shanker, Aged about 60 years, D/o. Late Appajappa M No.17, Beckett-Close Irvington NY – 10533, New York USA

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Dr.A. Nirmala Rajeswaran Aged about 70 years, D/o. Late Appajappa M No.58, Shore Wood Point Danville, Illinois-51832, USA.

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Ms. Sneha, Aged about 27 years, D/o.A. Natraj No.127, 7^th Main, 4^th Block, Jayanagar, Bangalore – 560 011.

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Smt. Nandini Anand Aged about 42 years, W/o. snp Devaru @ MV Anand D/o. A Natraj, No.81, Flat No.3-D Sushobit Residency, Opp. Ambedkar Stadium, Basaveswaranagar Bangalore – 560 079.

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.. Respondents (By Sri.D.G. Chinnappa Gowda, Advocate for R-2 & R-5; Sri.B.R. Krishna, Advocate for R-3; R-6 – served; V/o. dt.12-12-2017 – service to R-4 is accepted; V/o.dt.14-06-2018 service to R-1 – held sufficient)

W.P.No.33053/2017

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This Writ Petition is filed under Article 227 of the Constitution of India, praying to pass an order setting aside the order dated 29-05-2017, of the learned LVII Additional City Civil Judge at Bangalore in FDP No.25002/2011 (Annexure A), dismissing the Review Application (Annexure K)filed by the petitioner under Order XLVII Rule 1 read with Section 114 of the Code of Civil Procedure and consequently, pass an order setting aside the order dt.08.07.2016 of the learned LVII Additional City Civil Judge at Bangalore in FDP No.25002/2011 vide Annexure B dismissing the application under Order VI Rule 17 of the CPC (Annexure H); etc.

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This Writ Petition coming on for Preliminary Hearing in ‘B’ Group, through Physical Hearing/Video Conferencing Hearing, this day, the Court made the following:

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O R D E R

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The present petitioners as the petitioners in FDP No.25002/2011, in the Court of the 57^th Additional City Civil and Sessions Judge, Mayo Hall Unit, Bengaluru, (hereinafter for brevity referred to as “FDP Court”) have filed an I.A. under Order VI, Rule 17 read with Section 151 of the Code of Civil Procedure, 1908, (hereinafter for brevity referred to as “the CPC”) seeking permission to amend the plaint by incorporating a paragraph as paragraph No.4(a).

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The FDP Court, under its order dated 08-07-2016 dismissed the said application. The very same applicants

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W.P.No.33053/2017 4

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(petitioners herein) preferred a review petition under Section 114 read with Order XLVII, Rule 1 of the CPC, which also came to be dismissed by the order dated 29-05-2017. Aggrieved by the same, the petitioners in the review petition who were the applicants in the interlocutory application filed under Order VI Rule 17 of the CPC in the FDP Court, have filed this writ petition.

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The argument of the learned counsel for the petitioners is that, the FDP Court, since its inception regarding the rank of the petitioners before it, has mistaken and confused as though they were plaintiffs. Accordingly, it dealt with the interlocutory application filed under Order VI, Rule 17 of the CPC also as though it was an application filed by the plaintiffs. Thus, the subsequent interpretation and reasoning given by it in the impugned order has resulted into an erroneous order. Surprisingly,

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the same Court even in the review petition also carried on

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the very same basic mistake which has resulted in an erroneous order in the form of dismissal of the review

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W.P.No.33053/2017

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petition, as such, the said order in the review petition deserves to be set aside.

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Learned counsel for Respondents No.2 and 5 in his very brief arguments submitted that, as on today, there is no preliminary decree at all, as such, either the review petition or the writ petition in no manner deserve any entertainment by this Court.

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Under Order XLVII, Rule 1 of the CPC , a review petition can be entertained only upon three grounds. i.e.

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(i) On discovery of a new and important evidence which after exercise of due diligence, was not within the knowledge of the review petitioners or could not be produced by them at the time when the decree was passed;

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(ii) When the order was made, some mistake or error apparent on the face of the record has crept in;

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(iii) For any other sufficient cause.

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In the instant case, according to the petitioners,

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the error apparent on the face of the record is that the FDP

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W.P.No.33053/2017

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court misconceived the applicants in the interlocutory application under Order VI, Rule 17 of the CPC as the plaintiffs instead of the petitioners in the FDP. Thus, the said mistake has led to a wrong interpretation and erroneous analysis of the merits of the case, as such, the review is warranted.

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Learned counsel for the petitioners drew the attention of this Court to the order passed on the interlocutory application under Order VI, Rule 17 of the CPC dated 08-07-2016 in FDP Court and contended that when the Court, by stating that the applicants had filed a suit for partition and separate possession, it has taken the applicants as the plaintiffs when in fact it was not correct. Thus, the entire analysis made by it on the merit of the application has gone in a wrong direction resulting in dismissal of the petition. In the said process, it also made the applicants to once again prove that they are the Class I legal heirs when in fact there was a conclusive finding in that regard in the previous round of litigation. According to

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W.P.No.33053/2017

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the learned counsel for the petitioners, the same error was continued even in the review petition also.

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I am not agreeable to the said contention of the learned counsel for the petitioners, for the reason that, even if it is assumed that the FDP Court in its impugned order passed on the interlocutory application filed under Order VI, Rule 17 of the CPC, has mistook the applicants therein as the plaintiffs in the matter and has analysed the merit of the application accordingly, still, the said alleged error would only be an alleged error in the appreciation of the material before it and on the matters touching the merit of the case. Thus, the rectification of the said error would

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require nothing but re-analysis and re-appreciation of the entire materials on record. Thus, it would be nothing but exercisal of the power of the revisional Court or the appellate Court. Thus, the alleged error cannot be called as an error apparent on the face of the record. Since the scope of the review petition is very limited, as viewed above, and since the Review Court in its detailed order also

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W.P.No.33053/2017

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has noticed that the contention of the petitioners in review would not fall in any one of the requirements of the Order XLVII, Rule 1 of the CPC, and has proceeded to pass appropriate order, I do not find any reason to interfere in the same.

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Accordingly, the writ petition stands dismissed as devoid of merit.

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BMV*

Mr a Viswanath v. Mr Mahesh N

Case brief

What is this about?

What did the court decide?

Mr a Viswanath v. Mr Mahesh N

Case brief

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What did the court decide?

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