Allowed

B. Suresh v. R. Sundara Murthy

Karnataka HC3 Feb 2023RP/762/2022

Case brief

AI extract

What is this about?

This High Court of Karnataka allowed a review petition filed under Order 47 Rule 1 CPC, condoning a 215-day delay. The court restored the earlier appeal to a roster bench for re-hearing on merits, citing errors in the commissioner report and non-hearing of counsel.

What did the court decide?

Delay condoned; Review petition allowed on payment of costs; Underlying appeal restored to roster bench for re-hearing on merits.

B. Suresh Vs R. Sundara Murthy — Property and Title | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 3^RD DAY OF FEBRUARY, 2023

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BEFORE

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THE HON'BLE MR. JUSTICE H.P. SANDESH

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REVIEW PETITION NO.762/2022 IN R.F.A.No.2089/2010

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BETWEEN:

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B. SURESH, S/O P. RUDRAPPA, AGED ABOUT 58 YEARS, R/AT NO.16/2, 7^TH CROSS, SUBBANA GARDEN, VIJAYANAGARA, BENGALURU-560 040.

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V. NARAYANA MURTHY, AGED ABOUT 52 YEARS, S/O K.V. CHALAPATHY, R/AT NO.16/1, 7^TH CROSS, 7^TH MAIN, SUBBANA GARDEN, VIJAYANAGARA, BENGALURU-560 040.

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C. PRASANNA, AGED ABOUT 47 YEARS, S/O K.V. CHALAPATHY, R/AT NO.16/1, 7^TH CROSS, 7^TH MAIN, SUBBANA GARDEN, VIJAYANAGARA, BENGALURU-560 040. REPRESENTED BY GPA HOLDER, V. NARAYANA MURTHY, AGED ABOUT 52 YEARS, S/O K.V. CHALAPATHY ... PETITIONERS (BY SRI DHYAN CHINNAPPA, SENIOR COUNSEL FOR SRI RAJASHEKAR S., ADVOCATE)

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AND:

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R. SUNDARA MURTHY, S/O RAMUNUJAM, AGED ABOUT 69 YEARS, RESIDING AT NO.16, 1^ST MAIN 2^ND STAGE, DOMLUR, BENGALURU-560 071.

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... RESPONDENT

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(BY SRI JANARDHANA G., ADVOCATE)

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THIS REVIEW PETITION IS FILED UNDER ORDER 47 RULE 1 R/W SECTION 114 OF CPC, PRAYING TO REVIEW JUDGMENT AND DECREE DATED 15.09.2021 PASSED BY THIS HON’BLE COURT IN RFA NO.2089/2010 AND THE APPEAL MAY KINDLY BE POSTED FOR RE-HEARING ON MERITS OF THE CASE.

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THIS REVIEW PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 18.01.2023, THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:

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O R D E R

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This review petition is filed praying this Court to pass an

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order to review the judgment and decree dated 15.09.2021 passed by this Court in R.F.A.No.2089/2010 and to post the appeal for re-hearing on merits of the case.

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The factual matrix of the case of the plaintiff before

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the Trial Court while filing the suit for declaration and possession claimed that the property bearing site Nos.1, 2 and 3 formed in Sy.No.371/4-5 of Marenahalli Village, Kempapura Agrahara, Bengaluru, measuring East to West 40 feet and North to South 41 feet, acquired under sale deed dated 15.12.1980 executed by

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one Thimmappa and Pillappa. It is contended that his vendor formed site Nos.1 to 9 in their property in Sy.No.371/4-5 and that site Nos.1, 2 and 3 were sold to the plaintiff under sale deed dated 15.12.1980. It is contended that his vendor left 15 feet road on the northern side and 20 feet road on the eastern side of schedule ‘A’ property and in support of his claim produced the hand sketch which is marked as Ex.P.6. It is contended that the entire area was not developed and as such, he also did not develop his aforesaid site Nos.1, 2 and 3 and left it vacant. It is his case that on the southern side of his property, property bearing Sy.No.267/3 is situated which belonged to Masalappa and his son Subbanna and during their lifetime they formed sites and sold all the sites except site No.16 measuring East to West 67 feet and North to South 70 feet and that the said site No.16 fell to the share of Subbanna’s son Seetharam in partition deed dated 15.03.1997. It is the claim of the plaintiff that the said Seetharam divided his aforesaid site No.16 to three portions and sold the same to defendant Nos.1 to 3 describing the same as north western portion, southern portion and north eastern portion. It is contended that sites formed in Sy.No.267/3 has nothing to do with the suit schedule property and they are

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different properties with different site numbers. It is contended that defendant No.1 started putting up construction in February 2000 and when the plaintiff noticed the same and on verification/inspection came to know that defendant No.1 has encroached plaint ‘A’ schedule property towards northern side by 35 feet, north to south and 24 feet east to west and the said encroached portion is morefully described in plaint ‘B’ schedule. The defendant Nos.2 and 3 started putting up construction and hence the plaintiff filed a suit not to put up the construction and the said encroached portion is described as ‘C’ schedule property. It is contended that taking advantage of the plaintiff’s absence, they encroached ‘B’ and ‘C’ schedule properties and they are in illegal occupation and hence sought for declaration and possession.

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The defendants entered their appearance and defendant No.1 pleaded that he had purchased the western portion of site No.16 measuring east to west 24 feet and north to south 35 feet and all the documents are transferred to his name. It is contended that the plaintiff claimed right in respect of site Nos.1 to 3 formed in site No.371/4-5 sold by Pillappa and Thimmaiah to three other different persons in the year 1970-

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1971, and as such, there is no property belonging to the plaintiff at the spot. The defendant No.1 also gave the particulars of three separate sale deeds executed by Thimmaiah and Pillappa in favour of the said three persons viz., Smt. Shylaja, Smt.Puttagangamma and Smt. Nagamma. Hence, took the contention that the suit is bad for non-joinder of necessary parties.

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The defendant Nos.2 and 3 in their written statement contended that the plaintiff has filed a suit by mentioning wrong boundaries of site Nos.1, 2 and 3 and the suit is filed in respect of the property of defendants, who are in possession of site formed in Sy.No.367/3 and Sy.No.371/4-5 is nowhere connected with the property bearing site No.16. It is contended that they have constructed the house by availing the loan and hence the plaintiff is not entitled for any relief.

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The main contention of the review petitioners in this review petition is that without affording an opportunity to the review petitioners, appeal was disposed of and in the month of August and September 2021, the counsel for the parties were not in a position to conduct the case by addressing their

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argument due to ill-health and they were indisposed on account of Covid-19 pandemic circumstances which was prevalent as at that point of time. This Court was pleased to take note of the absence of the counsel for the review petitioners herein and proceeded to hear the appeal on merits and disposed of the appeal by allowing the appeal, which ought to have been dismissed. Non-hearing the review petitioners has affected the outcome of the appeal, which has in turn adversely affected the rights and interest of the defendants in respect of their ownership and enjoyment of the property. It is contended that during Covid-19 pandemic, all final arguments could have been heard in the presence of the learned counsel for both parties. The appeal could not have been dismissed for non-appearance. Failure to hear the counsel for the petitioners before allowing the appeal is an error apparent on the face of the record and there is a need to review the impugned judgment.

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It is contended that even on merits also this Court ignoring the crucial aspects of deficiency in the title deed of the plaintiff has granted the relief of declaration of title in respect of alleged schedule ‘A’ property in its entirety by relying on the incorrect and inconsistent report submitted by the Court

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Commissioner. The Court Commissioner has included the public roads on eastern and northern portion and has shown the same as part and parcel of schedule ‘A’ property by including 20 feet width public road which is on the eastern side and 15 feet public road on the eastern side as part and parcel of schedule ‘A’ property and declaring the plaintiff as the owner of the same is an error apparent on the face of the record.

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The learned counsel submits that this Court has passed the decree for declaration on the basis of Exs.P.3, 4, 5, Ex.D24, 24(a) and 24(b). Ex.P.3 is the phodi sketch in respect of Sy.No.371/4-5. Ex.P.4 is the phodi sketch in respect of Sy.No.367/3. Ex.P.5 is the village map of Kempapura Agrahara. Ex.D.24 is the report submitted by the Court Commissioner and Ex.D.24(a) and 24(b) is the survey sketch prepared by the Court Commissioner. These documents are not the documents of title

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and cannot form basis for grant of declaration of title. It is contended that the evidence before the Court indicates that the vendors of the plaintiff have sold their site Nos.1, 2 and 3 in Sy.No.371/4-5 to one Puttagangamma, S. Shylaja and B.M. Anupama executing the sale deed on different dates. This fact could not be brought to the Court notice on account of non-

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appearance of counsel before this Court and the plaintiff has to obtain the declaration of title on his own evidence producing title deeds, which have not been produced and cannot get the relief of declaration on the weakness of the defendants. The very identification of the property is disputed and the Commissioner report is also not based on the survey records and ought to have measured both the survey numbers and given the report and the report is given based on only the sale deed produced by the plaintiff. Hence, the Trial Court not accepted the report of the Commissioner, but this Court while considering the appeal comes to the conclusion that the Commissioner report is accepted and the said observation is also erroneous and mistake is apparent on record. The plaintiff has not sought any relief of cancellation of the sale deeds within the prescribed period of limitation and the sale deeds which have been executed by the vendors have remained intact and now cannot contend that the review petitioners have encroached the property. This fact has been suppressed during the course of argument before this Court and hence it requires interference of this Court.

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The learned counsel also filed I.A.No.1/2022 to

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condone the delay of 215 days in filing the review petition,

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wherein it is contended that the review petitioners were not having the knowledge of posting of the matter and without hearing and not complying the principles of natural justice, the judgment was passed. It is contended that disposal of the case came to the knowledge of the petitioners when the execution petition was filed and notice was ordered. On service of notice they came to know about the same and on verification came to know about the disposal of the case. In compelling circumstances visited the advocate and verified the same and came to know that when the learned counsel was indisposed in the month of August and September 2021, the judgment was passed only on the basis of the arguments of the learned counsel for the respondent before this Court and hence the delay has to be condoned and the review petition has to be allowed.

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The learned counsel for the respondent has filed a detailed objection statement to the main petition as well as I.A. In the objection statement, the respondent contend that the review petition could be filed under the circumstance where discovery of new and important matter or evidence or the exercise of due diligence which was not within the knowledge or could not be produced when the judgment and decree was

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passed or on account of some mistake and error on the face of the record. This Court decided the matter on merits and hence no grounds are made out to review the judgment. The ground urged in the review petition to review the judgment that the judgment was passed without hearing the petitioners herein and that has occasioned an error apparent on the face of the record, is not a ground available for review and this Court has considered both oral and documentary evidence placed on record and passed the reasoned order and on the ground of nonhearing, the review cannot be considered. It is contended that they have served with notice in the appeal and engaged the counsel and the same has been reflected in the cause list and this Court granted sufficient opportunity. Even though the counsel did not appear on 02.09.2021, it was heard in part and posted the matter on 15.09.2021 for argument of the petitioners and thereafter only considered the matter on merits. The ground urged in the review petition is with regard to non-hearing of the review petitioners counsel and inspite of an opportunity was given, the said opportunity was not utilized and the matter has been considered based on merits. When their counsel names was also shown in the cause list, instead of approaching

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their counsel to find out the reason for non-appearance, if any, they have made an incorrect statement to that effect and this review petition is also filed through different counsel and not by the same counsel. On that ground also, review petition cannot be entertained and this Court passed a reasoned order and hence not made out any ground to invoke Order 47 of CPC for reviewing the same.

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The statement of objection is also filed to the delay application and it is contended that they have received notice in the execution petition on 16.08.2022 and even after receipt of notice also, there is a delay in filing the review petition and the same was filed on 31.10.2022 after 30 days and the contention is that they were unaware of the appeal decided by this Court on merits and only came to know about it on receipt of notice given in execution petition cannot be accepted. The learned counsel names was reflected in the cause list. If really such was the problem, the same advocates could have filed the review petition giving reasons for their non-appearance. The question would be whether they have made out sufficient ground to condone the delay in filing the review petition even after the date of knowledge of judgment since appeal has been filed beyond 30

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days after the said date and hence prayed the Court to dismiss the delay application and consequently dismiss the review petition.

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The learned counsel for the review petitioners in support of his argument relied upon the judgment of the Apex Court in the case of CHIKKAM KOTESWARA RAO v. CHIKKAM SUBBARAO AND OTHERS reported in AIR 1971 SC 1542 and

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the same is with regard to admissions must be clear in their meaning and no specific admission in the cross-examination of D.W.1 and there should not be any ambiguity in the admission and if there is any ambiguity, the same cannot be considered as ambiguity.

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The learned counsel also relied upon the judgment of this Court in the case of SMT. PARAMESHWARI BAI v. MUTHOJIRAO SCINDIA reported in AIR 1981 KAR 40 and contend that stray sentences elicited in the cross-examination could hardly be construed as admission. Before the right of a party can be considered to have been defeated on the basis of an alleged admission by him, the implication of the statement made by him must be clear and conclusive. There should not be

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any doubt or ambiguity about the alleged admission and to examine whether there is ambiguity in the admission, it would be necessary for the Court to read the other parts of the evidence and the stand taken by him in the pleadings. The learned counsel referring this judgment would contend that the admission in the pleading has got more value than the admission in oral evidence.

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The learned counsel relied upon the Division Bench judgment of this Court in the case of SMT. SUMA GOUDA @ ANITHA @ VASANTHI v. SRI M.K. POOVAIAH reported in 2010 (4) KCCR 2713 and brought to the notice of this Court paragraph No.35, wherein this Court held that admission made by a party in pleadings is conclusive but admission made in the evidence is only a piece of evidence unless it operates as estoppel. Even otherwise, admission in a pleading is binding only in the proceedings in which it is made and it may be shown to be wrong in subsequent proceedings.

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The learned counsel relying upon the said judgments would contend that this Court while disposing of the appeal taken note of the admission given by D.W.1 and the same

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cannot be a basis for passing the judgment and decree in a suit for declaration.

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Per contra, the learned counsel for the respondent in his argument would contend that in the case on hand, the advocate who did not appear before the Court has not filed the review petition and the review petition is filed by different advocate. The learned counsel relied upon the judgment of the Apex Court in the case of T.N. ELECTRICITY BOARD AND ANOTHER v. N. RAJU REDDIAR AND ANOTHER reported in AIR 1997 SC 1005 and brought to the notice of this Court the principles laid down in the judgment, wherein it is observed that unfortunately, it has become, in recent, time, a practice to file such review petitions as a routine; that too, with change of counsel, without obtaining consent of the advocate on record at earlier stage. This is not conducive to healthy practice of the Bar which has the responsibility to maintain the salutary practice of profession.

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The learned counsel also relied upon the judgment of the Apex Court in the case of AHMED SAHEB AND OTHERS v. SAYED ISMAIL reported in (2012) 8 SCC 516 and contend

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that admission made either in pleadings or orally is the best evidence. Needs no further corroboration. The learned counsel referring this judgment would contend that there is a specific admission by D.W.1 in the cross-examination that houses are constructed in the property of the plaintiff was relied upon by this Court while disposing of this appeal.

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The learned counsel relied upon the judgment of the Apex Court in the case of PARSION DEVI AND OTHERS v. SUMITRI DEVI AND OTHERS reported in (1997) 8 SCC 715, wherein the Apex Court held that in a case of review, mistake or error apparent on the face of the record, is one which is selfevident and does not require a process of reasoning. So rehearing the matter for detecting an error in the earlier decision and then correcting the same do not fall within the ambit of review jurisdiction. Review jurisdiction cannot be used as appellate jurisdiction.

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The learned counsel also relied upon the Division Bench judgment of this Court in the case of INDIRABAI AND

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ANOTHER v. PROF. SHYAMASUNDAR AND ANOTHER

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reported in 1988 (1) KAR.L.J.426 and brought to the notice of

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this Court Order 7 Rule 7 of CPC with regard to moulding of relief and the particularly relied upon paragraph No.27 wherein discussed with regard to Order 7 Rule 7 of CPC with regard to moulding of relief in view of the contention taken by the review petitioners that the property is not available to the extent which he has claimed for the relief of declaration and the Commissioner report is also clear that no such dimension of property is available and road is formed on the eastern side and northern side.

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Having heard the respective learned counsel and also

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on perusal of the material available on record, the points that arise for the consideration of this Court are:

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(i) Whether the review petitioners have made out a ground to condone the delay of 215 days in filing the review petition?

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(ii) Whether the review petitioners have made out a ground to exercise the power under Order 47 Rule 1 of CPC to review the judgment and decree passed in appeal?

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(iii) What Order?

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Point No.(i):

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The petitioners have sought for condonation of delay of 215 days in filing the review petition and in the application it is contended that they were not aware of the order passed by this Court in view of Covid-19 pandemic circumstances and taking advantage of the said circumstances, the learned counsel for the plaintiff argued the matter and misled the Court. The principles of natural justice has not been complied. In paragraph No.7, in so far as the reasons for delay is concerned, it is stated after filing of Execution case No.25514/2022 before the Court, notice was served on the petitioners and thereafter on making enquiry only came to know about the disposal of the RFA and hence there was a delay in filing the review petition and the delay is not intentional. Hence, the delay of 215 days has to be condoned.

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In the objection statement, the respondent has contended that the reason assigned for the delay cannot be accepted and this Court has given ample opportunity to the learned counsel for the petitioners and did not pass the order on 02.09.2021 itself and adjourned the matter to 15.09.2021 and thereafter only taking note of the non-appearance proceeded to

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pass the order. It is also contended that the reasons assigned that they came to know about the disposal of the case when the execution petition was filed cannot be accepted. The learned counsel was aware of the practice of listing the matter before the Court and cause list was also issued on the particular day and having knowledge with an intention to protract the proceedings, the review petition is filed after the delay.

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Having heard the respective learned counsel and also on perusal of the material available on record, the main contention of the review petitioners is that not given an opportunity and the said contention cannot be accepted. This Court taking note of the non-appearance of the review petitioners learned counsel on 02.09.2021, adjourned the matter to 15.09.2021 and on that day, when the counsel did not appear again, proceeded to dispose of the matter on merits. No doubt, it is the contention of the learned counsel for the review petitioners that after service of notice in execution petition only they came to know about the same and the said fact is not disputed by the learned counsel for the respondent in placing the material. It is contended that cause list was also issued and the learned counsel was having knowledge. In order to prove the

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fact that they were having knowledge, not placed any document. However, the earlier counsel appearing for the review petitioners has also filed an affidavit and he also stated in paragraph No.2 of the affidavit that when he came to know about the disposal of the case, he was shocked and surprised and submits that in the month of August and September 2021, he was suffering from illness and was advised to take complete rest and also produced the documents of medical certificate dated 01.09.2021 and 28.10.2022 regarding he took the treatment and the same is also objected to by filing the affidavit by the respondent contending that on the date of taking the treatment, the case was not listed and it was listed on 02.09.2021 and not on 01.09.2021 and also no material is placed that on 15.09.2021 also he was suffering from any ailment. The fact that his name was shown in the cause list is not in dispute and also the fact that both physical and video conferencing hearing was done on that day is also not in dispute. It is stated that he used to instruct the other counsel to appear before the Court on his behalf and also admitted the same in affidavit and when such being the case, I do not find any good ground with regard to not making any arrangements in this case also. However, when it is

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stated in the sworn affidavit by the advocate as well as appellants that they came to know about the disposal of the case on receipt of the notice in the execution petition, lenient view can be taken and substantial justice has to be done and not on technicality. Immediately after coming to know about the same though not filed within 30 days, but no longer delay in filing the petition immediately after coming to know about the same in execution petition and hence the delay of 215 days in filing the petition is condoned by allowing I.A.No.1/2022. Hence, I answer point No.(i) in the affirmative and condone the delay.

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Point No.(ii):

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The main contention of the review petitioners before this Court is that the order was passed without hearing the review petitioners and the principles of natural justice has not been complied. On perusal of the records, it discloses that the case was listed on 02.09.2021 and the review petitioners counsel were not present on that day and the matter was heard in part and posted the matter to 15.09.2021 for arguments of the review petitioners herein and on that day also, they have not appeared and argued the matter and hence the order has been passed. The contention of the learned counsel is that on that

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day, the learned counsel for respondent No.1 was indisposed due to ill-health. On perusal of the records of R.F.A.No.2089/2010, the counsel who was suffering from ill-health was appearing for respondent Nos.1 and 2 and one more advocate Sri B.G.Sriram was appearing for respondent No.3. Though it is contended that the counsel Sri Shashidhara was not keeping good health, no answer with regard to other counsel Sri B.G.Sriram appearing for petitioner No.3 in the appeal and this review petition is filed not only on behalf of respondent Nos.1 and 2 in the appeal, but on behalf of respondent No.3 also. The earlier counsel has filed an affidavit before the Court that he was not keeping well and also produced the document of medical certificate and no doubt, the medical certificate is with regard to 01.09.2021 and on that day, the matter was not listed. The matter was listed on 02.09.2021. He has produced the medical certificate dated 28.10.2022, wherein it is stated that he had taken the treatment from the hospital on 01.09.2021 as an outpatient and he was advised treatment with physiotherapy for four weeks and to be reviewed later. The fact that the matter was listed on 02.09.2021 is not in dispute and also the matter was adjourned to 15.09.2021 is also not in dispute. In paragraph No.5 of the affidavit of the counsel,

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he has stated when the matter was listed on 15.09.2021, the same was unnoticed and he was completely unaware of the same. But in the affidavit he says that in some of the matters where hearing date was given, he got the same attended through other advocates known to him who are his friends. But he did not state anything about the issuance of cause list on 02.09.2021 and also on 15.09.2021 and no proper explanation is given in the affidavit. When he was able to attend his cases through other advocates known to him, what prevented him in not giving instructions to his friends to attend the case or to seek for an adjournment, nothing is stated. I have already pointed out that it is not his case that he did not receive the cause list pertaining to the appeal. On 02.09.2021 and 15.09.2021, he did not visit any hospital and to that effect, he has not produced any documents and also in terms of medical certificate dated 28.10.2022, though he was advised treatment with physiotherapy for four weeks, no such document is produced before the Court for having taken physiotherapy treatment. This affidavit of advocate is filed subsequent to the filing of the objection to the main petition and also the delay application. But the fact that he was not heard when the appeal was

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disposed of is not in dispute. With regard to his absence is concerned, he has not produced any relevant material before the Court except the certificate.

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The second ground urged before this Court is that he was not heard in the matter amounts to an error apparent on the face of the record. The said contention cannot be accepted and non-appearance before the Court is not a ground for review and the same is not apparent on record as contended by the learned counsel for the review petitioners. The fact that the matter was heard in his absence is not in dispute. The main contention is that on merits also he is having a case. It has to be noted that it is the case of the respondents before the Trial Court that he had purchased the sites based on the sale deed dated 05.12.1980 and claimed the relief of declaration and possession in respect of ‘B’ and ‘C’ schedule property and he had purchased the property at site Nos.1, 2 and 3 in Sy.No.371/4-5 of Marenahalli Village from Pillappa and Thimmaiah. It is the claim of the review petitioners before the Trial Court that one Seetharam sold western portion of site No.16 in Sy.No.367/3 on 28.01.1999 to Sharada Naik and the said Seetharam also sold western portion of site No.16 in the same survey number to

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defendant No.1 as per sale deed dated 09.04.1999 and the said Sharada Naik sold eastern portion of site No.16 in Sy.No.367/3 of Marenahalli Village to defendant Nos.2 and 3. Hence, it is clear that both the plaintiff and the defendants are claiming right in respect of different sites, which have been formed in Sy.Nos.371/4-5 and 367/3. It is also the claim of the plaintiff that Sy.No.367/3 is situated on the southern side of the plaintiff’s property and the defendants claim that their property is nowhere concerned to the claim of the plaintiff.

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The Commissioner was also appointed before the Trial Court. On perusal of the order of appointment of Commissioner, it is very clear that the plaintiff and the defendants properties are different and they are formed admittedly, in different survey numbers. The said survey numbers are situated adjacent to each other, as can be seen from village map. Sy.No.371/4-5 is situated towards northern side of Sy.No.367/3. The Commissioner was appointed after leading the evidence for the parties. The case of the defendants is that the plaintiff has not identified the property which he has purchased and also their claim is that his property is not existing as the vendors of the plaintiff sold the same to other three

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persons. Therefore, the situation or location of the suit property in which survey number the suit property is actually situated, can only by ascertained by actual measurement of two said survey numbers as per their extent in the revenue records. The same cannot be had by oral and documentary evidence and hence allowed the Commissioner application to locate the suit property and to find out the encroachment, if any, and to properly appreciate both oral and documentary evidence placed on record, the Commissioner report is necessary. The record discloses that the Commissioner submitted the report and while disposing of the appeal by this Court in the absence of arguments by the review petitioners counsel, this Court made an observation in page No.14 that the Commissioner report is not disputed and the said observation is erroneous and the same is error apparent on record since the Commissioner report was objected and the Commissioner also examined. The Trial Court while passing the order on Commissioner report, in paragraph No.10, made an observation that the surveyor has found out his own innovative method of showing the property as a disputed area and conducted survey on the basis of the sale deeds produced by the parties. The Commissioner was appointed to

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survey both Sy.Nos.371/4-5 and 367/3 of Marenahalli Village and no dispute that both are adjacent properties. There must be a clear finding in the Commissioner report with regard to Sy.Nos.371/4-5 and 367/3 and the Trial Court did not accept the Commissioner report since an observation is made that only on the basis of sale deed, he has demarcated the sites.

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It is important to note that it is the contention of the defendants that the vendors of the plaintiff have sold the property of said site number in favour of three persons, Shylaja, Puttagangamma and Anupama W/o Krishnaswamy and this issue has not been touched by this Court while disposing of the appeal since the review petitioners have not argued the matter and given any assistance to this Court. When the said issue has not been touched by this Court and no doubt, discussed in detail with regard to the evidence of the witnesses and counsel have also relied upon certain judgments with regard to admissibility of admission given by parties during the course of evidence. This aspect cannot be decided in a review petition with regard to admission whether the same is based on pleadings or on the oral evidence and the same can be considered while considering the appeal on merits. It is also important to note that the relief

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sought in the suit is for declaration and possession on the ground that the defendants have encroached upon the property of the plaintiff and constructed the house. With regard to the Commissioner report is concerned, it requires to be considered while deciding the matter on merits. I have already pointed out that this Court comes to the conclusion that the Commissioner report is not disputed as observed in the order and having taken note of the material on record, when there is an error apparent on the face of the record with regard to the Commissioner report and the same is observed that the Commissioner report is not disputed and when the Commissioner report is disputed and witnesses have been examined before the Court, it requires exercising of the powers under Order 47 Rule 1 of CPC to set aside the order and to restore the appeal for fresh consideration.

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The real dispute between the parties has to be adjudicated in RFA appreciating both question of fact and question of law. The reasons are assigned in the review petition regarding non-appearance of the counsel and the counsel was suffering from illness and the same has not been substantiated as observed in the order and the affidavit is filed by the counsel appearing for respondent Nos.1 and 2 and not by respondent

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No.3, who is also a review petitioner in the matter and also the certificates which have been produced with regard to ill-health is concerned, not inspires the confidence of this Court. Inspite of the matter was listed twice on 02.09.2021 and 15.09.2021, the learned counsel for the review petitioners who engaged the different counsel did not assist the Court to decide the matter on merits. In order to meet the ends of justice, an opportunity has to be given to both the parties and hence the review petitioners are liable to pay the cost since the matter was disposed of in 2021 and the review petition is filed in 2022 claiming that they came to know about the same on receipt of the execution petition notice inspite of cause list was issued. The Court has to take note of the date of the order and date of filing of review petition and also made the Court to consider the matter twice to decide the issue involved between the parties for the absence of respective counsel.

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In view of the discussions made above, I pass the

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following:

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ORDER

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(i) The delay of 215 days in filing the review petition is condoned.

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(ii) The review petition is allowed on payment of cost of Rs.30,000/-. Out of the said amount, an amount of Rs.20,000/- is payable to the respondent and remaining Rs.10,000/- shall vest with the State.

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(iii) R.F.A.No.2089/2010 is restored on condition of payment of cost to the appellant in R.F.A.No.2089/2010 within two weeks and produce the receipt before the Registry for having paid the amount of Rs.20,000/- to the respondent of this review petition and also deposit remaining Rs.10,000/- with the Registry. On payment of cost only R.F.A.No.2089/2010 is restored.

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(iv) On restoration of the appeal, list the matter before the roster Bench along with both the Court records.

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Sd/-

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JUDGE

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B. Suresh v. R. Sundara Murthy

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B. Suresh v. R. Sundara Murthy

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