Shri. Bandopanth S/O. Bharma Badavanache, Vs Smt. Shailaja

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 4^TH DAY OF APRIL, 2025 BEFORE

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THE HON'BLE MR. JUSTICE C.M. POONACHA REVIEW PETITION NO.100157 OF 2024

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BETWEEN:

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SHRI. BANDOPANTH S/O. BHARMA BADAVANACHE, AGE. 73 YEARS, OCC. BUSINESS, R/O. 4196/1A/1, KACHERI ROAD, BELAGAVI-590001.

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SHRI. PRASHANT S/O. BANDOPANTH, AGE. 48 YEARS, OCC. BUSINESS, R/O. 4196/1A/1, KACHERI ROAD, BELAGAVI-590001.

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SHRI. PRAMOD S/O. BANDOPANTH BADAVANACHE, AGE. 48 YEARS, OCC. BUSINESS, R/O. 4196/1A/1, KACHERI ROAD, BELAGAVI-590001.

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…PETITIONERS

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(BY SRI PRAVEENKUMAR G.KULKARNI, ADVOCATE)

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Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: High Court of Karnataka

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AND:

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SMT. SHAILAJA W/O. LAXMIKANT KAMAT SINCE DECEASED BY HER LRS

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1. SMT. JYOTI W/O. AJAY DABOLKAR, AGE. 56 YEARS, OCC. SERVICE, R/O. BUDHAWARPETH, TILAKWADI, BELAGAVI-590001.

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1. SMT. TRUPATI W/O. SANJAY DARESHWAR, AGE. 59 YEARS, OCC. SERVICE, R/O. P/O. 94 STEOPHENSENS ROAD, MOUNT WAVERLEY, MELBOURNE, AUSTRALIA. [THROUGH HER G.P.A. HOLDER, DR. JYOTI AJAY DABHOLKAR] …RESPONDENTS

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THIS REVIEW PETITION FILED UNDER SECTION 114 R/W ORDER 47 RULE 1 AND 2 OF CPC, PRAYING TO ALLOW THE REVIEW PETITION BY REVIEWING THE JUDGMENT DATED 26.07.2024 PASSED IN R.S.A. NO.100966 OF 2023, IN THE INTEREST OF JUSTICE.

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THIS REVIEW PETITION, COMING ON FOR FURTHER HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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ORAL ORDER

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(PER: THE HON'BLE MR. JUSTICE C.M. POONACHA)

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The present petition is filed under Order XLVII Rule 1 R/w Section 114 of the Code of Civil Procedure, 1908¹ , seeking to review the judgment dated 26.07.2024, passed in RSA No.5234/2008 C/w RSA No.5651/2010 and RSA No.100966/2023.

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A request is made by the learned counsel for the petitioner for a short accommodation. It is forthcoming from the order sheet that vide order dated 17.12.2024, this Court, notwithstanding I.A No.1/2024 for condonation of delay of one day, called upon the learned counsel for the petitioner to make his submissions on the merits of the review petition, when a

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1 Hereinafter referred to as the ‘CPC’

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request was made for a short accommodation on the ground that a Senior Counsel has been engaged in the matter and hence, the matter was ordered to be re-listed in the 3^rd week of January-2025. Subsequently, the above petition was listed on 18.02.2025. Since there was no appearance on behalf of the petitioner, the matter was ordered to be re-listed on 19.02.2025 at 2.30 p.m. On 19.02.2025, the matter was once again adjourned by two weeks.

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The above petition was listed on 07.03.2025, when a request for adjournment was made on behalf of the petitioner. This Court, noticing the earlier orders dated 17.12.2024, 18.02.2025 and 19.02.2025, adjourned the matter making it clear that if submissions on merits of the review petition are not made on the next date of hearing, further orders will be passed.

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Thereafter, the matter was listed on 14.03.2025. There was no appearance on behalf of the petitioner in the morning session or in the afternoon session. The matter was adjourned as a final chance by reiterating the observations made in the order dated 07.03.2025.

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In view of the aforementioned, the request for adjournment has not been acceded to.

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RSA No.100966/2023 was disposed of vide judgment dated 26.07.2024 along with RSA No.5234/2008 and RSA No.5651/2010. RSA No.5234/2008 was filed challenging

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the orders passed in R.A No.21/2007 and O.S No.139/2003, whereunder, the suit for specific performance filed by the plaintiffs was dismissed by the Trial Court and affirmed by the First Appellate Court. RSA No.5651/2010 was filed challenging the judgment and decree passed in R.A No.183/2008 and O.S No.295/2007, whereunder, the suit for possession and recovery of rent was decreed by the Trial Court, which was modified by the First Appellate Court. RSA No.100966/2023 was filed challenging the judgment and decree dated 25.06.2010 passed in R.A No.183/2008.

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The relevant facts are that the petitioners herein were the tenants in occupation of the suit property bearing No.4196/1/A/1 of Kacheri road, Belgaum² . The owner instituted O.S No.295/2007 (which was instituted after dismissal of HRC No.36/2003) for possession and recovery of rent. The tenants

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2 Hereinafter referred to as the ‘suit property’

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instituted O.S No.139/2003 for specific performance of the agreement of Sale dated 01.07.1997. The suit for specific performance was dismissed and the defendants therein were directed to refund the advance amount of ₹15,000/- by the Trial Court which was affirmed by the First Appellate Court. The suit for possession and recovery of rent was decreed by the Trial Court and the tenants were directed to vacate and handover vacant possession of the suit property as also pay rents at the rate of ₹300/- per month from November-2002 till date of decree and future mesne profits at the rate of ₹2,500/per month from the date of decree till the date of handing over of the vacant possession. The First Appellate Court, in R.A No.183/2008, while confirming the decree passed by the Trial Court to vacate and handover possession of the suit property, modified the order passed by the Trial Court with regard to payment of mesne profits and directed that the defendants are liable to pay mesne profits at the rate of ₹300/- per month from November-2002 till handing over of vacant possession of the suit property.

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Vide, the judgment dated 26.07.2024, this Court dismissed RSA Nos.5234/2008 and 5651/2010 and allowed RSA

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No.100966/2023. The judgment and decree passed in the suit for specific performance was affirmed. Whereas, the judgment and decree passed in R.A No.183/2008 was set aside and the judgment and decree passed in O.S No.295/2007 was affirmed. Hence, this Court dismissed the suit for specific performance filed by the tenants and affirmed the decree passed by the Trial Court in O.S No.295/2007, which ordered the defendants therein to vacate and handover possession of the suit property and pay mesne profits at the rate of ₹300/- per month from November-2002 till the date of decree and pay future mesne profits at the rate of ₹2,500/- per month from the date of decree till the date of handing over of the vacant possession of the suit property.

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It is relevant to notice here that the learned counsel representing the petitioners did not represent the said parties in the regular second appeal, wherein they were represented by a different learned counsel. The Hon’ble Supreme Court in the case of Tamilnadu Electricity Board and Another Vs. N.

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Raju Reddiar and Another³ , has deprecated the practice of review petitions being filed by a different counsel, than the

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3 (1997) 9 SCC 736

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counsel who appeared in the original proceedings. The view rendered in the said judgment of the Hon’ble Supreme Court in Tamilnadu Electricity Board³ , has been reiterated by the Hon’ble Supreme Court in the subsequent judgment in the case of Kamlesh Verma Vs. Mayawati and others⁴ . Hence, the present review petition is liable to be dismissed on the said ground.

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Notwithstanding the aforementioned, the grounds urged in the present review petition are also considered. It is sought to be contended in the review petition that when the tenant enters into an agreement of sale, he becomes the prospective purchaser and his tenancy comes to an end. It is further contended that the question of possession and mesne profits is to be decided in the independent proceedings as contemplated under Order XX Rule 12 of the CPC. Further, certain factual aspects are sought to be asserted with regard to the access to the first floor of the suit property.

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It is relevant to notice here that the grounds sought to be urged in the present review petition are factual assertions which were urged in the earlier original proceedings and were 4 (2013) 8 SCC 320

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taken into consideration by this Court while adjudicating upon the regular second appeals, which were disposed of vide judgment dated 26.07.2024.

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It is a settled proposition of law that an order cannot be reviewed unless the Court is satisfied that there is material error manifest on the face of the order, which undermines its soundness or results in miscarriage of justice. The error of law is required to be apparent in the face of record and lengthy arguments ought not to be taken recourse to for the purpose of pointing out the said errors of law. The power of review is not akin to the appellate power which enables to superior Court to correct all errors committed by the subordinate Court (see Kamlesh Verma⁴ ).

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It is clear from the aforementioned that the scope of review contained under Order XLVII Rule 1 R /w Section 114 of the CPC is restricted and the arguments that were put forth in the original proceedings ought not to be entertained in review proceedings. It is clear from what is noticed above that the grounds urged in the present review petition are nothing but a repetition of the contentions that were canvassed in the

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regular second appeals. Hence, the petitioners have not made out any ground to seek the review of the judgment dated 26.07.2024 passed in RSA No.100966/2023.

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It is relevant to notice here that the present review petition has been filed by the petitioners with oblique motive of continuing the squat on the suit property and in order to delay execution of the decrees, which are sought to be adjudicated pursuant to the judgment dated 26.07.2024. It is forthcoming that the suits in respect of the suit property have been pending since the year 2003 and the agreement of sale on which the petitioners seek to assert their rights is dated 01.07.1997. It is clear that the present review petition is nothing but an abuse of process of this Court and such endeavors require to be deprecated by imposing suitable costs. Hence, the review petition as also I.A No.1/2024 are dismissed with costs of ₹1 lakh.

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A copy of this order be intimated by the registry to the Trial Court in O.S No.295/2007, so that the costs imposed herein above are included in the decree to enable recovery of

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