M K Veerakyathappa Vs Malappa

SMT VADDAGIRIYAMMA, W/O HORAKERAPPA, & D/O PUJARI SIDDARAMAIAH, AGED ABOUT 63 YEARS, RESIDENT OF KASAVANAHALLI, RANGANATHAPUR HOBLI, HIRIYUR TALUK, CHITRADURGA DISTRICT-572143. SINCE DEAD BY HER LRS

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HC-KAR

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GURU, S/O LATE RANGANATHA, GRANDSON OF LATE VADDAGIRIYAMMA, AGED ABOUT 30 YEARS,

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SMT SUMITHRA, W/O HANUMANTHARAYA, D/O LATE VADDAGIRIYAMMA, AGED ABOUT 50 YEARS BOTH ARE RESIDING AT KASAVANAHALLI, KASABA HOBLI, HIRIYURU TALUK, CHITRADURGA DISTRICT - 572143.

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…RESPONDENTS (BY SRI. SUYOG HERELE E.,ADVOCATE FOR R1 V/O/DT 18.03.2025, PROPOSED R3 & R4 ARE THE LRS OF R2, R3 IS SERVED,

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V/O/DT 18.03.2025, NOTICE TO R4 IS H/S, R4 IS SERVED)

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THIS REVIEW PETITION IS FILED UNDER ORDER 47 RULE 1 OF CPC, PRAYING THIS HON'BLE COURT TO ALLOW THIS REVIEW PETITION, REVIEW THE JUDGMENT AND DECREE DATED 04.10.2010 PASSED IN R.S.A NO.826/2010 AND BE PLEASED TO DISMISS RSA NO.826/2010, WITH COSTS THROUGHOUT, IN THE INTEREST OF JUSTICE AND EQUITY.

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THIS PETITION, COMING ON FOR ADMISSION THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE ANANT RAMANATH HEGDE

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ORAL ORDER

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Review Petition No.324/2017 was filed to review the judgment and decree dated 04.10.2010 in R.S.A. No.826/2010. Said petition was dismissed on 22.08.2017.

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HC-KAR

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I.A. No.1/2025 to condone the delay of 2815 days to recall

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the order dated 22.08.2017 and I.A. No.2/2025 to recall the order dated 22.08.2017 are filed.

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Review Petition No.398/2017 is filed to review the judgment and decree dated 04.10.2010 in R.S.A. No.826/2010. There is a delay of 2493 days in filing the review petition. Keeping open the point of limitation, the notice was issued and the matter is now posted for admission.

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This Court while rejecting the review petition No.324/2017 has assigned two reasons viz., (a) the counsel who appeared in RSA No.826/2010 has not filed the review petition and the review petition is filed by different Advocate. (b) the Special Leave Petition filed against the judgment and decree in RSA No.826/2010 is confirmed by dismissing the Special Leave Petition No.4269/2015.

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HC-KAR

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Learned counsel appearing for the petitioner in

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both the petitions would submit that the Advocate who had appeared on behalf of review petitioner (respondent in RSA No.826/2010) is not in a position to attend the Court on account of illness. Thus, he would submit that the review petition filed by the petitioner through a different Advocate has to be heard on merit. To cure the defect, it is submitted that review petition No.398/2017 is filed by the Advocate who has appeared for the respondent in RSA No.826/2010. Thus, it is urged that the delay in filing the review petition No.398/2017 be condoned as review petition was not filed because of the filing of the review petition No.324/2017.

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It is noticed that review petition No.324/2017 is

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filed on 13.07.2017. It is stated that there is a delay in

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filing the review petition No.324/2017 as the petitioner was pursuing his remedy before the Supreme Court by filing Special Leave Petition.

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HC-KAR

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It is noticed that Special Leave Petition No.

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No.4269/2015 challenging the judgment and decree dated 04.10.2010 in RSA No.826/2010 is filed in the year 2015 and same is dismissed vide order dated 13.03.2015. Despite there was a delay of 1135 days in filing the Special Leave Petition and also 353 days in refiling the Special Leave Petition for which, there was no satisfactory explanation offered as per the order passed by the Apex Court, the Apex Court has considered the grounds urged in

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the Special Leave Petition and leave is not granted and accordingly, the Special Leave Petition No.4269/2015 is rejected.

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When the review petition No.324/2017 came up for consideration before this Court, the Registry raised objection relating to maintainability of the petition on the premise that the Advocate who was appeared on behalf of review petitioner/respondent in RSA No.826/2010 has not filed review petition. The Court has accepted the said office objection and held that the review petition is not

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HC-KAR

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maintainable. In addition to that, the review petition is also dismissed, as already noticed, on the premise that the review petition urging the same grounds, urged in Special Leave Petition.

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Learned counsel appearing for the petitioner would contend that the review petition No.398/2017 is filed by the Advocate who appeared for the review petitioner (respondent in RSA No.826/2010) since he could not pursue the matter on account of his ill health, the application filed by the present Advocate seeking leave of the Court to prosecute the review petition and the leave is granted in terms of the order dated 18.03.2025. Thus, the learned counsel appearing for the petitioner would contend that the review petition has to be heard on merit as the review petition is not heard on merit on earlier occasion. It is his further submission that the order passed by the learned predecessor of this Court in review petition No.324/2017 rejecting the review petition on the ground that the grounds urged in the Special Leave

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HC-KAR

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Petition cannot be entertained is erroneous and he would refer to the judgment of the Hon'ble Apex Court in the case of Kunhayammed & Others vs. State of Kerala &

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Another¹ .

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Learned counsel appearing for the respondents on the other hand would submit that the review petition is rejected on merits on the premise that Special Leave Petition is rejected and even if it is assumed to be an erroneous finding, in the light of the law laid down by the Hon'ble Apex Court in the case of Kunhayammed, supra, in view of the bar contained under Order XLVII Rule 9 of the Code of Civil Procedure, the review petition filed by the petitioner and application to recall earlier order in review petition No.324/2017 not maintainable.

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This Court has considered the contentions

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raised at the bar and perused the records.

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1 (2000) 6 SCC 359

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HC-KAR

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The review petition No.324/2017 is rejected on

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two grounds; (a) the counsel who has appeared for the review petition in the RSA No.826/2010 has not filed review petition. In addition to that, learned predecessor of this Court has also assigned the following reason:-

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"3. Further, in the instant case, before filing the review petition, the petitioner herein had filed Special Leave Petition numbered as SLP(C) No.008761/2015 before the Hon'ble Supreme Court against the judgment now sought to be reviewed. It is seen that the said SLP is dismissed by the Hon'ble Supreme Court by its order dated 13.03.2015. Thereafter as and by way of afterthought, this review petition is filed re-agitating the grounds, which were raised in the said SLP."

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Order XLVII Rule 9 of Code of Civil Procedure reads

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as under:-

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"ORDER XLVII - Review

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xxxx

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xxxx

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" 9. Bar of certain applications.- No application to review an order made on an

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HC-KAR

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application for a review or a decree or order passed or made on a review shall be entertained."

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Though the learned counsel for the petitioner

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would urge that the doctrine of merger does not apply when the Special Leave Petition is rejected, what is required to be noticed is even if the review petition is rejected on the erroneous interpretation of dismissal of Special Leave Petition in case, the application is allowed or even if paragraph 3 extracted above is recalled as sought by the learned counsel for the petitioner, same amounts to reviewing the order dated 22.08.2017. Such an exercise is impermissible in view of the bar contained under Order XLVII Rule 9 of the Code of Civil Procedure.

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Though it is urged that the judgment and decree passed in RSA No.826/2010 is sought to be reviewed in review petition No.398/2017, this Court has to hold that such a prayer was rejected in review petition No.327/2017 as such, review petition No.398/2017 is also

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HC-KAR

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not maintainable in view of the bar contained in Order

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XLVII Rule 9 of Code of Civil Procedure.

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Learned counsel appearing for the petitioner has relied upon the judgment of the Hon'ble Apex Court in

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S. Nagaraj and Others vs. State of Karnataka and Another² . He has invited the attention of the paragraphs No.18 and 19 of the said judgment.

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This Court has noticed that the Hon'ble Apex Court has undertaken the exercise of review in exercise of jurisdiction of constitutional Court and that too in the backdrop of the facts where the State had failed to bring the correct facts on record which resulted in gross miscarriage of justice. Though the learned counsel would submit that the order dated 22.10.2017 does not operate as a resjudicata, this Court is of the view that considering order dated 22.08.2017 in review petition No.398/2017,

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2 1993 Supp (4) SCC 595

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