Smt Ashwathamma Vs Smt Rekha

SMT. VENKATA LAKSHMAMMA @ RAJALAXMAMMA W/O LATE VENKATARAMAIAH AGED ABOUT 80 YEARS RESIDING AT NO.851 NEAR RAILWAY GATE K SHETTYHALLI HOBLI THINDLU MAIN ROAD SAHAKARA NAGARA POST KODIGEHALLLI BENGALURU -560 092.

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SMT. RAMA W/O VASUDEVAN D/O LATE RATHNAMMA AGED ABOUT 66 YEARS RESIDING AT NO.851, NEAR RAILWAY GATE K. SHETTYHALLI ROAD SAHAKARA NAGARA POST

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NC: 2025:KHC:44102 RP No. 461 of 2024

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HC-KAR

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KODIGEHALLI, BENGALURU-560 092.

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SMT. SUMA W/O SRINATH D/O LATE RATHNAMMA AGED ABOUT 64 YEARS RESIDING AT NO.851 NEAR RAILWAY GATE K. SHETTIHALLI HOBLI THINDLU MAIN ROAD SAHAKARA NAGARA POST KODIGEHALLI BENGALURU - 560 092.

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…RESPONDENTS

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(BY SRI. PAVANA CHANDRA SHETTY H., ADVOCATE FOR R1 TO R3)

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THIS REVIEW PETITION IS FILED UNDER SECTION 114 OF CODE OF CIVIL PROCEDURE PRAYING TO CALL FOR RECORDS IN R.F.A NO. 891/2013 ON THE FILE OF THIS HONBLE COURT AND TO ALLOW THIS REVIEW PETITION BY SETTING ASIDE THE JUDGMENT DATED 09.08.2024 PASSED IN R.F.A. NO. 891/2013 AND RESTORE THE APPEAL ON FILE OF HEAR THE SAME ON MERITS AND ETC.,

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

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CORAM: HON'BLE MR. JUSTICE UMESH M ADIGA

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NC: 2025:KHC:44102 RP No. 461 of 2024

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ORAL ORDER

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This review petition is filed by respondent Nos.4 and 5 in RFA.No.891/2013, to review the judgment and decree dated 9^th August 2024, passed by this Court.

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The respondents herein have filed a suit for partition before the XLIII Addl.City Civil and Sessions Judge, Bengaluru, in O.S.No.784/2011 (for short, `trial Court'). The said suit was dismissed by the trial Court vide judgment and decree dated 18^th February 2013. Before the trial Court, the review petitioners did not appear and they were placed ex parte. Being aggrieved by the said judgment and decree, plaintiff filed RFA.No.891/2013 before this Court. This Court after hearing the arguments, vide judgment and decree dated 9^th August 2024, allowed the appeal in-part.

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Learned counsel for the review petitioners contended that review petitioners were not given an opportunity of hearing and without hearing them, orders

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were passed. It is also the contention of the review petitioners that they have filed an application under Order LXI Rule 27 of CPC, seeking permission to produce additional documents; The said application was not considered by this Court; Along with the said application, Sale Deed dated 22.08.1968 was filed before this Court; Under the said Sale Deed, N.S.Bhaskar Rao had sold the property in favour of Sri Bhushappa i.e., maternal grandfather of husband of petitioner No.1. The said document was a material piece of evidence, and without considering the same, this Court passed the judgment. Therefore, there is an error apparent on the face of the record. Hence, the petitioner prays to review the judgment and decree dated 9th August 2024.

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Learned counsel for respondent Nos.1 to 3 contended that the review petition is not maintainable; petitioners were heard before passing the impugned judgment; Moreover, review petitioners is seeking permission of this Court for rehearing of the appeal along

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with the said application IA.No.1/2023, and the alleged document sought to be produced is a doubtful document; The respondent Nos.4 and 5 claimed to have purchased the property from daughters of Bhaskar Rao; Therefore, there was no question of purchase of the very same property from the said Bhaskar Rao.

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He relied upon the Hon'ble Apex Court in the

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case of Kamlesh Verma -vs- Mayawati and others,¹

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wherein their Lordship's have held at Para Nos.20.1 and 20.2 as under :

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" 20.1. When the review will be maintainable:

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(i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him;

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(ii) Mistake or error apparent on the face of the record;

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(iii) Any other sufficient reason.

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The words “any other sufficient reason” have been interpreted in Chhajju Ram v. Neki [(1921-22)

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1 (2013) 8 SCC 320

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49 IA 144 : (1922) 16 LW 37 : AIR 1922 PC 112] and approved by this Court in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius [AIR 1954 SC 526 : (1955) 1 SCR 520] to mean “a reason sufficient on grounds at least analogous to those specified in the rule”. The same principles have been reiterated in Union of India v. Sandur Manganese & Iron Ores Ltd. [(2013) 8 SCC 337 : JT (2013) 8 SC 275]

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20.2. When the review will not be maintainable:

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(i) A repetition of old and overruled argument is not enough to reopen concluded adjudications.

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(ii) Minor mistakes of inconsequential import.

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(iii) Review proceedings cannot be equated with the original hearing of the case.

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(iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice.

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(v) A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error.

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(vi) The mere possibility of two views on the subject cannot be a ground for review.

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(vii) The error apparent on the face of the record should not be an error which has to be fished out and searched.

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(viii) The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition.

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(ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived."

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Learned counsel, therefore submits that review

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petition is not maintainable and prayed to dismiss the review petition.

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The contentions of review petitioner that he was not heard while deciding RFA is incorrect. In the judgment of RFA.No.891/2013, it is clearly noted. During the course of arguments, the learned counsel for the review petitioners submitted that he was not present and his junior colleague, who was not fully conversant with the facts of the case, has argued the matter. There are no materials to show that the said junior colleague had

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prayed time and that was rejected. Hence, on this ground, the impugned judgment cannot be reviewed.

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Undisputedly, respondent Nos.4 and 5 in RFA.No.891/2013, who are review petitioners herein, did not appear in O.S.No.784/2011 and they were placed ex parte. The appellant in RFA.No.891/2013 had filed Exs.P-3 and P-4, said to be the Sale Deeds executed in favour of respondents/defendant Nos.4 and 5. The review petitioners since were placed ex parte before the trial Court, and hence question of filing of written statement and leading evidence did not arise. Even in RFA.No.891/2013, the respondent Nos.4 and 5 did not disclose their defence. Unless a defence is made out, mere production of documents to prove a fact that was not on record cannot be considered sufficient to lead evidence. Moreover, mere filing of an application without pressing it during the course of arguments indicates that party is not interested on the said application. The said application was not pressed during the arguments.

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Moreover, the application filed under Order XLI Rule 27

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of CPC, shall be considered only in exceptional circumstances and parties cannot file such an application as of right before Appellate Court. When a party has made out a case and to prove that contention, evidence or additional evidence shall be permitted. When petitioner had not made out a case before the trial Court and remained ex parte , has no such right. Hence, there is no error on the face of the record to review the judgment and decree passed in RFA.No.891/2013.

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The review petition is devoid of merits, hence it is dismissed.

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In view of dismissal of the review petition, pending IAs. stands disposed of.

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Sd/-

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(UMESH M ADIGA) JUDGE

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bk/ List No.: 1 Sl No.: 2

Smt Ashwathamma v. Smt Rekha

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Smt Ashwathamma v. Smt Rekha

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