Dr. Divya J Vs Sri B N Govindaiah

DR. DIVYA J., AGED ABOUT 48 YEARS, D/O LATE G.L. JAYPAL, RESIDING AT HOLENARSIPURA ROAD, OPPOSITE FILTER HOUSE, CHANNARAYAPATNA HASSANA DISTRICT-573116.

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…PETITIONER

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(BY SRI. G.L. VISHWANATH, SENIOR COUNSEL FOR MS. MAHESHWARI D.M., ADVOCATE)

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VINAYAKA B V

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Digitally signed by VINAYAKA B V Date: 2026.03.24 14:33:57 +0530

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AND:

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SRI. B.N.GOVINDAIAH, AGED MAJOR, S/O LATE NANJAIAH, GADDE BINDENAHALLI VILLAGE, KASABA HOBLI, CHANNARAYAPATNA TALUK, HASSAN-573116.

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SMT. JAYALAKSHMAMMA, AGED MAJOR W/O B.N.GOVINDAIAH, GADDE BINDENAHALLI VILLAGE, KASABA HOBLI,

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NC: 2026:KHC:15997 RP No. 365 of 2025

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HC-KAR

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CHANNARAYAPATNA TALUK, HASSAN-573116.

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SRI. B.G.HARIPRASAD, AGED MAJOR, S/O LATE NANJAIAH, GADDE BINDENAHALLI VILLAGE, KASABA HOBLI, CHANNARAYAPATNA TALUK, HASSAN-573116.

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…RESPONDENTS

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(BY SRI. RAJASHEKAR S., ADVOCATE FOR R1 TO R3)

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THIS REVIEW PETITION IS FILED UNDER ORDER 47 RULE 1 R/W SECTION 114 OF CPC, PRAYING TO REVIEW THE ORDER DATED 26.06.2025 PASSED BY THIS HON’BLE COURT IN RSA NO.1428/2024 (ANNEXURE-A) IN THE INTEREST OF JUSTICE AND EQUITY AND GOOD CONSCIENCE.

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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 H.P.SANDESH

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ORAL ORDER

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Heard the learned counsel for the review petitioner and also the learned counsel for the respondents.

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The present review petition is filed praying this Court to review the order dated 26.06.2025 passed in R.S.A.No.1428/2024 and to grant such other relief as deemed

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fit in the circumstances of the case.

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The grounds which have been urged in this review petition is that the impugned order has proceeded on the sole basis that the petitioner was given sufficient opportunity, without adverting to the fact that the petitioner had selected advocates, briefed them and paid their fees, while trusting them to defend her case. However, they completely failed to do so, and thereby a decree was passed against the petitioner. For no fault of the review petitioner, the petitioner as an innocent party, is suffering the consequence of her advocate’s default. It is also contended that this Hon’ble Court has time and again held that an innocent party should not suffer merely because of his advocate’s default. The learned counsel also brought to the notice of this Court the judgment of the Hon’ble Apex Court in the case of RAFIQ v. MUNSHILAL reported in (1981) 2 SCC 788 and would vehemently contend that the Trial Judge while passing the judgment made a reference that no written statement was filed. But the fact is that an application was filed advancing the case when the case was set down for judgment and the same was rejected and hence, making an observation that no written statement is filed is erroneous. The learned counsel also vehemently contend that

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even if the defendant did not contest the matter, the Court has to take note of other material available on record while granting the relief. The learned counsel also vehemently contend that the review petitioner came to know about an order passed by the Deputy Commissioner, wherein comes to the conclusion that the very grant made in favour of the plaintiff itself is not in the eye of law and the same is not sustainable and the same came to the knowledge of this review petitioner subsequent to the disposal of this RSA. Hence, this Court has to review the order passed by this Court.

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The learned counsel for the review petitioner in support of his arguments, relied upon the judgment of the Hon’ble Apex Court in the case of BALRAJ TANEJA AND ANOTHER v. SUNIL MADAN AND ANOTHER reported in (1999) 8 SCC 396 and brought to the notice of this Court paragraph No.25. The learned counsel also relied upon the judgment of the Hon’ble Apex Court in the case of UNION OF INDIA AND OTHERS v. VASAVI COOPERATIVE HOUSING SOCIETY LIMITED AND OTHERS reported in (2014) 2 SCC 269 and also the judgment of the Hon’ble Apex Court in the

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case of C.N. RAMAPPA GOWDA v. C.C. CHANDREGOWDA (DEAD) BY LRS. AND ANOTHER reported in (2012) 5 SCC

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265 and relied upon paragraph Nos.25 and 26, wherein the Court held that the Court has to look into the plaint while passing the judgment, if the defendant does not contest the suit. The learned counsel brought to the notice of this Court that in the plaint it is stated that no building is constructed and suppressed the material. The learned counsel also contend that fraud including suppression of material facts render a decree obtained by such a fraud in nullity and referred the judgment of the Hon’ble Apex Court in the case of S.P.

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CHENGALVARAYA NAIDU (DEAD) BY LRS v. JAGANNATH

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(DEAD) BY LRS AND OTHERS reported in (1994) 1 SCC 1 and brought to notice of this Court paragraph No.5. The learned counsel also relied upon the judgment of the Hon’ble Apex Court in the case of MEGHMALA AND OTHERS v. G.NARASIMHA REDDY AND OTHERS reported in (2010) 8

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SCC 383 and brought to the notice of this Court paragraph No.28.

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The learned counsel in support of his arguments with regard to the scope of review is concerned under Order 47 Rule 1 of CPC in respect of discovery of an important fact, brought to the notice of this Court the judgment of the Hon’ble Apex Court in the case of BOARD OF CONTROL FOR CRICKET IN INDIA AND ANOTHER v. NETAJI CRICKET CLUB AND OTHERS reported in (2005) 4 SCC 741 and so also the judgment of this Court in the case of BANGALORE DEVELOPMENT AUTHORITY, BY ITS COMMISSIONER, BANGALORE AND OTHERS v. P. ANJANAPPA AND OTHERS reported in ILR 2003 KAR 1471 and also the judgment of the Hon’ble Apex Court in the case of MORAN MAR BASSELIOS

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CATHOLICOS AND ANOTHER v. MOST REV. MAR POULOSE ATHANASIUS AND OTHERS reported in (1954) 2 SCC 42. The learned counsel also brought to the notice of this Court that the Trial Judge ought not to have disposed the restoration of application filed by the petitioner and in support of his contentions relied upon the judgment of the Hon’ble Apex Court in the case of DWARIKA PRASAD (D) THROUGH LRS. v. PRITHVI RAJ SINGH reported in 2024 SCC OnLine SC 3828

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and also in the case of M.K. PRASAD v. P. ARUMUGAM reported in (2001) 6 SCC 176 .

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The learned counsel in support of his arguments relied upon the judgment of the Hon’ble Apex Court dated 08.10.2025 passed in Special Leave Petition (Civil) No.21917/2025 and brought to the notice of this Court paragraph No.2 with regard to procedural law is not to be a tyrant but a servant, not an obstruction but an gate to justice. It is the handmaid of justice and not its mistress. The learned counsel also brought to the notice of this Court paragraph Nos.3, 9 and 11 and so also paragraph Nos.12 and 13 and also brought to the notice of this Court paragraph No.24, wherein in detail considered the factual matrix of the case. The learned counsel also relied upon the judgment of this Court in the case

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of LEELADEVI AND OTHERS v. NARAYAN AND OTHERS reported in MANU/KA/1228/2017 and brought to the notice of this Court the discussion made in paragraph No.11, wherein it is held that it is quite common that a party, who is in advantageous position having obtained an interim order or who

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derives benefit in one way or the other due to delay or has a weak case does not allow a suit to be decided.

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The learned counsel referring these judgments would vehemently contend that no opportunity was given to the review petitioner and proceeded erroneously and even not given an opportunity when the application was made and mere posting of the judgment of the case itself is not a ground to comes to a conclusion.

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Per contra, the learned counsel for the respondents would vehemently contend that this Court while passing an order, in detail considered the case of the parties and in paragraph No.12 taken note of whether it is a case for imposing the cost and even for imposing the cost also, the appellant has not made out any grounds to set aside the judgment of the Trial Court as well as to reverse the judgment of the First Appellate Court and detail discussion was made from paragraph Nos.13 to 17. This Court also taken note of even order sheet as well as an opportunity given and also the judgment in the case of SANGRAM SINGH v. ELECTION TRIBUNAL reported in AIR 1955 SC 425 as well as case of Rafiq (supra) was also

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discussed and comes to the conclusion that the appellant has not made out the ground and it is not a case for admitting the same and the Court cannot grant such relief on the whims and fancies of the appellant. The appellant being a doctor who is running a hospital in the very same building, cannot seek for remand in the second appeal to set aside the matter and fix time bound trial and give direction to dispose of the matter on merits. This Court also taken note of document of partnership dated 30.08.2017 as well as the sale deed came into existence on the very next day i.e., on 31.08.2017 and what made to have the sale deed on the very next day after entering into a new partnership, which was registered before the Registrar of Partnership, no explanation on the part of the appellant and the same is discussed in paragraph No.17.

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The learned counsel for the respondents in support of his arguments relied upon the judgment of the Hon’ble Apex Court in the case of MALLEESWARI v. K. SUGUNA AND ANOTHER reported in 2025 SCC OnLine SC 1927, wherein discussion was made in paragraph Nos.14 and 17 with regard to under what circumstances the Court can exercise the review

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jurisdiction. The learned counsel also submits that no new factor has arisen as the order passed by the Deputy Commissioner was challenged before this Court in the year 2024 itself and the same is stayed and the same is not relevant in respect of this suit is concerned and suit is only in respect of having obtained the sale deed fraudulently in respect of the transaction and not in respect of the title is concerned and hence, the same cannot be a ground. Other than urging this ground, no other grounds are urged to invoke the review jurisdiction.

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Having heard the learned counsel for the review petitioner as well as the learned counsel for the respondents, the issue involved between the parties is with regard to the sale transaction is concerned. The plaintiffs/respondents had filed a suit before the Trial Court in respect of the sale obtained by the review petitioner herein and the Court comes to the conclusion that the sale deed was obtained fraudulently in the guise of obtaining the document of partnership deed which came into existence on 30.08.2017 and on the very next day, sale deed came into existence i.e., on 31.08.2017. But this

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Court cannot consider the review petition as an appeal and scope of review is very limited. If any error is apparent in the order passed by this Court, this Court can exercise its review jurisdiction. There is no dispute with regard to the principles laid down in the judgments referred supra relied upon by the learned counsel for the review petitioner with regard to even if it is an exparte judgment, the Court has to look into the material on record and pass an order. The learned counsel for the review petitioner would submit that the Trial Court passed an order in one paragraph and in nutshell not discussed the case of the respondents herein. The learned counsel for the review petitioner submits that while exercising the review jurisdiction, if materials are brought on record and given an opportunity, the result would be different. While exercising the review jurisdiction, the Court has to take note of whether this Court committed an error and whether there is a mistake apparent on record.

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Having considered the reasoning of this Court while disposing of the second appeal, from paragraph Nos.13 to 17, this Court taken note of the circumstances under which the suit

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was filed and an opportunity was given and for a period of two years from the date of appearance through an advocate, written statement was not filed. For about almost 5 to 6 months even though time was given to file the written statement, the same was not filed. Even though appearance was made in the month of June, the written statement was not filed. Subsequent to that also when the case was set down for plaintiff's evidence, the plaintiff was examined, but not filed the written statement subsequently or contested the matter. When the suit was heard and posted for judgment, at that juncture, advancing the case an application is filed and hence, the Trial Court rejected the same. No doubt, the learned counsel for the review petitioner would submit that a reference was made that no written statement was filed. But the fact is that when the application was filed, the same was rejected and once it is rejected, the Trial Court rightly mentioned that the written statement was not filed. If the application was allowed and not considered the written statement and not given an opportunity, then there would have been a force in the contention of the learned counsel for the review petitioner.

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The other ground urged before this Court is that a new material came to the knowledge of the review petitioner subsequent to the disposal of RSA. No doubt, the learned counsel for the review petitioner brought to the notice of this Court the order passed by the Deputy Commissioner and the same is not at the instance of the review petitioner and the same is filed by other persons with regard to the grant is concerned and the same is stayed by this Court in the year 2024 itself, wherein with regard to the grant is concerned, question is made. But the issue before this Court is with regard to the sale made in favour of the review petitioner and it is alleged that the same is obtained fraudulently. Even though there was an existence of partnership deed, on the very next day, sale deed came into existence and same is fraudulently obtained. When such being the case, the very ground urged by the learned counsel for the review petitioner that a new factor came to the knowledge of the review petitioner subsequent to the disposal of RSA will not come to the aid of the review petitioner and the same is in respect of grant is concerned. Already matter is seized before this Court by filing a writ petition and also stay is granted. When such being the case,

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the same is not relevant for consideration of this review petition as the Review Petitioner is also not disputing the title of the respondent herein. Hence, I do not find any ground to review the order passed by this Court and this Court in detail dealt with the matter from paragraph Nos.13 to 17. All the grounds have been urged before this Court in the second appeal itself and this Court cannot sit and decide the same as an appeal if there is no material before the Court that the order is error as apparent on record.

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No doubt, the learned counsel for the respondents also relied upon the recent judgment of the Hon’ble Apex Court in the case of Malleeswari (supra), wherein the Apex Court reiterated the grounds of review in paragraph Nos.14, 15 and 17. The very contention of learned counsel for the review petitioner is that the ground of discovery of new and important matter or evidence is a ground available if it is demonstrated that, despite the exercise of due diligence, this evidence was not within their knowledge or could not be produced by the party at the time, the original decree or order was passed. But the same cannot be a discovery of new and important matter

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and the same is in respect of consideration of grant in favour of the respondents herein and the same is also subject to the result of the writ petition, which is pending before this Court and the same will not come to the aid of the review petitioner as there is no dispute with regard to the title and review petitioner is also claiming right through the respondent herein only. Hence, I do not find any ground to allow the review petition and no such ground is made out to invoke Order XLVII Rule 1 of CPC and hence, the review petition is dismissed.

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SD/(H.P.SANDESH) JUDGE

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MD

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List No.: 1 Sl No.: 15

Dr. Divya J v. Sri B N Govindaiah

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Dr. Divya J v. Sri B N Govindaiah

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