IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF JANUARY 2019 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR REVIEW PETITION No.144 OF 2018 IN REGULAR FIRST APPEAL No.1134 OF 2011 BETWEEN A.Subramanyaswamy S/o. Late A.Shankar Rao, Since deceased by LRs, 1. Smt. Padma Swamy, Aged 75 years, W/o. Late A.Subramanyaswamy 2. Smt. Mangala Rajachandra, Aged 53 years, D/o. Late A.Subramanyaswamy 3. Smt. Anju Aragam, Aged 48 years, D/o. Late A.Subramanyaswamy 1 to 3 are R/at No.805, 15th Block, Cascade Range, Heritage Estate, Doddaballapura Road, Yelahanka, Bangalore-560064.
4. Achyuta., Aged about 83 years, S/o. Late A.Shankar Rao, R/at No.154, Mullibyrappa Compound, Govt. Hospital Road, Konanakunte, Bangalore-560063.
5. A.Dayananda, S/o. Late A.Shankar Rao, Aged about 70 years, R/at No.89, 3rd Cross, Maruthinagar, Near Shreyas Colony, J.P.Nagar, Bangalore-560078.
6. Smt. A.Saroja, W/o. Ajjampur Nagaraj Rao, D/o. Late A.Shankar Rao, Aged about 79 years, R/at No.2298, 21st Cross, K.R.Road, BSK II Stage, 7th Block West, Bangalore-560082.
(By Sri B.N.Ananthanarayana, Advocate) AND A.Narayanaswamy, S/o. Late A.Shankar Rao, Since deceased by LRs.
1. Arun A.N., Aged about 58 years, 2. Ashwin A.N., Aged about 56 years, 3. Adarsh A.N., Aged about 42 years, 1 to 3 are R/at Old No.25/C, New No.211, 38th Cross, …Petitioners Bank Colony, 8th Block, Jayanagar, Bangalore-560070.
(By Sri M.S.Ashwin Kumar, Advocate, for R1; R2 & 3 are served but unrepresented) …Respondents This Review Petition is filed under Order 47 Rule 1 read with Section 114 of CPC praying to review the judgment dated 27.02.2018 passed in RFA No.1134/2011 and the plaintiffs and the defendants 2 to 4 be declared as entitled to 1/5th share in the sital value of the suit schedule property as on the date of the judgment passed in RFA No.1134/2011 in the interest of justice.
This Review Petition coming on for hearing this day, the court made the following:
ORDER The respondents 1 (a) to (c) and respondents 2 to 4 in RFA 1134/2011 have sought review of operative portion (b) of the judgment in the said appeal. Given a short history of the events that have given rise to this review petition, A.Subramanyaswamy, the deceased husband of first petitioner and father of second and third petitioners instituted a suit, O.S.7385/2005 in the Court of City Civil Judge, Bengaluru, for partition claiming 1/6th share in the suit property that bears site no. 25/C, Municipal No.18, 8th Block, Jayanagar, Bengaluru. The trial court decreed the suit granting 1/5th share to Sri A Subramanyaswamy. Aggrieved by the said judgment and decree, the first defendant A.Narayanaswamy preferred an appeal RFA 1134/2011. This court by judgment dated 27.2.2018 allowed the appeal partly and modified the judgment of the trial court by holding that the plaintiff was only entitled to 1/5th share in the value of the site as on the date of suit and neither the plaintiff nor defendants 2 to 4 had any share in the houses constructed in the ground and first floors. Now, the review petitioners contend that the decision of this court in holding that the plaintiff was entitled to 1/5th share in the value of the site as on the date of suit requires to be reviewed as according to them, this is a mistake in as much as the valuation should be considered on the day when the appeal was decided.
2. I have heard the arguments of the learned counsel for the review petitioners and the respondents.
3. The learned counsel for the petitioners argued that the finding given by this court in the appeal that the petitioners are not entitled to any share in the houses that are in existence in ground and first floors are acceptable to the petitioners, but this court has held that the plaintiff is entitled to 1/5th share in the value of the site and in the operative portion it is shown that the value of the site as on the date of the suit should be considered. This observation is unwarranted in the sense that the value of the property has increased manifold since the date of the suit. The petitioners are deprived of the present value of the property. For no fault on their part, they are rendered to accept a meager amount towards their share in the sital value. The petitioners have sufficient reasons for seeking review to see that justice is done. The learned counsel argued that the observation of this court amounts to an error apparent on the face of record.
4. The learned counsel for the respondent argued that there is no error in the operative portion of the judgment. This court has made that observation after giving thought over the issue and it stands to sound reasoning. His further argument was that if the argument of petitioners’ counsel is considered, this court will be compelled to supply reasons for granting review. ‘Error apparent’ must be glaring and expects no reason to be given for granting review on that ground. If it is possible to take other view in the given set of circumstances, review is not permitted. He argued for dismissing the petition by placing reliance on the following decisions :-
(1) N.Veerabhadrappa vs Smt. Shivamma and Another [2001 (4) KLJ 630] (2) Smt. Chinnamma and Others vs R.Venkataswamy and Others [2003 (6) KLJ 105] (3) Arikala Narasa Reddy vs Venkat Ram Reddy and another [2014 (5) Scale 187] (4) Sasi (D) Through LRs vs Aravindakshan Nair and Others [2017 (4) SCC 692] (5) Sushila and Another vs Rajbeer Singh and Another [2008 ACJ 1262} (6) T.Thimmaiah vs Venkatachala Raju [2008 (11) SCC 107] (7) Union of India vs Sandur Manganese & Iron Ore Limited and Others [AIR 2013 SCW 2905] (8) Kamlesh Verma vs Mayawati and Others [AIR 2013 SC 3301} 5. Before discussing the point whether there is a case for review or not, it is necessary to refer to the decisions that the counsel for the respondents has relied upon.
5.1. In Veerabhadrappa (supra), this court has referred to an earlier decision in the case of D. Thimmappa Sheika and Another vs State of Karnataka and Others where it is held as below :-
“4. ……. This Court also in D.Thimmappa Sheika and Another Vs. State of Karnataka and Others[AIR 2000 NOC 25 (KAR], held that where without any elaborate arguments one could point to the error and say here is a substantial point of law which stares one in the face and there could reasonably be no two opinions entertained about it, a clear case of error apparent on the face of the record would be “Made out”. Where to point error elaborate arguments have to be made and where there is possibility of two views, then it cannot be an ‘error apparent’ ”.
5.2. In the case of Smt. Chinnamma (supra), this court referring to some of the decisions of the Supreme Court has held below :-
“Only an error apparent on the face of the order can be corrected in review and the reasoning of the Court cannot be substituted and even according to the present petition, the prayer is to reconsider the appeal. It is well-settled that within the limited scope of review, the appeal cannot be reargued on merits and another order cannot be substituted in place of the order passed after hearing the learned Counsel appearing for petitioners-appellants in the appeal and accordingly, I hold that there is no error apparent on the face of the order nor any cause is made out for review of the order passed by this Court in R.F.A. No. 11 of 1998, dated 17-4-1998 and pass the following order.--
The petition is dismissed with costs”.
5.3. The observation of the Hon’ble Supreme Court in the case of Arikala Narasareddy (supra) is as follows:
“7. At this juncture, it has been submitted by Shri P.P.Rao, learned senior counsel appearing on behalf of respondent No.1, that while deciding the appeal, this court had recorded a finding that none of the grounds taken in the Recrimination Petition had any substance and all of them stood rejected. In a Review Petition, under no circumstance taking a contrary view is permissible. The scope of the Review Petition does not extend to the extent that the court can substitute its view and change its finding of facts. There is no doubt to the settled legal proposition as submitted by Shri P.P.Rao but the court is also not oblivious of the fact that courts are meant to do justice and this court has been conferred a special responsibility to do complete justice and in case inadvertently or by mistake, we have recorded a wrong finding, we should not hesitate to change the same, as it would amount to perpetuating an illegality, which in fact resulted in miscarriage of justice”.
5.4. In Sasi (D) through LRs. Vs. Aravindakshan Nair and others (supra), the Hon’ble Supreme Court has reiterated the position of law that the error apparent on the face of the record must be self evident and should not be found out by process of reasoning. The same is the principle laid down in Susheela and another Vs. Rajbeer Singh and another (supra). It is also held in this decision that review is not permitted on a reversal of a decision by the full bench and that a decision or order which is erroneous in law or on merits cannot be considered as an error apparent on the face of the record for the purpose of reviewing the judgment.
5.5. In the case of T. Thimmaiah vs Venkatachala Raju (supra), the Hon’ble Supreme Court has made it clear that review is not permitted for re-appreciation of evidence.
5.6. In Union of India Vs., Sandur Manganese and Iron Ores Ltd., and others (supra), the Hon’ble Supreme Court has held that mere disagreement with the view of the judgment cannot be a ground for invoking the review jurisdiction and that the court shall interfere only when there is a glaring omission or patent mistake or a grave error has crept in the impugned judgment.
5.7. In the case of Kamlesh Verma Vs. Mayawati and others (supra), the Supreme Court refers to its earlier judgment in Sow Chandra Kante and another Vs. Sheik [(1975) 1 SCC 674] where it is held as below:
“12…….. A review of a judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility. A mere repetition, through different counsel, of old and over-ruled arguments, a second trip over ineffectually covered ground or minor mistakes of inconsequential import are obviously insufficient. The very strict need for compliance with these factors is the rationale behind the insistence of counsel's certificate which should not be a routine affair or a habitual step. It is neither fairness to the court which decided nor awareness of the precious public time lost what with a huge back- log of dockets waiting in the queue for disposal, for counsel to issue easy certificates for entertainment of review and fight over again the same battle which has been fought and lost. The Bench and the Bar, we are sure, are jointly concerned in the conservation of judicial time for maximum use. We regret to say that this case is typical of the unfortunate but frequent phenomenon of repeat performance with the review label as passport. Nothing which we did not hear then has been heard now, except a couple of rulings on points earlier put forward. May be, as counsel now urges and then pressed, our order refusing special leave was capable of a different course. The present stage is not a virgin ground but review of an earlier order which has the normal feature of finality”.
6. Therefore from the principles enunciated in the above rulings, it becomes amply clear that review can be granted only under the following circumstances.
i. the discovery of a new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made ii. on account of some mistake or error apparent on the face of the record iii. or for any other sufficient reason.
7. When it comes to the 2nd requirement, the error apparent must be glaring and self evident. Finding out the existence of error with support of reasons is not permitted. The mistake must be apparently evident. If these principles are applied to the present case, I come to conclusion that what was held by me while deciding RFA.No.1134/2011 that the plaintiff is entitled to 1/5th share in the value of the site as on the date of the suit is both a mistake and error apparent on the face of record. To come to this conclusion, no reasons need be supplied. Obviously a question arises as to how forcing the plaintiff to accept the value of the site on the date of the suit is justifiable? This question arises without any process of reasoning. Therefore the observation made by me in the judgment that the value of the suit should be considered on the date of the suit is an error apparent on the face of record. It is also a mistake which crept in inadvertently as it finds no explanation in the discussion raised for consideration in the judgment. In fact when the counsel for the respondent entered appearance in this review petition, I remember to have said in the open court that this was a mistake committed by me and therefore it required review. The parties were also advised to go for out of court settlement for determination of the value of the site, but they failed.
8. I also find that review can be granted for other sufficient reason as envisaged under Order 47 Rule 1 CPC. When I find a ground for review for sufficient reason, it is necessary to explain what those reasons are. If reasons are given, it should not be understood that reasons are supplied for the other ground of review i.e., error apparent on the face of the record. In fact what is held by the Hon’ble Supreme Court is that when review is sought on the ground of ‘Error apparent on the face of the record’, such an error must be glaring and does not require any further reasons to say that here is an error. But when review is found to be granted for sufficient other reason, reasons must be given.
9. This review petition arises from a judgment in an appeal in connection with a partition suit. Supposing that in a suit for partition, if the property involved is so small that the division by metes and bounds is found to be impossible, the parties should avail the provisions of the Partition Act; one of the sharers may purchase the shares of the others or the entire property be sold and proceeds thereof shared by the parties. In a circumstance like this, if a property is brought to sale, its value is determined on the date of sale and not on the date when the suit was filed. If the value is determined on the date of the suit, it is needless to say that it will not benefit any party to the suit. Similarly whenever an immovable property is attached in an execution case in connection with a money decree, auction will be held and the value of the attached property will be determined not on date of attachment, but the property will be sold in favour of the highest bidder in the auction. The same principles can be applied in this case also. The interest of the plaintiff and other share holders in the property should not suffer. Supposing that the LRs of the first defendant want to sell the property, he will not sell the property at the market value prevailing on the date of the suit. He will obviously go for the best market value as on the date of sale. For these reasons, I find that review can be granted. In fact this court in the case of Chinnamma (supra) has referred to the judgment of the Supreme Court in S.Nagaraj Vs. State of Karnataka [(1993) Supp.(4) SCC 595], where it is held as below:
"18. Justice is a virtue which transcends all barriers. Neither the rules of procedure nor technicalities of law can stand in its way. The order of the Court should not be prejudicial to anyone. Rule of stare decisis is adhered for consistency but it is not as inflexible in Administrative Law as in Public Law. Even the law bends before justice. Entire concept of writ jurisdiction exercised by the higher Courts is founded on equity and fairness. If the Court finds that the order was passed under a mistake and it would not have exercised the jurisdiction but for the erroneous assumption which in fact did not exist and its perpetration shall result in miscarriage of justice then it cannot on any principle be precluded from rectifying the error. Mistake is accepted as valid reason to recall an order".
10. The principle laid down in Arikala Narasa Reddy judgment cited by the respondent’s counsel is in fact helpful to allow the review petition, for what is observed by the Hon’ble Supreme Court is that the courts are meant for doing complete justice and in case wrong finding is recorded due to inadvertence or mistake, the court should not hesitate to grant review as continuation of the same will perpetuate an illegality and results in miscarriage of justice. Following this principle, as regards what is held in my judgment that ‘value of the site as on the date of suit’ is an inadvertent mistake and it certainly affects the interest of the other shareholders in the suit property. Therefore I come to conclusion that this review petition deserves to be allowed.
11. Since the learned counsel for the parties while arguing on the review petition also argued on the point regarding the date on which valuation should be considered, I do not think that further hearing is necessary in the appeal. The operative operation in the judgment of the appeal can be corrected. Hence the following order:
i. Review petition is allowed. The operative portion (b) in the judgment in the appeal RFA.No.1134/2011, is reviewed and stands corrected in the following manner.
The words “as on date of suit” are omitted and the operative portion (b) shall henceforth be read as follows:
“The judgment of the trial court is modified holding that the plaintiff is entitled to 1/5th share in the value of the site”.
Necessary corrections be made in the judgment in RFA.No.1134/2011.
Sd/- JUDGE Ckl/sd