IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S DIXIT WRIT PETITION No.575/2019 (GM-CPC) BETWEEN:
1. M.V.Mahesha S/o Venkatachalamurthy Aged about 41 years, 2. Smt.R.Priya W/o M.V.Mahesha, Aged about 32 years, Both are residing at 5th Cross, Subashnagara, Mandya City & District – 571 401.
... Petitioners (By Sri.N.K.Siddeswara, Advocate) AND 1. M.N.Ramesha S/o M.N.Nanjundaiah, Aged about 50 years, R/o No.338, 3rd Cross, Bandigowda Layout, Mandya City & District – 571 403.
2. M.K.Somashekara S/o B.Kalaiah, Aged about 58 years, R/o No.1975, 4th Cross, Subash Nagara, Mandya City & District – 571 401.
... Respondents This Writ Petition is filed under Article 227 of the Constitution of India praying to quash the impugned order dated 24.07.2018 passed by the learned Principal Senior Civil Judge and CJM, Mandya in Rev.Pet.No.5/2017 as per Annexure-F.
This Writ Petition is coming on for Preliminary Hearing this day, the Court made the following:
ORDER Petitioner being the defendant in O.S.No.82/2015 having suffered a judgment & decree dated 03.03.2017 had preferred the Review Petition No.5/2017 which came to be dismissed by the learned Principal Senior Civil Judge, Mandya; he has preferred this writ petition seeking to lay a challenge to the said dismissal.
2. Having heard the learned counsel for the petitioners and having perused the petition papers, this Court declines to grant indulgence in the matter because:
(a) the suit filed by the respondents in O.S.No.82/2015 for a decree of specific performance was founded on the Agreement to Sell dated 06.09.2013 which is a registered instrument admittedly; the Court has not granted the decree for specific performance is true; but, the decree for refund of the amount paid has been granted on the basis of evidentiary material placed by the parties on record; no error apparent on the face of the record is pointed out for indulgence in the review and therefore the review has been rightly rejected, both on merits and on delay;
(b) contention of the petitioners that only a sum of Rs.10 lakh was received by way of loan under the subject Agreement which is marked as Ex.P-1, having been considered by the trial Court stood rejected, regardless of what is stated by the Court on Issue No.1 ie., “In negative”; the Court at para 9 of the judgment has specifically held that the sale consideration was agreed to be Rs.18,50,000/- and that the petitioners had received a sum of Rs.18,00,000/- as advance; however, regard being had to the totality of the circumstances the trial Court treated the same as a loan transaction and therefore granted the money decree as mentioned in paras 10 & 11 of the judgment; nothing worth mentioning is brought to the notice of the Review Court for its indulgence; and, (c) it has been a settled position of law that the scope of review in terms of Sec.114 r/w Order XLVII Rule 1 of CPC is too restrictive as contradistinguished from appeal as observed by the Apex Court in the case of TUNGABHADRA & CO vs. GOVERNMENT, AIR 1964 SC 1372; the Court below has rejected the Review Petition keeping this aspect also in mind as an inarticulated premise; the grounds which the petitioners had urged in review can be urged only in appeal and thus the impugned order cannot be faltered.
In the above circumstances, the writ petition being devoid of merits stands rejected in limine.
Sd/- JUDGE UN