IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF JULY 2017 PRESENT THE HON’BLE MR.JUSTICE JAYANT PATEL AND THE HON’BLE MRS.JUSTICE S SUJATHA REVIEW PETITION NO.128 OF 2015 IN WRIT APPEAL NO.2172/2013 (LB-RES) BETWEEN:
SREEDHARA RAO N G @ N. SREEDHARA RAO S/O LATE NARAYANA RAO K AGED ABOUT 59 YEARS OCCUPATION: ADVOCATE R/O NO. 82, SREE SHANTHI NIKETANA 9TH CROSS, 2ND PHASE, I U D P LAYOUT CHITRADURGA-577501 ...PETITIONER (BY SRI.SREEDHARA RAO N G, PARTY-IN-PERSON) AND:
1. DEPUTY COMMISSIONER CHAIRMAN, CITY IMPROVEMENT TRUST BOARD, CHAIRMAN, CHITRADURGA URBAN DEVELOPMENT AUTHORITY, CHAIRMAN INTEGRAL URBAN DEVELOPMENT AUTHORITY, CHITRADURGA-577501 2. COMMISSIONER CHITRADURGA MUNICIPAL COUNCIL AND SECRETARY, INTEGRAL URBAN DEVELOPMENT PROGRAM CHITRADURGA-577501 ...RESPONDENTS THE PARTY-IN-PERSON HAS FILED THE ABOVE REVIEW PETITION UNDER ORDER 47 RULE 1 OF CPC, PRAYING TO REVIEW THE ORDER DATED:05/01/2015 PASSED IN WA NO. 2172/2013, ON THE FILE OF THE HON'BLE HIGH COURT OF KARNATAKA, BANGALORE.
THIS REVIEW PETITION COMING ON FOR ADMISSION THIS DAY, JAYANT PATEL J., PASSED THE FOLLOWING:
ORDER The present petition is directed against the order dated 5.1.2015 for invoking the power of review of this court.
2. We have heard party-in-person.
3. The contention raised by the petitioner is that, at the relevant point of time when the suit was filed, there was no marking of road and therefore the subject matter of writ petition was different and that of the civil suit.
4. The aforesaid aspect has not been properly considered. Hence, this Court may review the order.
5. We may record that, at para.7 to 14 in the above referred Judgment, it has been observed as under:
“7. The appellant, who is party-in-person contends that the subject matter of the civil suit is entirely different and that relief sought in the writ petition is altogether different. According to him, writ petition is filed to issue a direction to form 15 mtrs. Width road as per the notification. Since the appellant believed that there would be a road of 15 mtrs. width purchased the Site No.82. On account of formation of Site No.82A, his site has become a middle site. In the circumstances, he contends that the learned Single Judge has committed an error in dismissing the writ petition. Therefore, he requests the Court to allow the writ appeal.
8. Learned Government Advocate submits that the writ petition itself was not maintainable, since the petitioner was required to seek all relief which he is entitled to, in the civil suit in view of Order II Rule 2 CPC. According to him, whatever the prayer the petitioner intended to seek was required to be prayed in the civil suit filed by him and that on piecemeal basis, the appellant cannot file a civil suit for partial relief and approach this Court for the remaining relief by invoking Article 226 of the Constitution of India. He further submits that by misrepresentation of facts, the appellant has filed the writ petition without even producing the sale deed and other relevant documents. Therefore, he requests the Court to dismiss the appeal.
9. Having heard the appellant who is party-in-person and the learned Government Advocate.
10. What is to be considered by this Court in this appeal is: “Whether any error is committed by the learned Single Judge in rejecting the writ petition?”
11. At the first instance, we have noticed that the appellant who is claiming to be an auction purchaser of a corner site bearing No.82 from the second respondent, for the reasons best known to him has not produced the sale deed. He has also not produced the layout plan or the auction notice to show that the respondents have played a fraud or misrepresented the facts to the appellant to believe that he is going to purchase the site which is having a road width of 15 mtrs.
12. As rightly pointed out by the learned Government Advocate, when the appellant has filed a civil suit claiming compensation and refund of excess money on the ground that the site allotted to him by the second respondent is not in accordance with the layout plan and if really the contention that the respondents were required to form a 15 mtrs. width road, he was required to plead and seek all possible prayer in the civil suit instituted by him. When the appellant has not sought the whole relief and even if he was intending to file a civil suit claiming partial relief, he was required to obtain permission of the Court to institute a suit or writ petition later in respect of the remaining prayer, in view of Order II Rule 2 of CPC.
13. Order II Rule 2 of CPC reads as hereunder:
2. Suit to include the whole claim– (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.
(2) Relinquishment of part of claim – Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.
(3) Omission to sue for one of several beliefs – A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.
14. In order to appreciate this contention, the appellant was required to produce the copy of the plan and the judgment and decree passed by the Civil Court, so also the judgment passed by this Court in SecondAppeal. In the absence of production of these documents and in the absence of leave obtained by him to file a suit or writ petition at a later stage in respect of the prayer which is not included in the suit, he cannot be permitted to file a writ petition on the same ground. In the circumstances, we do not see any merits in this appeal.
Accordingly, the appeal is dismissed”.
6. The aforesaid shows that the contention about the separate relief and separate subject matter of the civil suit in contra-distinction to the writ petition was considered. But, the Court did not accept the contention of the petitioner-original appellant.
7. Merely because the contention is not accepted cannot be said to be an error apparent on the face of the record. In the present case, the contention has been considered and negatived. Under the circumstances, we do not find that there is any valid ground to review the order as sought to be canvassed.
8. It is hardly required to be stated that, review power is not to be invoked in disguise of the appeal. Under the circumstances, we do not find any case made out for review.
Hence, the petition is dismissed.
Sd/- JUDGE Sd/- JUDGE Sk/-