IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR.JUSTICE B. VEERAPPA REVIEW PETITION NO.220 OF 2019 IN WRIT PETITION NO.49539 OF 2018 (GM-CPC) BETWEEN:
SRI BHADRAIAH S/O SRI VEERABHADRAIAH AGED ABOUT 69 YEARS R/AT NO.22, 2ND CROSS 1ST MAIN, GANGADHARA LAYOUT GOVINDARAJANAGAR VIJAYANAGAR, BENGALURU 560091.
... PETITIONER (BY SRI.JAGADEESH FOR SRI.PAPI REDDY G, ADVOCATES) AND:
1. SMT PRAMILA W/O SRI NANJAIAH AGED ABOUT 42 YEARS NO.25, OPP. TO KIRAN ENGLISH MEDIUM SCHOOL, 2ND CROSS DODDANNA INDUSTRIAL AREA ROAD HEGGANAHALLI, VISHWANEEDAM POST BENGALURU - 560091 RESENTLY RESIDING AT:
NO.89, 2ND CROSS, BEHIND ANUPAMA SCHOOL SAIBABA NAGAR, ANDHRAHALLI MAIN ROAD BENGALURU - 560091.
2. SMT RADHA W/O SRI L SHIVALINGAIAH AGED ABOUT 41 YEARS RESIDING AT: NO.220 CHANNAPPA BUILDING HEGGANAHALLI, VISHWANEEDAM POST BENGALURU – 560091.
... RESPONDENTS THIS REVIEW PETITION IS FILED UNDER ORDER 47 RULE 1 R/W SECTION 114 OF CPC, PRAYING TO REVIEW THE ORDER DATED 07/03/2019 PASSED IN WRIT PETITION NO.49539/2018 (GM-CPC) BY ALLOWING THIS REVIEW PETITION AND DISMISS THE WRIT PETITION UPHOLDING THE ORDER OF THE TRIAL COURT PASSED ON IA-IX IN OS NO.5552/2012 ON GROUNDS OF JUSTICE AND EQUITY.
THIS REVIEW PETITION COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER There is a delay of 82 days in filing the Review Petition. To verify whether the review petitioner has made out any case to review the order dated 07.03.2019 passed in W.P.No.49539/2018 by this Court, the matter is taken up for consideration.
2. The only grievance made out by the learned counsel for the review petitioner is that in view of the dictum of the Hon’ble Supreme Court in the case of M/S.SCG CONTRACTS INDIA PVT. LTD., VS. K.S.CHAMANKAR INFRASTRUTURE PVT. LTD. AND OTHERS made in Civil Appeal No.1638 of 2019 that ordinarily written statement is to be filed within a period of 30 days. Further, grace period of 90 days is to be granted by the Court if reasonable reasons are accorded in writing and then, written statement will be taken on record. What is of great importance is the fact that beyond 120 days from the date of service of summons, the defendant shall forfeit the right to file the written statement and the Court shall not allow the written statement to be taken on record and Court has no further power to extend the time beyond the period of 120 days.
3. This Court having heard the learned counsel for review petitioner and taking into consideration that suit filed for specific performance is in respect of immovable properties and relying upon the judgment of this Court in the case of SMT.C.BHAGYA AND OTHERS VS. M/S.POORNAPRAJNA HOUSE BUILDING CO-OPERATIVE SOCIETY LTD., reported in ILR 2018 KAR 2559 wherein considering the judgment of three Judges Bench of the Hon’ble Apex Court, this Court held that this Court has to follow majority view and majority view was that the application can be allowed and the written statement can be taken on record even after a belated stage i.e., beyond 90 days period by imposing cost in order to do substantial justice between the parties and it does not impose an embargo on the power of the Court to extend the time and in the circumstances, the written statement has to be allowed in exceptional circumstances even at a belated stage by imposing cost. Relying on the judgment of the Hon’ble Supreme Court in the case of SANDEEP THAPAR VS. SME TECHNOLOGIES PRIVATE LIMITED reported in AIR 2014 SCW 431, wherein the Hon’ble Supreme Court relied on its judgment in the case of R.N.JADI AND BROTHERS AND OTHERS VS. SUBHASHCHANDRA reported in (2007) 6 SCC 420 (3 Judges Bench) proceeded to allow the application imposing costs of Rs.50,000/- payable by the petitioner to the plaintiff before the trial Court. The judgment now relied upon by the review petitioner was not brought to the notice of this Court, when this Court passed the order on merits. The judgment relied upon by the learned counsel for review petitioner has no application to the facts and circumstances of the present case. This court relied upon the judgment of the Three Judges Bench and proceeded to pass the impugned order. The petitioner has not made out any prima facie case on the face of the record to interfere with the impugned order.
4. The Hon’ble Supreme Court while considering the scope of the review under Order XLVII Rule 1 of Code of Civil Procedure in the case of KAMLESH VARMA VS. MAYAWATI & OTHERS REPORTED IN (2013) SC 3301 has held at para 15 and 16 as under:
“15. Review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order XLVII Rule 1 of CPC. In review jurisdiction, mere disagreement with the view of the judgment cannot be the ground for invoking the same. As long as the point is already dealt with and answered, the parties are not entitled to challenge the impugned judgment in the guise that an alternative view is possible under the review jurisdiction. Summary of the Principles:
16. Thus, in view of the above, the following grounds of review are maintainable as stipulated by the statute:
(A) When the review will be maintainable:-
(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;
(ii) Mistake or error apparent on the face of the record;
(iii) Any other sufficient reason.
16.1 The words ‘any other sufficient reason’ has been interpreted in Chhajju Ram v. Neki, [AIR 1922 PC 112] and approved by this Court in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius & Ors., [(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. & Ors., [JT 2013 (8) SC 275].
(B) When the review will not be maintainable:-
(i) A repetition of old and overruled argument is not enough to reopen concluded adjudications.
(ii) Minor mistakes of inconsequential import.
(iii) Review proceedings cannot be equated with the original hearing of the case.
(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.
(v) A review is by no means an appeal in disguise whereby an erroneous decision is re-heard and corrected but lies only for patent error.
(vi) The mere possibility of two views on the subject cannot be a ground for review.
(vii) The error apparent on the face of the record should not be an error which has to be fished out and searched.
(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.
(ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived.”
5. While exercising powers under Order XLVII Rule 1 of CPC, it is well settled that first and foremost requirement of entertaining a review petition is that the order or review of which is sought suffers from error apparent on the face of the record and permitting the order to stand will lead to failure of justice. In the absence of such error, finality attached to the judgment/order cannot be disturbed. An error, which is not self evident and has to be detected by the process of reasoning can hardly be said to be error apparent on the face of the record, justifying the Court to exercise the power of review. Re-agitating the points already decided is impermissible in review proceedings.
6. In view of the aforesaid reasons, the petitioner has not made out any error apparent on the face of the record and review petition filed is devoid of merits. Accordingly, review petition is dismissed.
Since the main review petition is dismissed, I.A.No.1/2019 for condonation of delay does not arise for consideration. Accordingly, I.A.No.1/2019 stands dismissed.
Sd/- JUDGE Prs*