IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF NOVEMBER 2019 BEFORE THE HON’BLE MR.JUSTICE S.G.PANDIT REVIEW PETITION No.285/2018 IN WRIT PETITION No.24886/2017 (GM-CPC) BETWEEN:
SRI C M PRANESH S/O LATE SRI C MAYANNA AGED ABOUT 35 YEARS R/AT NO.158, 1ST FLOOR 4TH MAIN ROAD 2ND CROSS, ITI LAYOUT BALAGANGADHARANAGARA MALLATHAHALLI BENGALURU-560056.
... PETITIONER (BY SRI.R B SADASIVAPPA, ADV.) AND:
SMT.P DEVIKA @ SUMA D/O SRI PAPANNA AGED ABOUT 42 YEARS R/AT NO.158, GROUND FLOOR 4TH MAIN , 2ND CROSS ITI LAYOUT BALAGANGADHARANAGARA MALLATHAHALLI BENGALURU-560056.
... RESPONDENT (BY SMT. PRAMILA NESARGI, SR.COUNSEL FOR SRI.HEMANTH KUMAR D, ADV.) THE PETITION IS FILED UNDER ORDER 47 RULE 1 R/W SECTION 114 OF CPC, PRAYING TO REVIEW THE ORDER DATED 03.07.2018 PASSED IN W.P.NO.24886/2017 (GM-CPC).
THIS PETITION HAVING BEEN HEARD AND RESERVED ON 17/09/2019 COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER 1. The petitioner/respondent in W.P.No.24886/2017 is before this Court under Order 47 Rule 1 of the Code of Civil Procedure praying to review the order dated 03.07.2018 passed in the above writ petition.
2. The petitioner herein was respondent and respondent was petitioner in W.P.No.24886/2017. They would be referred to as they stand in the writ petition.
3. Petitioner filed the writ petition, questioning the order dated 26.04.2017 passed on I.A.No.5 in O.S.No.8222/2012, by which; the application filed under Section 10 of CPC was rejected. This, Court, by order dated 03.07.2018 allowed the writ petition, consequently allowed I.A.No.5 filed under Section 10 of CPC and stayed the proceedings in O.S.No.8222/2012 till disposal of O.S.No.4099/2015 (O.S.No.16/2012).
4. The brief facts which are necessary to deal with the present review petition are that:
5. The petitioner filed O.S.No.16/2012 on 16.01.2012 before the Family Court at Bangalore against her husband Mr.C.M.Lokesh for partition of half share in the suit schedule property; for permanent injunction restraining the defendant and to declare that the sale deed dated 15.06.2012 executed by her husband in favour of his brother is not binding on the petitioner. The schedule property of the said suit is as follows:
“SCHEDULE All the pieces and parcel of the property bearing site No.158, formed in Sy No.6/2, 10/1, 11, 12, 13, 14/1, 14/3, 18, 21 & 28 of Mallathahalli village, Yeshwanthpura Hobli, Bangalore North Taluk, formed by the I.T.I Employee’s Housing Co-operative Society Ltd., Now Rajarajeshwari City Municipal Council Katha Sl.No.275, measuring East to West 30 feet (Thirty Feet) North to South 50’-0 (Fifty) feet, total area being 166.66 Square yards or 1500 Square feet and bounded on:
East by : Site No.157 West by : Site No.159 North by : Road South by : Site No.197 Presently: Now constructed ground and first floor. No.158, 4th Main, 2nd Cross, ITI Layout, Balagangadhara Nagar, Mallathahalli, Bangalore- 560 056.”
6. On 15.11.2012, the respondent filed suit in O.S.No.8222/2012 before the City Civil Judge at Bangalore praying for the following reliefs against the suit schedule ‘A’ and ‘B’ properties, which read as under:
a) declaring that the Plaintiff is the absolute owner of the schedule ‘B’ property which is a part of schedule ‘A’ property and for possession of the schedule ‘B’ property directing the defendant to vacate and deliver the vacant possession of the schedule ‘B’ property to the plaintiff;
b) direct the defendant to pay damages @ Rs.15,000/- per month towards the illegal use and occupation of the schedule ‘B’ property by the defendant from the date of the suit till the date the defendant vacates and delivers vacant possession of the suit schedule ‘B’ property to the plaintiff;
c) for permanent injunction restraining the defendant, her agents and servants from interfering with the plaintiff’s lawful and peaceful possession and enjoyment of the first floor of the schedule ‘A’ property;
d) and grant such other relief or reliefs as this Hon’ble Court deems fit under the circumstances of the case, including costs, in the interest of justice and equity.
“SCHEDULE-‘A’ Residential property bearing No.158, CMC Khatha Sl.No.275, new BBMP Khatha No.158/275/158 in the layout formed in Sy.Nos.6/1, 6/2, 10/1, 10/2, 11, 12, 13, 14/1, 14/3, 18, 21 & 28 of Mallathahalli village, Yeshwanthpura Hobli, Bangalore North Taluk by ITI Employees’ Housing Cooperative Society Ltd., now coming under the jurisdiction of BBMP, Rajarajeswari Nagar Sub-Division, Bangalore consisting of ground floor measuring about 1,000 Sft. and first floor consisting of about 1,200 Sft., and constructed on a site measuring East to West:30’ and North to South:50’ and bounded on the:
East by : Property No.157 West by : Property No.159 North by : Road South by: Property No.197 SCHEDULE-‘B’ Ground floor of the property bearing No.158, CMC Khatha Sl.No.275, new BBMP Khatha No.158/275/158 in the layout formed in Sy.Nos.6/1, 6/2, 10/1, 10/2, 11, 12, 13, 14/1, 14/3, 18, 21 & 28 of Mallathahalli village, Yeshwanthpura Hobli, Bangalore North Taluk by ITI Employees’ Housing Cooperative Society Ltd., now coming under the jurisdiction of BBMP, Rajarajeswari Nagar Sub-Division, Bangalore, measuring about 1,000 Sft. and constructed on a site measuring East to West: 30’ and North to South:50’ and bounded on the:
East by : Property No.157 West by : Property No.159 North by : Road South by: Property No.197”
7. In O.S.No.16/2012 (O.S.No.4099/2015), the petitioner had alleged that the first defendant, her husband had transferred the suit schedule property in favour of his brother under the registered sale deed dated 15.06.2012, as such, she had sought for a relief that the said sale deed is not binding on her. Thereafter, she filed an application in the suit in O.S.No.16/2012 (O.S.No.4099/2015) which was pending before the Family Court at Bangalore for impleading the brother of the husband of the petitioner, which was allowed on 21.11.2014. Subsequent to impleading of brother of petitioner’s husband, the jurisdiction of the Family Court got excluded and the plaintiff prayed to return the plaint for re-presentation to the appropriate Court, subsequent to impleading of brother of husband of the petitioner. Accordingly, the same was represented before the City Civil Court and the same was numbered as O.S.No.4099/2015.
8. In the meanwhile, plaintiff in O.S.No.8222/2012 i.e., brother of the plaintiff’s husband had filed an application under Order 39 Rules 1 and 2 of CPC, restraining the petitioner from interfering with the possession and enjoyment of the first floor i.e. ‘B’ schedule property in O.S.No.8222/2012. The trial Court refused to grant an order of temporary injunction. The plaintiff therein challenged the same in MFA No.4198/2013 wherein this Court, by judgment dated 14.08.2014 allowed the appeal and granted temporary injunction in respect of the first floor i.e., ‘B’ schedule property in O.S.No.8222/2012. Against granting of the interim order of injunction, the petitioner approached the Hon'ble Apex Court in SLP (C) No.28603/2014. The Hon'ble Apex Court passed the following order:
Heard learned counsel for the parties .
This Court while issuing notice on 7th November, 2014, had directed that status-quo, existing as on that day, shall be maintained. The parties are at cavil with regard to the possession. We have been apprised that the suit is till pending for adjudication before the High Court.
In view of the aforesaid, we direct that the order of status-quo passed by this Court shall remain in force till the suit is finally disposed of.
The special leave petition is, accordingly, disposed.”
9. The Hon'ble Apex Court by the above order, directed the parties to maintain status-quo till disposal of the suit, which means the parties are directed to maintain status-quo in respect of the first floor i.e., ‘B’ schedule property in O.S.No.8222/2012.
10. Subsequently, petitioner herein filed application under Section 10 of CPC to stay the further proceedings in O.S.No.8222/2012, pending disposal of O.S.No.4099/2015 (O.S.No.16/2012). The said application came to be rejected, against which, W.P.No.24886/2017 was filed. The said writ petition came to be allowed by order dated 03.07.2018, against which, the present review petition.
Heard the learned counsel for the petitioner and learned counsel for the respondent.
11. Learned counsel for the respondent submits that the order under review suffers from error apparent on the face of the record and as such, it requires to be reviewed. It is his submission that O.S.No.4099/2015 which is re- presented is to be treated as subsequent suit and in the facts of the present case, O.S.No.8222/2012 cannot be treated as a suit filed subsequent to O.S.No.4099/2015 (O.S.No.16/2012). He relies upon a decision of the Hon'ble Apex Court in AIR 1973 SC 313 in the case of AMAR CHAND INANI v/s UNION OF INDIA and submits that presentation of plaint in proper Court, after return is in not a continuation of the suit as filed in wrong Court. Once it is re-presented, the said suit is to be treated as a suit filed as on the date of re-presentation.
12. The next point urged by the learned counsel for the respondent is that the subject matter in both the suits are not identical and the issue is not directly and substantially in issue in both the suits. Therefore, Section 10 of CPC would not apply. Thus, prays for allowing the review petition.
13. Per contra, learned counsel for the petitioner would submit that the suit in O.S.No.4099/2015 which is renumbered subsequent to presentation before the City Civil Court is the suit filed by the petitioner prior to filing of the suit by the respondent in O.S.No.8222/2012. It is submitted that initially, on 16.01.2012, O.S.No.16/2012 was filed before the Family Court against her husband/first defendant seeking partition, injunction and for an order to the effect that the sale deed executed by her husband in favour of his brother is not binding on her. As on the date of filing the suit and till impleadment of second defendant/brother of the first defendant, the Family Court had the jurisdiction. It is not the case of Court having no jurisdiction at all. But, subsequent to impleadment of petitioner’s husband’s brother, jurisdiction of the Family Court got excluded. Therefore, it is submitted that decision cited by the learned counsel for the respondent would have no application. Further, it is submitted that the Hon'ble Apex Court had directed the parties to maintain status-quo in respect of the first floor which is ‘B’ schedule property in O.S.No.8222/2012. Therefore, prays for dismissal of the review petition.
14. Review of the order or judgment is not re-hearing of the petition. Review could be taken up only if the party who prays for review satisfies the Court with regard to the material error on the face of the order or judgment. The Hon'ble Apex Court, in the case reported in (2013) 8 SCC 320 in the case of KAMALESH VERMA v/s MAYAVATHI AND OTHERS has laid down as to when the review would be maintainable and when the review would not be maintainable. The relevant portion of the above decision reads as follows:
SUMMARY OF PRINCIPLES 20.1 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.
The words “any other sufficient reason” have been interpreted in Chhajju Ram v. Neki and approved by this Court in Moran Mar Basselios Catholicos v. Most Rev. Poulose Athanasius 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.
20.2 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 reheard 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.
Keeping in mind the above principles laid down by the Hon'ble Apex Court, the present review petition will have to be examined.
15. Learned counsel for the respondent at the first instance has urged that O.S.No.4099/2015 filed by the petitioner is a subsequent suit and the suit filed by respondent in O.S.No.8222/2012 is the suit filed prior to that suit. It is his submission that the suit re-presented before the Court of jurisdiction would be the date to be considered for taking the date of institution of the suit. The Hon'ble Apex Court in the decision referred to above by the learned counsel for the respondent in AMAR CHAND INANI (supra) case, has dealt with the matter whether the plaintiff had instituted the suit in the Court which had no jurisdiction to entertain the suit itself, subsequently, the plaint was returned and it was re-presented to the appropriate Court which had the jurisdiction. In those circumstances, the Hon'ble Apex Court has observed that presentation of plaint in appropriate Court after return is not continuation of suit as it was filed in a wrong Court, for the purpose of calculation of limitation under Section 4 of the Limitation Act. But in the instant case, it is not the case of the respondent that as on the date of filing O.S.No.16/2012, the Court had no jurisdiction at all, which was filed before the Family Court at Bangalore. As on the date of filing the said suit, the Family Court had jurisdiction to deal with the subject matter as the plaintiff and first defendant were husband and wife and wife had sought for relief of partition and permanent injunction. During the pendency of the said suit, as the first defendant/husband alienated the property by registered sale deed on 15.06.2012 in favour of his brother, the petitioner herein, it became necessary to implead the brother of the petitioner’s husband. Hence he was impleaded as second defendant by order dated 21.11.2014, as such, jurisdiction got excluded. The jurisdiction as to subject matter is totally distinct and stands on a different footing than pecuniary jurisdiction and territorial jurisdiction. The Family Court, in which, O.S.No.16/2012 (O.S.No.4099/2015) was instituted as on the date of institution, the Court had the jurisdiction. Therefore, in the facts of the present case, the decisions relied on by the learned counsel for the respondent would have no application. The contention raised by the learned counsel for the petitioner that the date of filing is to be taken from the date of re-presentation to the Court, which had jurisdiction, has no merit in the facts of present case.
16. The next contention urged by the learned counsel for the petitioner is that, at paragraph 11 of the order dated 03.07.2018 passed in W.P.No.24886/2017, this Court had observed that the petitioner had an interim order from the Hon'ble Supreme Court not to dispossess her from ‘B’ schedule property in SLP (C) No.28603/2014 which is incorrect. As noticed earlier, O.S.No.8222/2012 filed by the respondent herein relates to ‘B’ schedule property which is first floor of the ‘A’ schedule property. The respondent had filed an application for temporary injunction under Order 39 Rules 1 and 2 of CPC, which was rejected by the trial Court, against which, the respondent had filed MFA No.4198/2013, which came to be allowed, granting injunction against the petitioner herein, in respect of the first floor i.e., ‘B’ schedule property. The petitioner herein, aggrieved by the said order had approached the Hon'ble Apex Court in SLP (C) No.28603/2014 wherein the Hon'ble Apex Court had directed the parties to maintain status-quo in respect of the first floor i.e. ‘B’ schedule property.
17. This court in the order under Review at Para-11 observed that the petitioner had the benefit of the order of the Hon’ble Supreme Court not to dispossess her from the ‘B’ Schedule property. But in fact the Petitioner had the benefit of status quo in respect of the ‘B’ Schedule property in SLP No.28603/2014. Therefore, the observation at Para-
11 that “she had the benefit of the order of the Hon’ble Supreme Court not to dispossess her from ‘B’ Schedule property” be read as “she had the benefit of the order of status quo of the Hon’ble Supreme Court in respect of ‘B’ Schedule property.”
18. For the reasons stated above, I find no error apparent on the face of the record to review the order dated 03.07.2018 passed in W.P.No.24866/2017. Accordingly, the review petition stands rejected.
Sd/- JUDGE mpk/-* CT:bms