IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF MARCH 2019 BEFORE THE HON’BLE MR.JUSTICE SREENIVAS HARISH KUMAR REVIEW PETITION NO. 411 OF 2016 IN REGULAR FIRST APPEAL No. 1753 OF 2012 Between:
1. Sri.Narasimhachar Son of Late M.Sesha Iyengar Since dead by his Legal Representatives:
a) Smt.Padmamma @ Padmasri Wife of Late Narasimhachar Aged about 85 years b) M.N.Vedavathi, D/o Late Narasimhachar W/o Annathashayanam Aged about 68 years c) M.N.Ranganayaki, D/o Late Narasimhachar Wife of H.S.Krishnachar Aged about 65 years d) M.N.Geetha D/o Late Narasimhachar Wife of Seshamani Aged about 62 years Lrs. 1 (a) to 1(d) are residing at No.1536, BSK II Stage, Srinivasanagar, Bengaluru – 560085.
e) M.N.Sreenath S/o Late Narasimhachar Aged about 60 years f) M.N.Radha D/o Late Narasimhachar Wife of Venugopal Aged about 58 years g) M.N.Sreekanth S/o Late Narasimhachar Aged about 55years h) M.N.Sreevathsa S/o Late Narasimhachar Aged about 53 years i) M.N.Prashanth S/o Late Narasimhachar Aged about 45 years Lrs. 1(e) to 1(i) are residing at No.174, 7th Main, 2nd Cross, Nagendra Block, Bengaluru – 560085.
…Petitioners (By Sri.B.V.Shankaranarayana Rao, Advocate) And:
1. Smt.Jayamma Wife of Pillapps Aged about 67 years Residing at No.1537 Srinivasanagar Bengaluru – 560050.
2. Smt.Sushila Wife of Rajanna Aged about 51 years Residing at No.1537 Srinivasanagar Bengaluru – 560050.
3. The Commissioner Bangalore Development Authority T.Chowdaiah Road Kumarapark West Bengaluru – 560052.
4. Sri.G.V.Venkoba Rao S/o Venkata Rao, Major, Residing No.530, 7th Cross, Hanumanthanagar, Bengaluru.
5. Kunchappa S/o Thammaiah Major G.No.4,Belimatti Lane, Veerabhadraiah Lane, Cottonpet, Bengaluru – 560002.
(Appeal abated vide order dated 28.10.2013) (Rounded off as per the order dated 27.06.2017 by the Hon’ble Court) …Respondents (By Sri.T.Seshagiri Rao, Advocate for R2 Sri.A.M.Vijay, Advocate for R3 v/o dated 17.09.2018, notice to R1 held sufficient. v/o dated 17.11.2017 notice to R4 is dispensed with) This Review Petition is filed under Order 47 Rule 1 of CPC, praying to review the order dated 30.07.2015 passed in RFA No.1753/2012, on the file of the Hon’ble High Court of Karnataka, Bengaluru.
This Review Petition coming on for Admission, this day, the Court made the following:
ORDER Heard the petitioners’ counsel and the respondents’ counsel on I.A.No.1/2016 filed under Section 5 of the Limitation Act for condoning delay of 378 days in filing this petition. The affidavit filed along with the application does not disclose sufficient cause for allowing the petition. Yet taking into consideration the fact that substantial interest of the review petitioners is involved in the property, and that petition came to be disposed of with an observation that the suit filed by the review petitioners is not maintainable, I am of the opinion that to meet the ends of justice, delay can be condoned on cost of Rs.5,000/- payable to respondent No. 2, the contesting party in this petition.
2. Heard the learned counsel for petitioners and learned counsel for respondent No.2 and also learned counsel for respondent No.3 on review petition and perused the judgment dated 30.07.2015 in RFA No.1753/2012. RFA was filed by the defendants in the suit in O.S.No.7018/1992. It appears that on 20.07.2015, RFA was dismissed for non-prosecution. Seeking recalling of the said order, the appellants in RFA made an application - I.A.No.2/2015. While entertaining the said application, it was observed that the suit filed by the review petitioners was not maintainable and therefore, the order dated 20.07.2015 was recalled to the limited extent of modifying the said order to hold that suit itself was not maintainable and therefore, the appeal would stand disposed of.
3. The learned counsel for the review petitioners submits that this order affects the interest of the petitioners. The review petitioners are the plaintiffs in the suit. They sought relief of the declaration of the title in respect of the suit property. The trial court decreed the suit. Therefore this court should have re- appreciated the evidence and decided the appeal on merits. The learned counsel argues that if the appeal had been taken up for decision on merits, the petitioners would have convinced the court that the suit was maintainable. He further argues that impugned judgment has been passed totally ignoring the scope of Order 41 of CPC. This is an error apparent on the face of the record. There is sufficient cause for granting review also and therefore he argues for allowing the review petition.
4. The learned counsel for respondent No.2 submits that the subject matter of the suit had been acquired by the BDA and when this point was pointed out, this Court held the suit was not maintainable. The respondents have filed the writ petition against the BDA and in the said writ petition, the review petitioners have sought for impleadment. The order sought to be reviewed is coming in the way of their application for impleadment being considered and therefore this is the reason for seeking review. There are no grounds to allow the review petition.
5. Having heard both sides, I am of the opinion that while passing an order on I.A.No.2/2015 filed by the appellants in RFA, there was no need to make an observation with regard to maintainability of this appeal. The trial court has answered all the issues and therefore, the appeal should have been decided after re-appreciating the evidence. In this view of the matter, I find error apparent on the face of the record to grant review. Therefore, this review petition is allowed. The judgment dated 30.07.2015 in RFA No.1753/2012 is reviewed. The order dated 20.07.2015 and 30.07.2015 are recalled. Appeal is restored to the file.
Put up the records in RFA No.1753/2012.
List for final hearing in the first week of June 2019.
Sd/- JUDGE NS