IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25th DAY OF JANUARY, 2019 PRESENT THE HON’BLE MR. JUSTICE K.N. PHANEENDRA AND THE HON’BLE MR.JUSTICE B.A. PATIL REVIEW PETITION NO.322/2018 IN MFA NO.5490/2016 (FC) BETWEEN:
Smt. Srithi T.S. D/o T. Sreenivasulu Aged about 32 years R/at No.201, Raghava Residency Shanthinagar, Masab Tank Hyderabad-560 028 Telangana State.
… Petitioner (By Sri G.R. Lakshmipathi Reddy, Advocate) AND:
Sri Ajay Krishna Naidu C.S., S/o Sriramulu Naidu Aged about 33 years R/at Door No.5-12-1118/14, ‘Lakshmi’, Bhagavathi Nagar 1st Main Road, Mannagudda Mangaluru-575 003 Karnataka State.
… Respondent (By Sri A. Mahesh Chowdhary, Advocate) This Review Petition filed under order XLVII Rule 1 r/w Section 114 of CPC, praying to 1) put up the records in MFA No.5490/2016 on the file of this Hon’ble Court; 2) Review and reconsider the order dated 07.09.2017 made in MFA No.5490/2016 and consequently dismiss the appeal confirming the order dated 14..07.2016 MADE IN Misc.Petition No.05/2015 on the file of Family Court, D.K., Mangalore; and 3) Grant such other relief or reliefs Court may fit to grant such other circumstances of the case.
This Review Petition coming on for orders this day, K.N.PHANEENDRA J., delivered the following:-
O R D E R Heard the learned counsels appearing for the petitioner as well as the respondent.
2. The present review petition is filed calling in question the judgment dated 7.9.2017 passed by this Court in MFA.No.5490/2016. Before adverting to the grounds urged before this Court by the learned counsel for the petitioner, we feel that it is just and proper to have necessary factual matrix of this case.
3. The petitioner and the respondent are the wife and the husband respectively. It is an admitted fact that their marriage was solemnized on 25.4.2012 at Hyderabad. Due to some misunderstanding, the husband has filed a petition in MC.No.239/2012, seeking to declare their marriage as null and void. By virtue of the said petition, the notices were ordered and holding that notice on the wife has been served, the petition was allowed granting annulment of marriage as sought for. After coming to know about the said decree, the wife has challenged the same by way of Miscellaneous Case No.5/2015 and the same came to be allowed vide order dated 14.7.2016 by the trial Court restoring MC.No.239/2012 to be considered on merits after providing opportunity to both the parties. Being aggrieved by the said order restoring the petition, the husband has approached this Court in the aforesaid MFA.No.5490/2016 seeking setting aside the order passed by the trial Court in restoring the said MC petition.
4. During the course of submission of arguments before this Court, both the counsels have submitted that the trial Court need not go into the factum and finding regarding annulment of marriage once again as the findings have already given by the trial Court and those findings with regard to the annulment of the marriage, need not be touched upon. However, both the counsels have requested this Court to remit the matter to the trial Court only for the limited purpose of considering the factum of remarriage and for fixing the permanent alimony to the petitioner herein. On the basis of the said submissions made by the learned counsels, this Court has passed the order allowing the appeal in part remitting the matter only for the limited purpose of proving the factum of remarriage and for taking appropriate decision on the aspect of permanent alimony to the petitioner herein.
5. The learned counsel for the petitioner in this petition has seriously contended before the Court that, the respondent-husband has played fraud before the trial Court as well as before this Court. He also contended that the learned counsel who appeared for the respondent in MFA has not properly represented and erroneously submitted before the Court which amounts to consenting for the annulment of the marriage. Therefore, relying upon such submission, this Court has erroneously passed the judgment which requires to be modified. He further contended that once the matter has been remitted to the trial Court, fullest opportunity should be given to the parties. Therefore, he submitted that principles of natural justice has been affected and same has to be corrected by this Court. He has also drawn our attention that, the wife has also filed a petition for restitution of conjugal rights as well as the complaint against the husband for the offence punishable under Section 498A of IPC, etc. If the opportunity is not given to challenge the decree passed by the trial Court with regard to annulment of the marriage, aforesaid proceedings with regard to conjugal rights as well as complaint for the offence punishable under Section 498A of IPC may also become infructuous. For all these reasons the judgment passed by this Court requires to be reviewed.
6. Per contra, the learned counsel appearing for the respondent contended that absolutely it is not the judgment passed on merits of the case. It is the order passed by this Court on the consent given by both the counsels restricting their claim before the trial Court, regarding fixing of the permanent alimony to the wife by the trial Court. Therefore, the petitioner has not made out any case that there is any error or mistake in the judgment passed by this Court. There are no pleadings pleaded by the respondent or counsel on this particular aspect. Therefore, he contended that petition is devoid of merits and the same is liable to be dismissed.
7. In order to review its own order passed by this Court, the petitioner has to make out the grounds for review as contemplated under Order XLVII Rule 1 of CPC. We have to gainfully extract the said provision for convenience, which reads thus:-
i) In order to file a review petition a person has to make out the ground that he has discovered a new and important matter or evidence which, after the exercise of due diligence was not within his knowledge; or ii) on account of some mistake or error apparent on the face of the record; or iii) for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, then only he may apply for a review of the judgment.
(Emphasis supplied) 8. On careful perusal of the grounds urged in this review petition, there are absolutely no averments that in spite of due diligence some new or important matter has been discovered and the same was not within the knowledge of the party and that ground is not pleaded and not available to the present petitioner. Consequently, learned counsel for the petitioner has not made out a case as to what is an error or mistake committed by this Court in the judgment. As we have already noticed in the judgment, it is categorically observed by this Court that both the counsels have conceded for passing such judgment which is challenged by way of review. Thus, they have clearly in unequivocal terms consented for passing the judgment by this Court for remitting the matter to the trial Court only for limited purpose with regard to remarriage and for fixing the permanent alimony to the wife, but the finding regarding annulment of marriage need not be touched upon by the trial Court.
9. Therefore there are absolutely no grounds urged with regard to any mistake or error apparent on the face of the record or any sufficient reason in such a manner that even a consent order can be set aside. Though the learned counsel for the petitioner has argued that some fraud has been played by the respondent as well as his counsel before this Court, the same has not been pleaded as a ground in the review petition. More over, it is not brought by the learned counsel for the petitioner as to what is the nature of fraud that has been played by the respondent or his counsel. Fraud is a pure question of fact which has to be proved by proper pleadings and evidence before the Courts of law. In the absence of such materials we do not find any reason for reviewing the judgment - 10 -
passed by this Court which virtually is a consenting order passed by this Court. Hence, review petition being devoid of merits is liable to be dismissed.
Accordingly, review petition is dismissed.
As we have considered the review petition on merits after hearing both the counsels, delay need not come in the way of disposing the petition on merits. Therefore, I.A.No.1/2018 filed for condonation of delay of 383 days is hereby condoned.
I.A.No.2/2018 is dismissed as it does not survive for consideration.
Sd/- JUDGE *ck/-
Sd/- JUDGE