R.P. No. 1245/2014. Case: P.C. Kumaraswamy and Ors. Vs Channabasamma and Ors.. High Court of Karnataka (India)

Case NumberR.P. No. 1245/2014
CounselFor Appellant: Krishna Swamy S., Advocate and For Respondents: K.S. Ramaswamy Iyengar, Advocate
JudgesAravind Kumar, J.
IssueCode of Civil Procedure, 1908 (CPC) - Order XLVII Rule 1; Order XX Rules 1, 2, 3, XX; Sections 108, 99; Code of Criminal Procedure, 1973 (CrPC) - Section 369; Karnataka Land Revenue Act, 1964 - Sections 132, 132(3), 133, 14, 152, 4, 6(2)
Judgement DateSeptember 15, 2015
CourtHigh Court of Karnataka (India)


Aravind Kumar, J.

  1. Appellants in RSA 1670/2013 are seeking for review of Judgment and decree passed by Co-ordinate Bench of this court on 16.07.2014 whereunder second appeal came to be rejected at the threshold without being admitted after hearing learned advocates appearing for the parties.

  2. It is the contention of Sri. S. Krishna Swamy, learned counsel appearing for review petitioners who had also appeared on behalf of appellants in second appeal before the Co-ordinate Bench that;

    (i) Learned Judge who disposed of the appeal had failed to take note of the revenue entries standing in the name of review petitioners which was not rebutted;

    (ii) Learned Judge has signed the Judgment after his retirement and same is impermissible in law;

    (iii) There is no provision under C.P.C for a retired Judge to sign the Judgment beyond 60 days after it is dated and when no date was fixed for pronouncement.

  3. On these grounds he seeks for review of Judgment and decree passed on 16.07.2014 by Coordinate Bench of this Court which was presided by Hon'ble Dr. Justice Jawad Rahim and prays for allowing the review petition. In support of his submissions he has relied upon the following Judgments:

    (i) AIR 2001 SC 3173 - Anil Rai v. State of Bihar

    (ii) ILR 1995 Karnataka 3063 - Gem Travels v. Syndicate Bank

    (iii) ILR 1986 Karnataka 2151 - Assistant Commissioner v. Chandasaheb Mohaddinsab Mujawar

  4. Sri. K.S. Ramaswamy Iyengar, learned counsel appearing for respondent No. 1 would contend that review cannot be an appeal in disguise and grounds urged in support of the review petition, if considered, Would tantamount to rehearing the appeal and issue regarding revenue entries had been considered by the Bench which heard and disposed of the matter and as such, he prays for dismissal of review petition. In support of his submissions he has relied upon the following Judgments:

    (i) AIR 1995 SC 455 - Meera Bhanja v. Nirmala Kumari Choudhury

    (ii) (1997) 8 SCC 715 - Parsion Devi and Others v. Sumitri Devi and Others

  5. Having heard the learned Advocates appearing for parties and on perusal of grounds urged in the review petition as also judgments relied upon by respective learned Advocates and on perusal of records of RSA No. 1670/2013, this Court is of the considered view that following points would arise for consideration:

    "Whether judgment and decree passed in RSA No. 1670/2013 dated 16.07.2014 is required to be reviewed for any reason?"

  6. There cannot be any dispute with regard to proposition that scope of review is having limited jurisdiction and it is also circumscribed by the language employed under Order XLVII Rule 1 of CPC. In the event of three (3) grounds specified in Sub-Rule (1) of Rule 1 Order XLVII is satisfied, review can be entertained as otherwise not. These three (3) conditions can be found in Clauses (a) to (c) of Sub-Rule (1) of Rule 1 of Order XLVII CPC are;

    (a) "by discovering all new and important matter or evidence which, after due diligence was not within the knowledge or review petitioner/petitioner's knowledge or could not be produced by him/them at the time when the decree was passed or order made;

    (b) mistake or error apparent on the face of the record;

    (c) for any other sufficient reason;"

  7. An error which has to be established by long drawn process of reasoning on the points where there may be conceivably two points of view or two opinions can hardly be said to be an error apparent on the face of record. Thus, provisions of Order XLVII Rule (1) CPC mandate high degree of diligence on the part of party seeking review, since object is to secure finality of litigation at some stage or other in the long drawn process. A review by no means is an appeal in disguise where an erroneous decision is rebuilt and corrected but lies only for correction of errors apparent on the face of record. The distinction between a mere erroneous decision and an error apparent on the face of record has to be drawn where error on substantial point of law stairs one in the face or there can be probably no two opinions. Then clear case of error apparent on the face of record is held to be made out. Though "error on the face of record" cannot be defined precisely it has to be necessarily held as already noticed hereinabove that an error which has to be established by long drawn process of reasoning on points where there can be two views or two opinions cannot be held or construed as an error apparent on the face of record.

  8. Power of review is to correct the mistake it is not the substitution of view earlier expressed to that off a fresh view or an alternate view. Review proceedings are not by way of appeal and Hon'ble Apex Court in the case of Kamlesh Verma v. Mayawati & Ors., reported in 2013 AIR SCW 4944 after considering the catena of judgments commencing from AIR 1922 P.C. 112 till 2013 has laid down the contours under which a review petition can be entertained and when it ought not to be entertained. It has been held as under;

    "16. Thus, in view of the above, the following grounds of review are maintainable as stipulated by the statute:


    1. When the review will be maintainable:--

    (i) Discover 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) Any other sufficient reason.

    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: (AIR 1954 SC 526), 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: (2013 AIR SCW 2905).

    (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 apparent on the face of the record should not be an error which has to be fished out and searched.

    (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."

  9. Though above referred contours are not exhaustive, they are illustrative. Keeping in mind above referred illustrations, facts on hand is being examined as to whether present review petition would fit within any of the illustrations referred to by Hon'ble Apex Court and if the answer is 'yes', as to which of illustrations/contingencies indicated therein would be attracted to the present review petition? If a point is urged, addressed to and a finding is recorded by the Court, then parties to said judgment in review jurisdiction cannot contend that view taken by the Court at the first instance is erroneous and view which is sought to be proposed in the review petition ought to have been taken. Keeping these aspects in mind let me examine the facts on hand.

  10. Review petitioners were arrayed as defendants 1 and 2 before trial Court. Respondents 1 and 2 were arrayed as plaintiff and 3rd defendant before trial Court. Plaintiff instituted a suit against defendants i.e., review...

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