AI Structured Summary
Not yet generated for this judgment
Judgment
The above petition is filed seeking review of the Judgment dated 12.11.2014 passed by this Court in RSA No.1063/2010 and to set aside the said judgment and dismiss the appeal.
Petitioners are respondents 1(a) and 1(b) in RSA No.1063/2010. Respondents 1(a) to 1(d) are the appellants and respondents 2 to 6 are respondents 2 to 6 in the said appeal.
The brief facts of the case are as follows:
-The review petitioners father H.K. Narasimhaswamy filed O.S. No.271/1991 before the Civil Judge Junior Division, Malavalli seeking declaration of the title to the land bearing Sy.No.64/C of Halagur Village of Malavalli Taluk measuring 02 acres 33 guntas and for permanent injunction. The first defendant and the present respondents 2 to 6 are defendants in the said suit.
The plaintiff claimed that his father Kunnegowda and defendants 1 and 4 are the brothers of his father, defendant No.2 is the wife of defendant No.1, defendant No.3 is his relative i.e. lineal descendant of his grand father. He further claimed that, in the family partition the suit property was fallen to the share of his father and his father had mortgaged the said suit in favour of defendant No.1 on 24.09.1952. He further contended that the said mortgage is redeemed during the lifetime of his father himself but still the defendants are interfering with the possession. Thus, sought for declaration of title and injunction.
Defendants No.1 and 3 alone contested the suit. Though they admitted the relationship they denied the redemption of the mortgage and the possession of the plaintiff.
The trial Court on adjudication of the issue partly decreed the suit holding that the plaintiff is the owner of the property subject to the unredeemed mortgage and granted injunction. Defendant No.1 challenged the said judgment in R.A. No.69/2006 before the Civil Judge Senior Division and JMFC, Malavalli. During the pendency of the appeal, defendant No.1 died and present respondents 1(a) to (d) prosecuted the said appeal.
In R.A.No.69/2006 legal representatives of defendant No.1 sought to adduce additional evidence. The First appellate Court while disposing the appeal by judgment dated 01.02.2010 rejected that application. The present respondents (a) to (d) challenged the said judgment before this Court in R.S.A.No.1063/2010. This Court admitted the appeal by framing the following substantial question of law, "whether the redemption of a mortgage could be presumed in the absence of a registered deed of redemption of mortgage and whether the suit could have been entertained 33 years after the time had lapsed to redeem the mortgage?"
A reading of the Judgment of this Court dated 12.11.2014 indicates that, this Court raised one more substantial question of law to the effect "whether there is non consideration of material evidence by the lower appellate Court?". This Court allowed the appeal holding that there is non- consideration of material evidence by the Lower Appellate Court, set aside judgment of the Lower Appellate Court and remanded the matter to the First Appellate Court.
Thereafter the plaintiff''s heirs filed the above review petition with the prayer that the judgment in RSA No.1063/2010 be set aside and the appeal be dismissed on the following grounds:
(a) The First appellate Court had dismissed the application adducing the additional evidence on the ground that there is no foundation for the same in the pleading of the defendants. Therefore, the said findings do not warrant a reversal.
(b) The judgment in RSA No.1063/2010 is against the principles laid down by the Apex Court in the case of Kshitish Chandra Purkait -vs- Santhosh Kumar Purkait & others (1997 (5) SCC 438)
(c) The application for additional evidence was filed after inordinate delay of 15 years.
(d) The judgment in question exposes the plaintiffs legal representatives to the hardship of the ordeal of re-trial before the first appellate forum.
Though the notice of the petition is served, the respondents have not appeared. Heard the learned counsel for the petitioners.
Reiterating the grounds made out in the petition, the learned counsel for the petitioner argued that on the additional substantial question of law, he was not heard. He further argued that there are no grounds to accept the additional evidence, therefore, the judgment of this Court sought to be reviewed are not sustainable. In support of his argument he relied upon the following judgments:
A Andisamy Chettiar -Vs- A subburaj Chettiar, AIR 2016 S.C 79
P. Purushotham Reddy & Another -vs- M/s Pratap Steels Ltd., AIR 2002 SC 771
Kshitish Chandra Purkait -vs- Santhosh Kumar Purkait & another (1997) 5 Supreme Court cases 438.
In view of the above facts and
circumstances the point that arises for
consideration is:
" Whether the judgment dated 12.11.2014 in RSA No.1063/2010 needs to be reviewed"
The review of the order or judgment is governed by order 47 Rule 1 CPC. In the guise of the review petition, the unsuccessful party cannot move the same court to exercise the powers of the Higher Appellate Court. The review can be sought only on the following grounds:
(i)Where an appeal is allowed, against such decree or order no appeal is preferred;
(ii) Where no appeal is allowed by such decree or judgment
(iii) If there is discovery of new and important matter or evidence which, despite exercise of due diligence, was not within the knowledge or could not be produced by him at the time when the decree was passed or order made.
(iv) If there is some mistake or error apparent on the face of the record or
(v) for any other sufficient reasons.
In the petition there is no statement whether any appeal is preferred against the judgment sought be reviewed. Secondly, it is not the case of the petitioner that there is discovery of any new fact. It is not even the case of the petitioners that there is any error apparent on the face of the record. In the petition it is not even stated that the petitioners were not heard on the additional substantial question of law framed by the court. Only during the course of the arguments it was contented that no opportunity was given to them on the said substantial question of law.
The original records R.S.A.No.1063/2010 are secured. The perusal of the said records shows that the appeal was heard and the judgment was dictated and pronounced in the Court on the same day. The records of RSA show that on 16.12.2014 the respondent''s counsel filed application for correction of the judgment and that was disposed of vide order dated 17.12.2014. Even the consequential corrections were made in the judgment on 17.12.2014. Therefore it goes difficult to accept the contention that they were not heard on the additional substantial question of law framed during hearing.
In the judgment of Kshitish Chandra Purkait''s case referred to supra, it was held that the Court shall formulate the substantial question of law in the second appeal and put the opposite party on notice and give fair and proper opportunity to meet the point. It is held that in the absence thereof, hearing of the second appeal would be illegal. But as stated above the records in the case indicate that matter was heard in the presence of the counsel for the parties and disposed of. There is nothing to indicate that review petitioners counsel sought time to reply the additional substantial questions of law raised.
As contended by the learned counsel for the petitioners, if at all opportunity was not given to them on additional substantial question of law, they could have moved for review of the order immediately before the same bench. The petition is filed with a delay of 75 days and not moved before the same bench. In the review petition no such ground is made out and not even the affidavit of the petitioners or their counsel is filed in that regard. Whatever is stated in the petition is about the merits of the order that is virtually in the nature of a further appeal.
In A Andisamy Chettiar''s case referred to supra the Appellate Court had allowed the additional evidence referring the disputed documents for scientific investigation i.e., hand writing experts opinion. The said order was taken in civil revision petition before High Court. When the appeal was still pending before the First Appellate Court, the High Court allowed the Civil Revision petition. But in the case on hand, raising the substantial question of law, the second appeal is heard and the order is passed. Therefore, the said judgment is not applicable
In P. Purushotham Reddy''s case referred to supra, it was held that though there was no plea of exclusion of any oral or documentary evidence by the trial Court the matter was remanded. Therefore, it was held that such remand is not proper. But in this case the judgment sought to be reviewed indicates that the appellants contended that the evidence sought to be adduced by them was rejected though was relevant. Therefore, the said judgment is not applicable to the facts of the case.
The explanation to Order 47 Rule 1 CPC says that the decision of question of law on which judgment of Court is based has been reversed or modified by the subsequent decision of a superior Court is not a ground for review of such judgment.
The petition does not even fit into any sufficient "clause" because the petitioners have not made out any such grounds. The only other sufficient cause they have pleaded is that the remand order has exposed them to the ordeal of retrial before the first appellate forum. Since the petitioners have the liberty to rebut the evidence to be adduced before the First Appellate Court, they are not subjected to any prejudice. Therefore, looked at from any angle, there is no merit in the review petition.
Hence, Review Petition dismissed. No order as to costs.