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2001 DIGILAW 367 (KAR)

G. DASARATHARAM v. STATE OF KARNATAKA

2001-04-18

N.S.VEERABHADRAIAH, V.GOPALA GOWDA

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N. S. VEERABHADRAIAH, J. ( 1 ) THIS Civil Review Petition was listed before this bench for Admission in pursuance of the Administrative order passed by the Hon'ble Chief Justice in exercise of his power under Rule 5 of the Karnataka High Court Rules, 1959 (in short 'rules'. ( 2 ) WHEN the matter came up for admission before this bench, the learned counsel Sri G. S. Visweswara, on behalf of the petitioner raised the preliminary objection regarding hearing of this C. P. by this bench consisting of two Judges wherein one of the learned Judge was not the member of Judge who heard the Writ Appeal placing reliance upon the provisions of Order 47, Rule 5 of C. P. C. contending that the matter should be heard by my learned brother Judge Mr. Justice Gopala Gowda, alone for the reason that the Division Bench which has heard the matter consists of Hon'ble Justice the then Chief Justice R. P. Sethi and Mr. Justice V. Gopala Gowda, - the learned former Chief Justice has been elevated to the Hon'ble Supreme Court of India and therefore, this Civil Revision has to be heard only by the other learned Judge alone who is available for sitting. In support of his contention, he relied on the following decisions which are reported in :air 1960 Raj 12 - Sheo Prakash Singh v. State of Rajasthanair 1966 Andh Pra 173 - Veluri Seetharamasastry v. Isukapalli Sundarammaair 1970 Madh Pra 131 - Manoharlal Verma v. State of M. P. AIR 1975 Raj 55 - Bhera v. Board of Revenue air 1942 Mad 23 - Chenna Reddy : In reair 1922 PC 112 : Chhajju Ram v. Neki. ( 3 ) IN the light of the preliminary objections raised under O. 47, R. 5, and the proviso to the said rule, the point that would arise for consideration for this Court is whether the Bench constituted by the Hon'ble Chief Justice in the disposed of matter, can hear the Review Petition? ( 3 ) IN the light of the preliminary objections raised under O. 47, R. 5, and the proviso to the said rule, the point that would arise for consideration for this Court is whether the Bench constituted by the Hon'ble Chief Justice in the disposed of matter, can hear the Review Petition? ( 4 ) TO answer the above said legal question raised, it would be necessary to extract the provisions of O. 47, R. 5 of C. P. C. , which reads thus :"application for review in Court consisting of two or more Judges : Where the Judge or Judges, or any one of the Judges, who passed the decree or made the order, a review of which is applied for, continues or continue attached to the Court at the time when the application for a review is presented, and is not or are not precluded by absence or other cause for a period of six months next after the application from considering the decree or order to which the application refers, such Judge or Judges or any of them shall hear the application, and no other Judge or Judges of the Court shall hear the same. " ( 5 ) THE Writ Apepal No. 10140/96 c/w. WA No. 67/97 was disposed of on 17-4-1998 by the Division Bench constituted by Hon'ble the then Chief Justice Mr. R. P. Sethi and Hon'ble Mr. Justice V. Gopala Gowda. The appellants preferred this C. P. No. 299/98 for review of the order, 17-4-1998. From the facts narrated above, it is clear that the Writ appeals in question were heard by the Division Bench and the matter came to be disposed of by the Division Bench. The then Hon'ble Chief Justice Mr. R. P. Sethi, being elevated to the Hon'ble Supreme Court of India, his lordship is not available for sitting on the bench constituted along with the Hon'ble Mr. Justice V. Gopala Gowda. As per Rule 5 of Chapter III of the High Court of Karnataka Rules, 1959, the present bench came to be constituted by the Hon'ble Chief Justice. Rules 5 to 7 of the above said rules are extracted hereunder for consideration of the same and to answer the legal questions formulated by this Court :"5. Justice V. Gopala Gowda. As per Rule 5 of Chapter III of the High Court of Karnataka Rules, 1959, the present bench came to be constituted by the Hon'ble Chief Justice. Rules 5 to 7 of the above said rules are extracted hereunder for consideration of the same and to answer the legal questions formulated by this Court :"5. Every petition or application for review, reconsideration or correction of a judgment, decree, order or sentence shall be posted before the original bench which pronounced, made or passed such judgment, decree, order or sentence or if the Judge or any of the Judges who constituted the said Bench is not available by reason of death, retirement or absence, before any other Bench constituted in the same manner as the original Bench. 6. Benches shall be constituted and judicial work of the Court allotted or distributed to them by or in accordance with the directions of the Chief Justice. 7. When a single Judge refers a case to a Bench or when a Bench of two Judges refers any question to a Full Bench, then the papers of the particular case shall be placed before the Chief Justice for a reference to a Bench or for the constitution of a Full Bench. " ( 6 ) ORDER 47, Rule 5 of C. P. C. has to be read along with Rule 5 of the High Court of Karnataka Rules referred to supra which empowers the Hon'ble Chief Justice of this Court to constitute an appropriate Bench to hear the Review Petition where one of the Judge is not available to constitute the Bench. ( 7 ) THE Supreme Court, while considering the scope and ambit of O. 47, R. 5, C. P. C. in the case of State of Rajasthan v. Gopal Singh, reported in 1994 Suppl (2) SCC 404 has clearly held that according to the Rules of Rajasthan High Court of 1952, the matter has to be placed before the Chief Justice, in turn, he has to constitute a bench for hearing and disposal of such applications. In the said case after considering the provisions of C. P. C. and Rules, the Apex Court has held that the matter would go before the Division Bench. In the said case after considering the provisions of C. P. C. and Rules, the Apex Court has held that the matter would go before the Division Bench. In the case on hand also, according to the Rule 5 of the Karnataka High Court Rules, if any one of the Judges of the Bench which has heard the Writ Appeal is not available to constitute Bench and to consider such application for review, it is the Hon'ble Chief Justice who is competent to constitute a Bench under the Rules referred to above. Likewise, the present bench came to be constituted. ( 8 ) IN the light of the Judgment of the Supreme Court, the various decisions of various High Courts in the country, relied upon by the learned counsel Sri G. S. Vishweswara which are referred to above at paragraph 2 of this order is of no avail. Therefore, the bench constituted by the Hon'ble Chief Justice to hear the C. P. is in accordance with law. Therefore, the submissions of the learned counsel that the matter has to be heard only by the learned Judge alone who had already heard the matter is without any merit as the same is contrary to the Rules, provisions of O. 47, R. 5 and the Judgment of the Apex Court referred to supra. In fact the reliance placed upon the Division Bench, Judgment of Madhya Pradesh High Court reported in AIR 1970 Madh Pra 131 does not support the proposition of law as sought to be established by the learned counsel for the petitioner, but on the other hand it supports the view which we have taken in this case. The other High Court Judgments upon which reliance placed on facts with reference to the Rules of this Court are entirely different and therefore the aforesaid Judgments have no application to the present facts and Rules and therefore, they are misplaced and do not render any assistance to the petitioner. ( 9 ) ACCORDINGLY, all the decisions which are relied upon by the learned counsel are of no assistance to the case of the petitioner in view of the law laid down by the Hon'ble Supreme Court in the Judgment cited supra. Accordingly, the preliminary objections raised by the learned counsel for the petitioner is overruled. Therefore, the office is directed to list this matter for admission. --- *** --- .