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2017 DIGILAW 173 (KAR)

MAHADEVA S/O LATE MARIDEVAIAH v. DEVAIAH SINCE DECEASED BY HIS L. RS.

2017-01-31

A.N.VENUGOPALA GOWDA

body2017
ORDER : 1. O.S. No. 79/1993 filed against the petitioners by the respondents, on the file of Civil Judge (Jr. Dn.) at Malavalli, to pass decree of partition and separate possession having been contested, after raising of issues and conducting trial, was decreed on 16.04.1999. Assailing the said decree, an appeal was filed. There being inordinate delay, I.A. was filed seeking condonation and the case was registered as URRA No. 2/2016 on the file of Civil Judge (Sr. Dn.), Maddur. 2. The appeal having been dismissed on the ground of un-condonable delay by a Judgment dated 06.09.2010, RSA No. 2750/2011 was filed. The said appeal, upon consideration was rejected by a Judgment dated 02.03.2016. It was found that there was delay of 375 days in filing RSA No. 2750/2011. Without going into the question of delay, finding no substantial question of law arising for consideration, the appeal was rejected. To review the said Judgment, this petition was filed. 3. Learned advocate for the petitioners submitted that the petitioners’ case in RSA No. 2750/2011 could not be put forth effectively on 02.03.2016. He submitted that the petitioners-appellants have a substantial ground to urge and hence, an opportunity be granted by reviewing the Judgment passed on 02.03.2016 in RSA No. 2750/2011. 4. Perused the petition and considered the submissions. 5. A review is by no means an appeal in disguise whereby the case is reheard and decided afresh. Review lies only for a patent error. A repetition of the argument which was not accepted is not enough to reopen the case as review jurisdiction cannot be equated with the original hearing of the case. Re-appreciation of the case is not permissible in the review jurisdiction. 6. Learned advocate for the petitioners did not point out any mistake or error apparent on the face of the record nor made out a ground to review the order by showing sufficient cause i.e. on discovery of new and important matter or evidence, which, even after the exercise of due diligence was not within the knowledge of the petitioners and could not be produced by them. 7. 7. In Satyanarayan Laxminarayan Hegde and Others vs. Mallikarjun Bhavanappa Tirumale, AIR 1960 SC 137 , to appreciate what constitutes an error apparent on the face of the record, Apex Court has held as follows: “An error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Where an alleged error is far from self-evident and if it can be established, it has to be established, by lengthy and complicated arguments, such an error cannot be cured by a writ of certiorari according to the rule governing the powers of the superior court to issue such a writ.” 8. In M/s. Thungabhadra Industries Ltd. vs. The Government of Andhra Pradesh Represented by the Deputy Commissioner of Commercial Taxes, Anantapura, AIR 1964 SC 1372 , while dealing with the concept of review, Apex Court has held as follows: “11. ……..A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error. We do not consider that this furnishes a suitable occasion for dealing with this difference exhaustively or in any great detail, but it would suffice for us to say that where without any elaborate argument one could point to the error and say here is a substantial point of law which stares one in the face, and there could reasonably be no two opinions entertained about it, a clear case of error apparent on the face of the record would be made out.” 9. In M/s. Northern India Caterers (India) Ltd. vs. Lt. Governor of Delhi, (1980) 2 SCC 167 , with regard to jurisdiction of review, Apex Court has held as follows: “8……..it is beyond dispute that a review proceeding cannot be equated with the original hearing of the case, and the finality of the judgment delivered by the Court will not be reconsidered except “where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility.” 10. In the present case, after noticing the record, hearing the arguments and finding no substantial question of law arising for consideration, second appeal being not entertainable in the absence of substantial question of law, RSA No. 2750/2011 was rejected vide Judgment dated 02.03.2016. 11. In the present case, after noticing the record, hearing the arguments and finding no substantial question of law arising for consideration, second appeal being not entertainable in the absence of substantial question of law, RSA No. 2750/2011 was rejected vide Judgment dated 02.03.2016. 11. As the review jurisdiction is extremely limited and there being no mistake apparent on the face of the record, the aforesaid Judgment does not call for review, as rehearing of the case on merit is not permissible in exercise of the review jurisdiction. Consequently, the petition is rejected.