Research › Search › Judgment

Karnataka High Court · body

2018 DIGILAW 1167 (KAR)

A Basker S/o Madhoji Rao v. Yogini, Dead by Her Lrs.

2018-12-05

B.VEERAPPA

body2018
ORDER : The present review petition is filed seeking review of the order dated 09.01.2018 passed in W.P.No.622/2018 by this Court, mainly on the ground that the judgment relied upon by the Appellate Court and this Court in the case of B.Krishnappa vs. Smt. Chandrika reported in 2007 (1) KLJ 468 is not applicable to the facts of the present case, since the very suit filed by the plaintiff for simplicitor for ejectment of the occupancy or revocation of license and therefore the small causes Court has no jurisdiction to grant the relief sought for. 2. This Court considering the arguments advanced by Sri G.H. Ravikumar, learned counsel for the petitioner, has recorded a finding that, it is not in dispute that the plaintiff filed the suit for ejectment directing the defendant to deliver and hand over the vacant possession of the schedule premises to the plaintiff within the time prescribed. According to the plaintiff, the relief claimed is valued on the basis of 12 months license fee at the rate of Rs. 1,000/- per month (i.e., Rs. 1,000/- x 12 = Rs. 12,000/- ) and past mesne profits for the months of November and December 2017 at the rate of Rs. 1,000/- per month ( i.e., Rs. 1,000/- x 2 =Rs. 2,000/- ) and Rs. 550/- towards cost of notice, in total Rs. 14,550/. Accordingly, the Court fee was paid on the said amount. It is specifically stated in the plaint that the plaintiff is the owner of the property in question and the defendant had requested the plaintiff to permit him to occupy the schedule premises for a temporary period and accordingly, the plaintiff allowed him to occupy the schedule premises as a licensee or permissive occupier, free of rent or license fee on humanitarian grounds. 3. The same is disputed by the defendant and filed the written statement stating that he has constructed the plaint schedule premises in the year 1988 in the property measuring 3 cents in Sy.No.79 of Bajal village and he is the absolute owner of the said premises and he has perfected his right, title and interest in respect of the land by way of adverse possession. Except stating so, the defendant has not filed any counter-claim. The pleadings of the plaint clearly indicate that suit filed for eviction and the defendant is in permissive occupation. Except stating so, the defendant has not filed any counter-claim. The pleadings of the plaint clearly indicate that suit filed for eviction and the defendant is in permissive occupation. The court fee has to be paid on the basis of the plaint averments and the prayer sought in the plaint, but not on the basis of the averment made in the written statement. The lower appellate Court, considering the entire material on record, recorded a finding that the suit filed by the plaintiff before the Trial Court was maintainable and the Trial Court has not considered the fact that the suit is the simplicitor of ejectment of the occupant on revocation of license. Therefore, the Trial Court has got jurisdiction to grant the relief sought for and the matter was remanded for fresh disposal on merits. The same is in accordance with law. That is how, the writ petition came to be dismissed. 4. Except raising the ground that the lower appellate Court relied upon the wrong judgment and claim for adverse possession cannot be a ground to review the order passed by this Court in exercise of powers under Order XLVII Rule 1 of the Code of Civil Procedure. It is well settled that the first and foremost requirement for entertaining a review petition is that the order under review must suffer from error apparent on the face of the record. The jurisdiction and scope of review is not that of an appeal. An error which is not self-evident and has to be detected by a process of reasoning can hardly be said to be an error apparent on the face of the record justifying the Court to exercise its power of review. 5. The Hon’ble Supreme Court while considering the scope of the review under Order XLVII Rule 1 of Code of Civil Procedure in the case of Kamlesh Verma Vs. Mayawati & Others reported in AIR 2013 SC 3301 has held at paras 15 and 16 as under: “15. Review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order XLVII Rule 1 of CPC. In review jurisdiction, mere disagreement with the view of the judgment cannot be the ground for invoking the same. Review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order XLVII Rule 1 of CPC. In review jurisdiction, mere disagreement with the view of the judgment cannot be the ground for invoking the same. As long as the point is already dealt with and answered, the parties are not entitled to challenge the impugned judgment in the guise that an alternative view is possible under the review jurisdiction. Summary of the Principles: 16. Thus, in view of the above, the following grounds of review are maintainable as stipulated by the statute: (A) When the review will be maintainable: (i) Discovery 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) Mistake or error apparent on the face of the record; (iii) Any other sufficient reason. 16.1 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 ], 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]. (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 possibility of two views on the subject cannot be a ground for review. (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. (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.” 6. In view of the aforesaid reasons, the Review Petitioner has not made out any error apparent on the face of the record and therefore, the petitioner is not entitled to any relief in exercise of powers under Order XLVII Rule 1 of the Code of Civil Procedure. Accordingly, Review Petition is dismissed. 7. In view of the dismissal of the review petition on merits, I.A.No.1/2018 for condonation of delay does not survive for consideration.