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2020 DIGILAW 5 (KAR)

Lingashetty v. Sugamma And Others

2020-01-02

H.B.PRABHAKARA SASTRY

body2020
JUDGMENT 1. This petition has been filed by the appellant in RSA No.7181/2011 seeking review of the judgment dated 12.12.2011 passed by this court in RSA No.7181/2011 passed in the said appeal. Under the said judgment, this Court had dismissed the regular second appeal filed by the present petitioner observing that there was no substantial question of law involved in the appeal. 2. The appellant has filed I.A.No.1/2015 without mentioning any provision of law, however seeking permission to produce additional documents. 3. Despite service of notice, the respondents have remained absent. 4. Heard the submissions made by the learned counsel for the petitioner, who in his submission stated that both the Courts below have committed an error in holding that the suit was barred by limitation and also they ignored the fact that even in appeal also the Court Commissioner could have been appointed. In his support, he relied upon the judgment of our Honble Apex Court in the case of Ravish and another v. Smt. R. Bharathi reported in 2017 AIAR (Civil) 371 . 5. Admittedly, it is the plaintiffs appeal who had instituted a suit in O.S.No.139/2002 before the competent trial Court for the relief of declaration, injunction and rectification of alleged sale deed seeking rectification with respect to description of the boundary of an open space area measuring 90 feet x 150 feet. Both the courts below had dismissed the suit and the first appeal of the present petitioner respectively in their judgments. Challenging the same, the plaintiff had preferred a second appeal in RSA No.7181/2011 before this Court, which also came to be dismissed by this Court by its judgment dated 12.12.2011 observing that there exists no substantial question of law in the appeal. 6. Learned counsel for the petitioner submitted that the alleged discrepancy in the description of the boundary of the suit schedule property came to his notice only after institution of the suit in the year 1985. However, the said suit came to be withdrawn in the year 2002 with a liberty to file afresh. As such, the trial Court has committed an error in holding that the suit was barred by limitation. He further submitted that the act of the Courts below in rejecting his application for appointment of Court Commissioner is also bad in the eye of law in view of the judgment relied upon by him, as observed above. 7. As such, the trial Court has committed an error in holding that the suit was barred by limitation. He further submitted that the act of the Courts below in rejecting his application for appointment of Court Commissioner is also bad in the eye of law in view of the judgment relied upon by him, as observed above. 7. The present petition is a review petition under Order 47 Rule 1 of Civil Procedure Code seeking review of the judgment of this Court dated 12.12.2011 passed in RSA No.7181/2011 wherein the appeal of the petitioner came to be dismissed. In that view of the matter, when a review petition is filed the scope of the review petition is very limited and the petitioner is required to show the error apparent on the face of the record, if any, which warrants review of the same. Whereas, the point that is canvassed both in the petition, as well in the argument of the learned counsel for the petitioner do not show any error on the face of the record which goes purely on the alleged merits of the case and also findings of the Courts below as well rejection of his application seeking appointment of Court Commissioner. The said aspect being not an error apparent on the face of the record or discovery of an evidence which was not in existence and not available despite his due diligence at the relevant point of time, the said point of argument and the ground raised in the review petition cannot be a sustainable ground warranting a review of the judgment dated 12.12.2011 passed by this Court in RSA No.7181/2011. 8. With respect to production of the additional documents is concerned, admittedly no provision of law is mentioned in the application. Despite the same, a perusal of the said document would go to show that it does not depict the correct date when it came into existence. Further, there is nothing on the record to show that the said document was not able to be secured despite due diligence of the applicant during the pendency of the original suit or the appeals. Further, there is nothing on the record to show that the said document was not able to be secured despite due diligence of the applicant during the pendency of the original suit or the appeals. Despite the same, even after assuming that the said document might have come into existence subsequent to the dismissal of the suit, still nothing is placed before the Court to show that the same has got any bearing on the matter which demonstrates that the judgment passed in RSA No.7181/2011 suffers from certain laches warranting review of the same. In that background, I do not find any reason either to allow I.A.No.1/2015 or entertain this review petition. As such, the question of appointment of Commissioner does not warrant a re-consideration in the review petition. Therefore, the judgment relied upon by the learned counsel for the petitioner reported in 2017 AIAR (Civil) 371 would not enure to the benefit of the petitioner at this stage. Thus, I am of the view that there are no grounds to attract review of the impugned judgment. Accordingly, the petition stands dismissed.