M. G. Shanthkumar Since Dead Represented By His Lrs. v. N. Jayaram, Son Of Late S. Nagappa
2022-09-05
B.M.SHYAM PRASAD, E.S.INDIRESH
body2022
DigiLaw.ai
ORDER : This Court in partly allowing the petitioners' appeal in RFA No.604/2005 by the Judgment dated 07.09.2021 has set aside the Judgment and decree dated 11.01.2005 in OS No. 3992/2001 on the file of the VIII Additional City Civil Judge, Bengaluru [for short, ‘the civil Court’] and has remanded the suit for fresh disposal with certain observations. This Court has called upon the civil Court to decide the suit expeditiously and in any event within the outer limit of nine [9] months from the date of receipt of a certified copy of the Judgment dated 07.09.2021. The present petition is filed for review of this judgment dated 07.09.2021. 2. Sri. R.V.S. Naik, the learned Senior Counsel for the petitioners, submits that this Court must review the Judgment dated 07.09.2021 because of certain obvious and indisputable typographical errors in mentioning the details of certain proceedings, the subject sale deeds and dates, and because this Court’s opinion that the suit must be remitted for retrial under Order XLI Rule 23A of the Code of Civil Procedure, 1908 [for short, 'the CPC'] is without considering the law exposited by the Hon’ble Supreme Court in Uttaradi Mutt v. Raghavendra Swamy Mutt : (2018) 10 Supreme Court Cases 484. Sri. R.V.S. Naik elaborates his submissions on these two grounds thus: On the typographical errors in the judgment dated 07.09.2021: 2.1 Sri M.G. Shantha Kumar, the plaintiff in O.S. No.2791/2001, has impugned eight sale deeds that were obtained in the year 1999 from him under duress. The petitioners' specific case is that he was abducted at the instance of the second respondent and the sale deeds obtained under duress. Though the sale deeds are allegedly signed on 25.02.1999, they are presented for registration with the concerned Sub-Registrar only on 21.04.1999. It can even otherwise be demonstrated that the sale deeds are void. The suit in OS No. 2791/2001 is dismissed but with this judgment being called in question in RFA No.472/2014, the appeal is allowed by this Court’s judgment dated 25.03.2015 cancelling the aforesaid eight sale deeds. This Court’s judgment in RFA No. 472/2014 is confirmed with the dismissal of the SLP in SLP No.213/2017 by the Hon’ble Supreme Court on 11.02.2017. 2.2 Sri M.G. Shantha Kumar was also abducted earlier in the year 1997 and certain documents obtained.
This Court’s judgment in RFA No. 472/2014 is confirmed with the dismissal of the SLP in SLP No.213/2017 by the Hon’ble Supreme Court on 11.02.2017. 2.2 Sri M.G. Shantha Kumar was also abducted earlier in the year 1997 and certain documents obtained. These documents are impugned by him in the present suit in OS No. 3992/2001, which is decided by the impugned Judgment and decree dated 11.01.2005. There are earlier proceedings in OS No. 4279/1989 and a clutch of other proceedings, but there are no proceedings as regards the subject property in OS No. 472/2014. The civil Court could not have had the benefit of the judgment of this Court in RFA No. 472/2014 when it delivered its judgment dated 11.01.2005, but this Court has observed that the civil Court should have taken note of the judgment in the said appeal. Apart from this error, there are following errors: a] In paragraph-11 of the Judgment, OS No. 427/1989 is mentioned, but it should be OS No. 4279/1989; b] In paragraph 24.2 of the judgment, there is reference to Exhibit P12, a report by the Registrar [Vigilance]. This Report is in respect of the documents filed in WP No.37551/1997 and not in respect of the sale deed. However this Court has recorded that this Report relates to the sale deed dated 29.07.1970; c] In paragraph 25.5, the date of the impugned judgment is mentioned as 30.09.1995 but it must be 11.01.2005. Similarly, the numbers of the suit in OS No. 2791/2001 and RFA No. 472/2014 are also wrongly mentioned in this paragraph. On this Court remanding the suit for fresh disposal under Order XLI Rule 23A of CPC : 2.3 The petitioners have filed certified copies of the pleadings in OS No. 2791/2001 and a certified copy of the judgment in RFA No. 472/2014 along with an application under XLI Rule 27 of CPC with leave to produce these documents as additional evidence. The respondents did not object, and as such on 22.01.2020, this Court has allowed the application taking these documents on record and marking them as Exhibits P27-P33. This Court has recorded that the learned counsel for the first respondent did not have any objection for allowing the application.
The respondents did not object, and as such on 22.01.2020, this Court has allowed the application taking these documents on record and marking them as Exhibits P27-P33. This Court has recorded that the learned counsel for the first respondent did not have any objection for allowing the application. 2.4 This Court has opined that evidentiary value of these documents has to be appreciated, scrutinized and a finding recorded on the basis of oral evidence that the parties may tender with regard to these Exhibits and therefore, the suit requires to be remanded. However, the decision of the Hon’ble Supreme Court in Uttaradi Mutt v. Raghavendra Swamy Mutt [supra] is that the appellate courts must not exercise jurisdiction under the provisions of Order XLI Rule 23A of CPC without considering having recourse to the provisions of Order XLI Rule 25 of CPC. Therefore, this Court, in terms of the provisions of Order XLI Rule 25 of CPC, should have framed material question and referred the same to the civil Court to take additional evidence in the light of Exhibits P27-P33 and return such additional evidence with its finding and reasoning on such question. This Court’s failure to consider this recourse is an undeniable error apparent on the face of the record and hence, this Court must review the judgment dated 07.09.2021. 2.5 The Hon’ble Supreme Court back in the year 1964 in its celebrated decision in Tungabhadra Industries Ltd v. Government of AP, AIR 1964 SC 1372 has exposited that where there is a decision of the Hon’ble Supreme Court bearing on a point and the Court has taken a view which is not consistent with such decision, that clearly would be an error apparent on the record. As such, the grounds for review are established. 3. Sri. Ashok Haranahalli, the learned Senior Counsel for the respondents, submits that the respondents would not contest the typographical errors that have been pointed out. This Court could correct such typographical errors in exercise of the jurisdiction under section 152 of CPC, but such errors cannot be a reason for review of the judgment dated 07.09.2021. Therefore, though this Court may correct the typographical errors pointed out by the other side, this Court cannot review the judgment dated 07.09.2021 because of such errors. 3.1 Sri.
This Court could correct such typographical errors in exercise of the jurisdiction under section 152 of CPC, but such errors cannot be a reason for review of the judgment dated 07.09.2021. Therefore, though this Court may correct the typographical errors pointed out by the other side, this Court cannot review the judgment dated 07.09.2021 because of such errors. 3.1 Sri. Ashok Haranahalli next submits that this Court has also interfered with the impugned judgment dated 11.01.2005 because of the categorical finding that the civil Court has erroneously dismissed the suit without proper consideration of evidence and without considering circumstances such as the commencement of several suits. This Court’s opinion that the controversy must be revisited in the light of the additional evidence permitted in the appeal after due opportunity to the parties to lead oral evidence is another circumstance which has prevailed. The canvass that this Court has not considered the efficacy of having recourse to the provisions of Order XLI Rule 25 of CPC would be factually incorrect inasmuch the petitioners cannot deny that this Court has referred to its earlier decision in Bellur Usha Shivaprasad and others v. Smt. Saramba Anantha Swamy and others, In RFA No. 1522/2013 which is decided on 02.06.2020. In this regard this Court’s attention is drawn to paragraph 25 of the judgment dated 07.09.2021. 4. It is obvious from the rival submissions that the typographical errors pointed out on behalf of the petitioners are not disputed, and Sri. R.V.S. Naik does not contest Sri. Ashok Haranahalli’s submissions that the errors could be corrected in exercise of the jurisdiction under Section 152 of CPC. Therefore, the question for consideration is: Whether this Court must review the judgment dated 07.09.2021 because the suit is restored for fresh consideration under Order XLI Rule 23A of CPC despite the Hon’ble Supreme Court’s judgment in Uttaradi Mutt v. Raghavendra Swamy Mutt [supra]. 4.1 The decision in Uttaradi Mutt v. Raghavendra Swamy Mutt (supra) is an authority for the proposition that if the provisions of Order XLI Rule 23 of CPC contemplate remand when a suit is disposed of by a decision on a preliminary point which is reversed in appeal, the provisions of Order XLI Rule 23A of CPC contemplate remand in all other residuary category of cases where the suits are not disposed of by a decision on a preliminary point.
The continuation of this proposition is also that while exercising such jurisdiction, the appellate Courts are duty bound to keep in mind the provisions of Order XLI Rules 25 and 26 of CPC. 4.2 Sri. Ashok Haranahalli is right in his submissions that this Court, in referring to its decision in Bellur Usha Shivaprasad and others v. Smt. Saramba Anantha Swamy and others, has decided on remand under Order XLI Rule 23A of CPC instead of having recourse to the provisions of Order XLI Rule 25 of CPC. It cannot be gainsaid that this Court in referring to its aforesaid earlier decision, where there is reference to the provisions of Order XLI Rule 23, 23A, 25 of CPC, has found it just and proper to remand the suit for fresh consideration. This Court, given the limited jurisdiction under Order XLVII Rule 1 of CPC, cannot revisit the merits of such finding. It would be useful to refer to the decision of the Hon’ble Supreme Court in Sri. Ram Sahu [Dead] through Lrs v. Vinod Kumar Rawat and others, 2020 SCC Online SC 896 wherein it is reiterated that a review is not an appeal in disguise and a review Court does not sit in appeal over its own orders. 4.3 This Court for the foregoing must answer the question for consideration in the negative and conclude that this Court cannot review the judgment dated 07.09.2021 in RFA No. 604/2005 on the ground that the same is despite the decision in Uttaradi Mutt v. Raghavendra Swamy Mutt [supra]. However, the judgment dated 07.09.2021, in the light of the undisputed typographical errors, must be read subject to the following corrections: [i] In paragraph 11 of the judgment, the reference to OS No. 427/1989 must be read as OS No. 4279/1989; [ii] In paragraph 24.2 of the judgment, the reference to Exhibit P12, a report by the Registrar [Vigilance], must be read as related to the proceedings in WP No.37551/1997; [iii] In paragraph 25.5 of the judgment, the date of the impugned judgment mentioned therein must be read as 11.01.2005 and the reference to the corresponding proceedings must be to OS No. 2791/2001 and RFA No. 472/2014. The petition stands disposed of accordingly.
The petition stands disposed of accordingly. ORDER After pronouncement of orders, Sri R.V.S. Naik, the learned Senior Counsel for the petitioners, submits that the petitioners must have liberty to explore the possibility of calling in question this judgement dated 07.09.2021 in RFA No.604/2005 and this Court, while extending time for the civil Court to decide the suit in terms of the judgment dated 07.09.2021, could consider this request granting some reasonable time. He also submits that the time granted by this Court at the first instance has expired, but there is no progress in the suit. On a careful consideration of these submissions, this Court is of the considered view that there must be 9 (nine) months time for the civil Court from today to dispose of the suit in terms of the judgment dated 07.09.2021. The Registry is directed to return forthwith the certified copy of the judgment dated 07.09.2021 in RFA No.604/2005 to the learned Counsel for the petitioners, subject to its substitution with a true copy.