Ramaswamy and Others vs Jafarsab and Others

S. Sujatha, J—This review petition is filed by the plaintiff/respondent in RSA 1227/2006 seeking review of the judgment passed by this Court in RSA 1227/2006 dated 08.09.2014.

This case has a chequered history. O.S. 56/88 was filed by the plaintiff/1st respondent seeking declaration and permanent injunction in respect of the suit property i.e., originally R.S. No. 53 now re-numbered as CTS 8A/1A/1A/1A/1A, Ward No. III, Mariyan Timmasagar, Hubli. The said Sy. No. 53 was originally in the ownership of two brothers by name Mohammadsab - who is the deceased father of 1st defendant and Janisab - who is the deceased father of defendant No. 2. They were said to be tenants in common. Father of 2nd defendant filed suit for partition and separate possession in respect of the properties in R.S. No. 53, 50, 67 and other house properties and said to have obtained a decree. So far as partition of the said property was concerned, the matter was transferred to the Deputy Commissioner. Meanwhile, the father of the 2nd defendant expired leaving behind 2nd defendant as his legal heir. It was contended by the 1st defendant in the appeal proceedings that the property was in continuous and actual possession with Mohammadsab and after his death 2nd defendant was in possession of the said property. Though these properties were described as agricultural lands, they were treated as non-agricultural lands and several plots were developed. It is the case of the petitioner herein that 1st defendant has leased out the suit properties by way of permanent lease under a registered deed dated 22.09.1959 and 28.10.1959 in favour of the petitioner and is said to have been inducted in actual possession. It is assured that after coming into force of the Karnataka Village Officers Abolition Act, 1961, the entire land was regranted to its lawful holder viz., 1st defendant on 05-08-1968. In the meantime, 2nd defendant filed O.S. No. 29/63 against the 1st defendant for possession of his half share in Sy. No. 53 and other lands. A compromise decree was entered into between defendants 1 and 2. Execution No. 234/69 was instituted by the 2nd defendant against 1st defendant in pursuance of the compromise decree, sought delivery of possession of land in Sy. No. 53. Petitioner herein being the plaintiff in O.S. 265/71 filed suit for injunction against the defendants not to interfere with the peaceful possession of the suit property which was decreed, against which R.A. 183/74 was filed by the 3rd defendant and the same came to be allowed. Challenging the same, RSA 596/77 was filed by the plaintiff before this Court. In the said RSA proceedings, O.S. 265/71 was withdrawn on 29.8.1987 with liberty to file a fresh suit. In the meantime, 3rd defendant pursuant to the money decree obtained against the 2nd defendant in O.S. No. 450/1975, got attached the suit property in Ex. No. 314/1976 and purchased the same in Court auction. Accordingly, O.S. No. 56/88 was filed by the plaintiff against the defendants. The said suit was dismissed. Being aggrieved by the same, R.A. 101/2002 was preferred. The said appeal filed by the plaintiff was allowed reversing the judgment and decree of the trial Court. The said judgment and decree passed in R.A. 101/2002 was challenged in RSA 1227/2006 by the 3rd defendant before this Court and the same came to be allowed after hearing the parties by judgment dated 8.9.2014.

Heard the learned counsel for the petitioner at length and perused the documents on record.

Plaintiff/petitioner is now before this Court seeking review of this judgment on the ground that 2nd defendant had no right over the suit property and the 3rd defendant in view of money decree passed in O.S. 450/75 obtained against the 2nd defendant, wrongly got attached the suit property in Execution No. 314/76 and purchased the same in Court auction. The said purchase made by the 3rd defendant in Court auction is wholly illegal and invalid.

The next contention that is raised by the petitioner is that the identification of the property described in the suit schedule is different from that of the property purchased by the 3rd defendant in Court auction. To substantiate the same, additional documents produced before this Court in RSA proceedings was not considered and accordingly requires a re-look of the entire matter.

This review petition is filed by the petitioner under Order XLVII Rule 1 read with Sections 114 and 151 of CPC. Order XLVII Rule 1 contemplates filing of review of judgment in the following circumstances:

(a) By a decree or order from which an appeal is allowed, but from which no appeal has been preferred,

(b) By a decree or order from which no appeal is allowed, or

(c) By a decision on a reference from a Court of Small Causes.

And who, from the discovery of new and important matter of evidence which, after the exercise of due diligence was not within the knowledge of the persons seeking review or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason. None of the grounds stipulated under Order XLVII Rule 1 CPC is available in the present case to invoke the same. A mere repetition through different counsel of old and over-ruled arguments is obviously apparent. The scope of Order XLVII Rule 1 is limited. In the case of Sow Chandra Kante and Another Vs. Sheikh Habib, AIR 1975 SC 1500 : (1975) 1 SCC 674 : (1975) 3 SCR 933 : (1975) 7 UJ 324 , it is held as under:

"1. ......A review of a judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility. A mere repetition, through different counsel, of old and overruled arguments, a second trip over ineffectually covered ground or minor mistakes of inconsequential import are obviously insufficient. The very strict need for compliance with these factors is the rationale behind the insistence of counsel''s certificate which should not be a routine affair or a habitual step. It is neither fairness to the Court which decided nor awareness of the previous public time lost what with a huge backlog of dockets waiting in the queue for disposal, for counsel to issue easy certificates for entertainment of review and fight over again the same battle which has been fought and lost. The Bench and the Bar, we are sure, are jointly concerned in the conservation of judicial time for maximum use".

Further, it is observed that

"11. ....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".

The Apex Court in the case of Aribam Tuleshwar Sharma Vs. Aribam Pishak Sharma and Others, AIR 1979 SC 1047 : (1979) 4 SCC 389 : (1979) 11 UJ 300 , while considering the scope and ambit of Order XLVII Rule 1 of CPC has held that "the power of review can be exercised for correction of a mistake but not to substitute a view. The mere possibility of two views on the subject is not a ground for review".

The Apex Court in the case of Kamlesh Verma Vs. Mayawati and Others, (2013) 5 ABR 1267 : AIR 2013 SC 3301 : (2013) 4 CTC 882 : (2013) 4 RCR(Civil) 75 : (2013) 10 SCALE 113 : (2013) 8 SCC 320 : (2014) 1 SCC(L&S) 96 has extensively considered the scope of review and has laid down the principles to be followed while considering the scope and ambit of Order XLVII Rule 1 CPC which reads thus:

(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.

The words "any other sufficient reason" has been interpreted in Chhajju Ram vs. Neki and OthersAIR 1922 112 (Privy Council) and approved by the Apex Court in Moran Mar Basselios Catholicos and Another Vs. The Most Rev. Mar Poulose Athanasius and Others, AIR 1954 SC 526 : (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 (UOI) Vs. Sandur Manganese and Iron Ores Ltd. and Others, (2013) 4 ABR 1116 : (2013) 5 AD 94 : (2013) 8 JT 275 : (2013) 6 SCALE 257 : (2013) 8 SCC 337 : (2013) AIRSCW 2905

In the light of these judgments, I have analysed the facts of the present case and the grounds on which the petitioner is seeking for the review of the judgment passed by this Court.

Admittedly all these grounds were raised before the Court at the time of the arguments which were considered and overruled. The very same old and overruled arguments cannot be reheard and corrected only for the reason that a different view may be possible. The scope of review as already laid down by the Apex Court is very limited and it is not to substitute the view of the Court and it cannot be allowed to be an appeal in disguise. The appreciation of the evidence on record is fully within the domain of the appellate court which cannot be permitted to be availed in the review petition. The grounds now urged does not fall within the realm of review and it amounts to reconsideration of the matter which is not permissible.

Accordingly, review petition stands dismissed.