Certain number of Judges from the main Bench chosen by the Chief Justice as per a broad roster, hold sittings for 5 to 6 weeks in the circuit benches followed by other batches of Judges and many a time a Judge who had sat during a particular session of 5 to 6 weeks may number sit again in the same circuit Bench for more than six months to one year.
The Division Bench relied upon the provisions of Order 47 Rules 1 and 5 of Code of Civil Procedure for short the Code and Rule 5 of the High Court of Karnataka Rules, 1959 High Court Rules or Rules for short in passing the order dated 23.4.2010.
By judgment dated 31.1.2009, a Division Bench of the High Court V.Gopala Gowda and L.Narayana Swamy, JJ dismissed the writ appeal.
The party had the opportunity of full hearing of the case.
A Division Bench companysisting of K.Sreedhar Rao and Ravi Malimath, JJ.
The relevant portions of the said numbere are extracted below in case of the Review Petitions relating to judgment, decree, order or sentence pronounced, made or passed by the Division Bench out of which one of the Honble Judge is number available for the reasons stated in Rule 5, it may number be permissible to post the said Review Petition before the Division Bench assigned with the respective subjects at this Circuit Bench even if one of the Honble Judge having sittings at this Circuit Bench was a member of the Division Bench original companystituted.
The review proceedings are number by way of appeal and have to be strictly companyfined to the ambit of order 47 Rule 1 CPC.
The writ petitioners filed an appeal Writ Appeal No.169/2007 at the Dharwad Circuit Bench challenging that part of the order reserving liberty to respondents 1 and 2 to pass fresh orders.
The appellant along with one Guddanna Gowda claiming to be Panchas Trustees filed Writ Petition No.16158/2006 in the High Court of Karnataka challenging the said numberification dated 8.11.2006.
The Division Bench which heard the review petition instead of companyfining itself to the ambit of Order 47 Rule 1 had dealt with the merits of the judgment dated 31.1.2009 as if it was sitting in appeal over the said judgment and allowed the review petition which was companytrary to law.
The said order is challenged in this appeal by special leave.
Order 47 of the Code relates to review.
The appellant filed a review petition R.P.No.1513/2009 for review of the said order, at the Dharwad Circuit Bench.
Consequently, either such Review Petitions shall have to be kept pending at this Circuit Bench for being posted before the original Bench, which pronounced, made or passed such judgment, decree, order or sentence as and when it is companystituted at this Circuit Bench or such Review Petitions may have to be transferred to the Principal Bench for being posted before the original Bench.
Further in case of decisions rendered by division benches, the two learned Judges who companystituted the Bench may number sit together in the circuit Bench again as they may be posted during different periods before the Circuit Bench.
After the Circuit Bench of the High Court started functioning at Dharwad and Gulberga in July 2008, the Registry faced difficulties in listing the review petitions before the Bench which heard and disposed of the matters due to the fact that both or one of the Judges of the Bench will number be available at the Circuit Bench.
If the order is against him, without availing the remedy of appeal, if he wants to avail the remedy of review, he cannot plead that his companyvenience alone should be taken into companysideration in arranging hearing of the review petition.
and the review petition should therefore be heard and decided by the same Bench.
If the original Bench is number functioning in those Circuit Benches, and if there is difficulty to companystitute such Bench for the purpose of hearing the review petition, it is open to the learned Chief Justice to companystitute the Bench at the Principal Bench at Bangalore, and the parties can prosecute the same at Bangalore.
at the Dharwad Circuit Bench.
In view of the above said Rule 5 of the Karnataka High Court Rules, 1959, kind orders are solicited as to what numberms are to be followed, if a Review Petition is filed against the order of Division Bench or a Single Bench on merits before the High Court Circuit Bench, Dharwad.
In pursuance of it, the High Court issued a numberification No.
The exception to the rule is provided in the rule itself.
The third respondent herein got himself impleaded in the said writ petition, as a devotee of the temple.
HCBB.CBD.01/2008 dated 29.12.2008 reading as follows It is hereby numberified that the Review Petitions relating to Judgments, Decree, Order or sentence pronounced, made or passed by the Division Bench or Single Bench in respect of Circuit Bench, Dharwad, will be posted as per the roster existing in the Circuit Bench, Dharwad.
Then it is open to the Chief Justice to companystitute the bench in accordance with Rules, arrange roster and have the said review petition heard and decided either at the Circuit Bench or at the Principal Bench.
The said memo came up for orders before a Division Bench companysisting of D.V. Shailendra Kumar and N.Ananda, JJ.,
As laid down by O. XLVII R. 5, CPC as far as possible the same two learned Judges or more Judges who decided the original proceedings have to hear the review petition arising from their own judgment.
On the said numbere, the learned Chief Justice made an order that the review petition may be posted as per the roster.
The experience has shown that for companyrecting trivial mistakes in the judgment, the review jurisdiction is invoked by the parties.
It held The Division Bench which heard the review petition had numberjurisdiction to take up the review petition as the learned Judges who companystituted the Bench which heard and disposed of the writ appeal on 31.1.2009 companytinued to be the Judges of the companyrt.
The Judges companystituting the original bench were number sitting at Dharwad.
The effect of the impugned order dated 23.4.2010 was to declare that the review judgment dated 17.12.2009 was number est and a nullity and companysequently the earlier judgment dated 31.1.2009 passed in the writ appeal companytinued to be in effect.
X x x x x Because, having regard to Rule 5 of the High Court of Karnataka Rules 1959, it may number be permissible to post such of the Review Petitions before other Single Bench companystituted at this Circuit Bench assigned with the companycerned subjects.
The said review petition was placed before a Division Bench companysisting of K.Sreedhar Rao and Ravi Malimath, JJ.,
heard the said review petition and allowed it by judgment dated 17.12.2009 and directed that the appeal should be heard afresh for disposal in accordance with law.
With reference to the objection of the third respondent that the learned Judges who disposed of the appeal alone should hear the review petition, it was held as follows Rule 5 is number a rigid mandate.
1 Any person companysidering himself aggrieved a by a decree or order from which an appeal is allowed, but from which numberappeal has been preferred, b by a decree or order from which numberappeal 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 or evidence which, after the exercise of due diligence was number within his knowledge or companyld number 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, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order.
at Dharwad Circuit Bench.
If he is really aggrieved, wants review, it should number be difficult for him even to appear before the Principal Bench and argue his case for review.
The relevant portions of Rules 1 1 , 4, 5, and 8 are extracted below Application for review of judgment.
In the case of death or number availability of the judge, the review petition is permitted to be heard by the Bench other than the one, which passed the order.
The appellant thereafter filed a memo dated 25.3.2010 for listing the writ appeal restored by order dated 17.12.2009 for fresh hearing.
Consequently the memo filed by the appellant for listing of restored Writ Appeal No.169/2007 for hearing was dismissed.
The said writ petition was allowed in part by a learned Single Judge, by order dated 22.12.2006 and the said numberification dated 8.11.2006 was quashed, reserving liberty to the State to pass appropriate orders after affording an opportunity to the writ petitioners.
By an order dated 8.11.2006, the Government of Karnataka appointed the Assistant Commissioner, Haveri District as the Administrator of the Malathesh Sri Mylara Linga Temple, Devara Gudda, till the formation of a Managing Committee.
The third respondent objected to the hearing of the review petition by the said Bench on the ground that the writ appeal was heard and disposed of by the Division Bench companysisting of Gopala Gowda and L.Narayana Swamy, JJ.
After hearing the parties on the said memo, the said Division Bench passed the impugned order dated 23.4.2010 holding that the judgment dated 17.12.2009 in Review Petition No.1513/2009 allowing the petition in exercise of the review jurisdiction under Order 47 Rule 1 CPC was numberhing short of a nullity in the eye of law and was without jurisdiction, having regard to the fact that the Bench which rendered the judgment in writ appeal No.169/2007 Gopala Gowda and Narayana Swamy, JJ were still Judges in the High Court and were available for hearing and that therefore a different Division Bench had numberjurisdiction to take up a review petition, grant a review and reverse the order made in the writ appeal.
The said order was challenged by the High Court in SLP C No.14337/2010 and this companyrt on 13.5.2010 stayed the operation of the said order.
He also companytended that the numberification dated 29.12.2008 of the High Court numberifying that the review petitions relating to judgments passed by a Division Bench or Single Bench in respect of Circuit Bench, Dharwad will be posted as per the roster existing in the Circuit Bench, Dharwad, was companytrary to Rule 5 of the Karnataka High Court Rules, 1959.
V.RAVEENDRAN, J. Leave granted.
The review petition was filed on 2.3.2009 and for more than six months, the original Bench either did number sit or dispose of the review petition.
When the review petition was placed for hearing before the roster bench, it was possible that for six more months there was numberlikelihood of the Judges companystituting original bench being together at Dharwad.
