Karnataka High CourtSmt. J P Sujatha vs Corporation Bank on 1 August, 2012Author:Ashok B.HinchigeriBench:Ashok B. Hinchigeri1



       IN THE HIGH COURT OF KARNATAKA AT BANGALORE

          DATED THIS THE 1ST DAY OF AUGUST, 2012

                            BEFORE

        THE HON'BLE MR. JUSTICE ASHOK B. HINCHIGERI

                REVIEW PETITION No.127/2011
                             IN
                   R.F.A.No.167/2011 (INJ)

BETWEEN:

Smt. J.P.Sujatha,
No.14, 4th Cross,
Lakkasandra,
Bangalore - 560 030.                                ... Petitioner

                 (By Sri S.Nagaraju, Advocate)

AND:

1.   Corporation Bank,
     Shantinagar Branch,
     K.H.Road,
     Bangalore - 560 027.

2.   J Venkatesh,
     Aged About 37 years,
     S/o Late V Jayaram,
     No.35, Brindavan Paradise,
     1st Cross, Lakkasandra,
     Bangalore - 560 030.

3.   The Recovery Officer,
     Debt Recovery Tribunal,
     Hudson Circle,
     Nrupatunga Road,
     Bangalore - 560 001.                        ... Respondents

           (By Sri V.B.Ravi Shankar, Advocate for R-1,
             Sri Puttige R.Ramesh, Advocate for R-2,
                            R-3 served)
                                  2



      This review petition is filed under order 47Rule 1 of CPC,
praying for review of the order dated 24.1.2011 passed in RFA
No.167/2011(INJ), on the file of the Hon'ble High Court of
Karnataka, Bangalore.

      This review petition coming on for admission this day, the
Court made the following:

                             ORDERThe petitioner is seeking the review of the order, dated

24.1.2011 passed by this Court in RFA No.167/2011 (INJ).2.    Sri S.Nagaraju, the learned counsel for the petitioner

submits that the Trial Court has not considered all the

contentions raised by the petitioner's side; it has not even

considered the various authorities relied upon by the petitioner's

side. He submits that the re-appreciation of the evidence is

permissible in the review proceedings.      He submits that the

Courts are meant for doing justice and that the Courts should

not throw away any petition on the technicalities. He seeks to

draw support from the decision of this Court in the case of

BANGALORE          DEVELOPMENT        AUTHORITY,       BY     ITS

COMMISSIONER,           BANGALORE         AND      OTHERS       v.P.ANJANAPPA AND OTHERS reported in ILR 2003 KAR

1471. He read out the following portions from the said reported

decision:3"23.........................It cannot be denied that Justice is a
     virtue which transcends all barriers and the rules or
     procedures or technicalities of law cannot stand in the
     way of administration of Justice, Law has to bend before
     Justice.    If the Court finds that the error pointed out in
     the review petition was under a mistake and the earlier
     judgment would not have been passed but the erroneous
     assumption which in fact did not exist and its perpetration
     shall result in miscarriage of justice, nothing would
     preclude the Court from rectifying the error."3. Sri Nagaraju submits that the Trial Court's order is not

a speaking order, so is the order passed by this Court in RFA.

He submits that the fraud is played by the respondents.             He

submits that the loan was cleared way back in 1990 itself. It is

his further grievance that the respondents have suppressed the

material facts. They have been coming out with untenable and

illusory demands.4. He relied on the following authorities:(i)      AIR 1994 SC 853 - S.P.Chengalvaraya Naidu (dead)
              by L.R.s v. Jagannath(dead) by L.R.s and others.(ii)     2008 AIR SCW 424 - Union of India and another v.Ranchod and others.45. Sri Puttige R.Ramesh, the learned counsel for the

respondent No.2 submits that the reasons for dismissing the RFA

are found in paragraph No.17 of the order, which is extracted

hereinbelow:17. IfSection 33is read in conjunction withSection 18of the D.R.T Act, it becomes clear that the appellant's
      grievance, if any, cannot be agitated by way of filing a
      suit. I am also unable to consider the grievance of the
      appellant that the Trial Court has not gone into the issue
      of whether the schedule property is mortgaged or not.That is not even the subject matter of the suit. Because,
      there is no prayer for declaration that the schedule
      property is not mortgaged by the appellant to the 1st
      respondent Bank.6. Nextly, he also relied on the Apex Court's decision in

the   case     ofRAJ    KUMAR        SHIVHARE      v.   ASSISTANT

DIRECTOR,           DIRECTORATE         OF    ENFORCEMENT             AND

ANOTHERreported in AIR 2010 SC 2239 to advance the

submission that when a statute has created a forum for the

redressal of the grievance, a writ petition should not be

entertained ignoring the statutory provisions.7.     This Court has therefore directed the Debt Recovery

Appellate Tribunal to consider the petitioner's appeal challenging5the order of the Debt Recovery Tribunal independently of and

uninfluenced by the reasons given in the Trial Court's order,

dated 14.1.2011, so submits the learned counsel.8. He relies on the Apex Court's judgment in the case ofHARIDAS DAS v. SMT.USHA RANI BANIK AND OTHERSreported in AIR 2006 SC 1634. He read out paragraph Nos.13

and 17, which are as follows:"13. In order to appreciate the scope of a
        review,Section 114of the CPC has to be read, but
        this section does not even adumbrate the ambit of
        interference expected of the Court since it merely
        states that it "may make such order thereon as it
        thinks fit." The parameters are prescribed inOrder
        XLVII of the CPCand for the purposes of this lis,
        permit the defendant to press for a rehearing "on
        account of some mistake or error apparent on the
        face of the records or for any other sufficient
        reason." The former part of the rule deals with a
        situation attributable to the applicant, and the
        latter to a jural action which is manifestly incorrect
        or on which two conclusions are not possible.
        Neither of them postulate a rehearing of the
        dispute because a party had not highlighted all the
        aspects of the case or could perhaps have argued
        them    more    forcefully       and/or   cited   binding
        precedents to the Court and thereby enjoyed a
        favourable verdict. This is amply evident from the6explanation in Rule 1 of the Order XLVII which
            states that the fact that the decision on a question
            of law on which the judgment of the Court is based
            has been reversed or modified by the subsequent
            decision of a superior Court in any other case, shall
            not be a ground for the review of such judgment.
            Where the order in question is appealable the
            aggrieved party    has   adequate   and   efficacious
            remedy and the Court should exercise the power to
            review its order with the greatest circumspection.17. The judgment in Aribam's case (supra) has
            been followed in the case ofSmt. Meera Bhanja(supra). In that case, it has been reiterated than
            an error apparent on the face of the record for
            acquiring jurisdiction to review must be such an
            error which may strike one on a mere looking at
            the record and would not require any long drawn
            process of reasoning."9. Sri V.B.Ravi Shankar, the learned counsel for the

respondent No.1 adopts the submissions urged by Sri Ramesh.10.    The scope for reviewing the order is rather limited.

Unless an error apparent on the face of the record is pointed out,

the review petition is not entertainable. The Apex Court in the

case   ofSATYANARAYAN            LAXMINARAYAN         HEGDE     AND

OTHERS         v.   MALLIKARJUN           BHAVANAPPA         TIRUMALE7reported in AIR 1960 SC 137 has held that an error which has

to be established by a long drawn process of reasoning on points

where there may conceivably be two opinions, can hardly be said

to be an error apparent on the face of the record.11.In the case ofHaridas(supra), the Apex Court has

said that rehearing is not postulated in the review proceedings.

It is held therein that where the order in question is appealable,

the aggrieved party has adequate and efficacious remedy and

the Court should exercise the power to review its order with

circumspection.12. The Apex Court in the case ofS.BAGIRATHI AMMAL

v. PALANI ROMAN CATHOLIC MISSIONreported in (2009)

10 SCC 464 has held that, an error contemplated under Rule 1

ofOrder XLVII of C.P.C. for the permissibility of review must be

such which is apparent on the face of the record and not an error

which has to be fished out and searched.       In other words, it

must be an error of inadvertence. It should be something more

than a mere error and it must be the one, which must be

manifest on the face of the record. If the error is so apparent

that without further investigation or enquiry only one conclusion

can be drawn in favour of the applicant, the review will lie. Under8the guise of review, the parties are not entitled to rehearing of

the same issue.13. It is also profitable to refer to the Apex Court's

judgment in the case ofHARINAGAR SUGAR MILLS LTD. AND

ANOTHER v. STATE OF BIHAR AND OTHERSreported in

(2006) 1 SCC 509, wherein it is held that a party cannot be

permitted to re-argue the points, which had already been

rejected by the Court. The petitioner cannot be allowed to re-

agitate the points, which have already been rejected by the

Court. The review power can be exercised only if there is a

palpable or manifest error. A review is by no means an appeal

in disguise.14.      Not finding any error apparent on the face of the

record, I dismiss this petition. No order as to costs.15. Now that the main matter itself is dismissed, nothing

survives for any consideration of Misc.Cvl.6431/2011 for stay. It

is therefore dismissed as having become unnecessary.Sd/-JUDGE.MD