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IN THE HIGH COURT OF KARNATAKA
S.Sunil Dutt Yadav, Suraj Govindaraj, JJ.
Jayashree Jayanth – Appellant
Versus
N. Krishnaswamy – Respondent
Review Petition No. 540 of 2019, RFA No. 1226 of 2016
Decided On : 13-10-2023
REVIEW - CIVIL PROCEDURE - Order 39 CPC, Section 52 T.P. Act, Section 340 Cr.P.C. - The court discussed the principles of review under Order 47 of the CPC, emphasizing that a review is not an appeal and can only be granted on specific grounds such as an error apparent on the face of the record or sufficient cause. The court highlighted Section 52 of the Transfer of Property Act, which restricts the transfer of property during the pendency of a suit, ensuring that any alienation made is subject to the outcome of the appeal. The court also addressed the implications of fraud and misrepresentation, asserting that the petitioner failed to establish any deceitful conduct by the respondents that would warrant a review.
Fact of the Case:
The petitioner sought a review of a court order that modified an interim injunction, allowing the respondents to alienate properties during the pendency of an appeal. The petitioner argued that this modification was inequitable and led to potential third-party rights being created in coparcenary agricultural lands, which could result in multiplicity of proceedings.
Finding of the Court:
The court found that the petitioner did not establish sufficient grounds for review under Order 47 of the CPC. It concluded that the modification of the interim order was justified, given that the original suit had been dismissed, and that any alienation would be subject to the outcome of the appeal and Section 52 of the T.P. Act.
Issues: Whether the order dated 9/10/2019 should be reviewed based on claims of fraud and the implications of allowing property alienation during the appeal process.
Ratio Decidendi: The court reiterated that a review is limited to correcting errors apparent on the face of the record and cannot be used as a means to reargue the case. It emphasized that the principles of equity must be balanced, and that the modification of the injunction was appropriate given the dismissal of the original suit.
Final Decision: The review petition was dismissed, with the court reiterating that any alienation by the respondents would be subject to the outcome of the appeal and Section 52 of the T.P. Act, ensuring that purchasers would be bound by any judgment passed in the appeal.
JUDGMENT
SURAJ GOVINDARAJ, J.
The petitioner is before this Court seeking for the following reliefs:
b) Award cost and litigation expenses.
c) Pass such other order or directions this Hon'ble Court may deem fit in the interest of justice and equity, including remanding the matter to the lower court for trial on an expedited basis.
2. The petitioner, who is the appellant in the Regular First Appeal, is represented by her husband and GPA holder, who has appeared as a party-in-person. The petitioner is seeking a review of the order dtd. 9/10/2019 passed in IA-1/2019 in RFA No.1226/2016.
3. By way of the said order, this Court modified the interim order granted on 18/2/2019 by observing that any alienation to be made by the respondents shall be subject to the result of the appeal and subject to Sec. 52 of the Transfer of Property Act, ['T.P.Act' for short]. The review petition has been filed on the following grounds:
3.1. The proposition of law on which the impugned order dtd. 9/10/2019 is based permitting alienation of greater than one dozen of immovable properties, is unsound in law.
3.2. The application for review is justified for sufficient reasons.
3.3. It is inequitable to the petitioner for the Court to permit creation of third-party rights in admittedly coparcenary undivided agricultural lands which leads to multiplicity of proceedings.
4. Sri.Jayanth Balakrishna, party-in-person would submit that:
4.1. Order 39 of Code of Civil Procedure, 1908 ['CPC' for short] is to be considered in an equitable manner. For any variance to be made of an order of injunction already granted, the person seeking such variance has to make out a case under Order 39 Rule 4 of CPC and any such person seeking for such variance should have approached the Court with clean hands and must have done equity. These aspects not having been taken into consideration while modifying the order dtd. 18/2/2019, the same is a mistake or error apparent on the face of the record requiring review thereof.
4.2. The principles laid down by the Hon'ble Apex Court in M/s Gujarat Bottling Co. Ltd. v. Coca Cola Co., 1995 INSC 441/ 1995 SCC (5) 545. have not been considered, this Court ought to have looked into the conduct of the respondents before modifying the said order.
4.3. The application under Sec. 340(2) of Cr.P.C. having been filed, the same ought to have been taken into consideration along with the application for vacating the interim order.
4.4. Merely because the suit had been dismissed would not be a ground for modifying the interim order. Once an order of injunction had been granted, the same could only be modified in terms of Rule 4 of Order 39 of CPC by following all concomitants relating thereto. By way of modification this Court has virtually vacated the interim order vide its order dtd. 9/10/2019.
By doing so, an opportunity has been provided to the respondents to alienate the properties which opportunity has been used by the respondents as regards properties which would now necessitate multiplicity of proceedings and as such, the order dtd. 9/10/2019 modifying the interim order needs to be reviewed.
4.5. The power of review is not limited to those instances covered under Order 47 but an order could also be reviewed for sufficient cause. In the present matter, multiplicity of proceedings is a sufficient cause to review the aforesaid order. The whole purpose of granting an order of injunction in a suit filed for partition is to preserve the properties in status-quo, and if the said properties are permitted to be sold and third-party interest are created, apart from multiplicity of proceedings, the interest of the petitioner would be adversely affected.
4.6. The petitioner has not been permitted a right to exercise pre-emption rights in terms of the decision of Hon'ble Apex Court in Babu Ram - vs- Santokh Singh and others, 1963 Supp (2) SCR 585 : AI
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