Karnataka High Court
Dr. Divya J vs Sri B N Govindaiah on 18 March, 2026
Author: H.P.Sandesh
Bench: H.P.Sandesh
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF MARCH, 2026
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
REVIEW PETITION NO.365 OF 2025
IN
R.S.A. NO.1428/2024 (RES)
BETWEEN:
1. DR. DIVYA J.,
AGED ABOUT 48 YEARS,
D/O LATE G.L. JAYPAL,
RESIDING AT HOLENARSIPURA ROAD,
OPPOSITE FILTER HOUSE,
CHANNARAYAPATNA
HASSANA DISTRICT-573116.
...PETITIONER
(BY SRI. G.L. VISHWANATH, SENIOR COUNSEL FOR
MS. MAHESHWARI D.M., ADVOCATE)
VINAYAKA AND:
BV
Digitally signed 1. SRI. B.N.GOVINDAIAH,
by VINAYAKA B V
Date: 2026.03.24
AGED MAJOR,
14:33:57 +0530 S/O LATE NANJAIAH,
GADDE BINDENAHALLI VILLAGE,
KASABA HOBLI,
CHANNARAYAPATNA TALUK,
HASSAN-573116.
2. SMT. JAYALAKSHMAMMA,
AGED MAJOR
W/O B.N.GOVINDAIAH,
GADDE BINDENAHALLI VILLAGE,
KASABA HOBLI,
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CHANNARAYAPATNA TALUK,
HASSAN-573116.
3. SRI. B.G.HARIPRASAD,
AGED MAJOR,
S/O LATE NANJAIAH,
GADDE BINDENAHALLI VILLAGE,
KASABA HOBLI,
CHANNARAYAPATNA TALUK,
HASSAN-573116.
...RESPONDENTS
(BY SRI. RAJASHEKAR S., ADVOCATE FOR R1 TO R3)
THIS REVIEW PETITION IS FILED UNDER ORDER 47 RULE
1 R/W SECTION 114 OF CPC, PRAYING TO REVIEW THE ORDER
DATED 26.06.2025 PASSED BY THIS HON'BLE COURT IN RSA
NO.1428/2024 (ANNEXURE-A) IN THE INTEREST OF JUSTICE
AND EQUITY AND GOOD CONSCIENCE.
THIS PETITION COMING ON FOR ADMISSION THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
ORAL ORDER
Heard the learned counsel for the review petitioner and
also the learned counsel for the respondents.
2. The present review petition is filed praying this
Court to review the order dated 26.06.2025 passed in
R.S.A.No.1428/2024 and to grant such other relief as deemed
fit in the circumstances of the case.
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3. The grounds which have been urged in this review
petition is that the impugned order has proceeded on the sole
basis that the petitioner was given sufficient opportunity,
without adverting to the fact that the petitioner had selected
advocates, briefed them and paid their fees, while trusting
them to defend her case. However, they completely failed to
do so, and thereby a decree was passed against the petitioner.
For no fault of the review petitioner, the petitioner as an
innocent party, is suffering the consequence of her advocate’s
default. It is also contended that this Hon’ble Court has time
and again held that an innocent party should not suffer merely
because of his advocate’s default. The learned counsel also
brought to the notice of this Court the judgment of the Hon’ble
Apex Court in the case of RAFIQ v. MUNSHILAL reported in
(1981) 2 SCC 788 and would vehemently contend that the
Trial Judge while passing the judgment made a reference that
no written statement was filed. But the fact is that an
application was filed advancing the case when the case was set
down for judgment and the same was rejected and hence,
making an observation that no written statement is filed is
erroneous. The learned counsel also vehemently contend that
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even if the defendant did not contest the matter, the Court has
to take note of other material available on record while
granting the relief. The learned counsel also vehemently
contend that the review petitioner came to know about an
order passed by the Deputy Commissioner, wherein comes to
the conclusion that the very grant made in favour of the
plaintiff itself is not in the eye of law and the same is not
sustainable and the same came to the knowledge of this review
petitioner subsequent to the disposal of this RSA. Hence, this
Court has to review the order passed by this Court.
4. The learned counsel for the review petitioner in
support of his arguments, relied upon the judgment of the
Hon’ble Apex Court in the case of BALRAJ TANEJA AND
ANOTHER v. SUNIL MADAN AND ANOTHER reported in
(1999) 8 SCC 396 and brought to the notice of this Court
paragraph No.25. The learned counsel also relied upon the
judgment of the Hon’ble Apex Court in the case of UNION OF
INDIA AND OTHERS v. VASAVI COOPERATIVE HOUSING
SOCIETY LIMITED AND OTHERS reported in (2014) 2 SCC
269 and also the judgment of the Hon’ble Apex Court in the
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case of C.N. RAMAPPA GOWDA v. C.C. CHANDREGOWDA
(DEAD) BY LRS. AND ANOTHER reported in (2012) 5 SCC
265 and relied upon paragraph Nos.25 and 26, wherein the
Court held that the Court has to look into the plaint while
passing the judgment, if the defendant does not contest the
suit. The learned counsel brought to the notice of this Court
that in the plaint it is stated that no building is constructed and
suppressed the material. The learned counsel also contend
that fraud including suppression of material facts render a
decree obtained by such a fraud in nullity and referred the
judgment of the Hon’ble Apex Court in the case of S.P.
CHENGALVARAYA NAIDU (DEAD) BY LRS v. JAGANNATH
(DEAD) BY LRS AND OTHERS reported in (1994) 1 SCC 1
and brought to notice of this Court paragraph No.5. The
learned counsel also relied upon the judgment of the Hon’ble
Apex Court in the case of MEGHMALA AND OTHERS v.
G.NARASIMHA REDDY AND OTHERS reported in (2010) 8
SCC 383 and brought to the notice of this Court paragraph
No.28.
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5. The learned counsel in support of his arguments
with regard to the scope of review is concerned under Order 47
Rule 1 of CPC in respect of discovery of an important fact,
brought to the notice of this Court the judgment of the Hon’ble
Apex Court in the case of BOARD OF CONTROL FOR
CRICKET IN INDIA AND ANOTHER v. NETAJI CRICKET
CLUB AND OTHERS reported in (2005) 4 SCC 741 and so
also the judgment 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 and also the judgment of the
Hon’ble Apex Court in the case of MORAN MAR BASSELIOS
CATHOLICOS AND ANOTHER v. MOST REV. MAR POULOSE
ATHANASIUS AND OTHERS reported in (1954) 2 SCC 42.
The learned counsel also brought to the notice of this Court
that the Trial Judge ought not to have disposed the restoration
of application filed by the petitioner and in support of his
contentions relied upon the judgment of the Hon’ble Apex Court
in the case of DWARIKA PRASAD (D) THROUGH LRS. v.
PRITHVI RAJ SINGH reported in 2024 SCC OnLine SC 3828
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and also in the case of M.K. PRASAD v. P. ARUMUGAM
reported in (2001) 6 SCC 176.
6. The learned counsel in support of his arguments
relied upon the judgment of the Hon’ble Apex Court dated
08.10.2025 passed in Special Leave Petition (Civil)
No.21917/2025 and brought to the notice of this Court
paragraph No.2 with regard to procedural law is not to be a
tyrant but a servant, not an obstruction but an gate to justice.
It is the handmaid of justice and not its mistress. The learned
counsel also brought to the notice of this Court paragraph
Nos.3, 9 and 11 and so also paragraph Nos.12 and 13 and also
brought to the notice of this Court paragraph No.24, wherein in
detail considered the factual matrix of the case. The learned
counsel also relied upon the judgment of this Court in the case
of LEELADEVI AND OTHERS v. NARAYAN AND OTHERS
reported in MANU/KA/1228/2017 and brought to the notice
of this Court the discussion made in paragraph No.11, wherein
it is held that it is quite common that a party, who is in
advantageous position having obtained an interim order or who
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derives benefit in one way or the other due to delay or has a
weak case does not allow a suit to be decided.
7. The learned counsel referring these judgments
would vehemently contend that no opportunity was given to the
review petitioner and proceeded erroneously and even not
given an opportunity when the application was made and mere
posting of the judgment of the case itself is not a ground to
comes to a conclusion.
8. Per contra, the learned counsel for the respondents
would vehemently contend that this Court while passing an
order, in detail considered the case of the parties and in
paragraph No.12 taken note of whether it is a case for imposing
the cost and even for imposing the cost also, the appellant has
not made out any grounds to set aside the judgment of the
Trial Court as well as to reverse the judgment of the First
Appellate Court and detail discussion was made from paragraph
Nos.13 to 17. This Court also taken note of even order sheet
as well as an opportunity given and also the judgment in the
case of SANGRAM SINGH v. ELECTION TRIBUNAL reported
in AIR 1955 SC 425 as well as case of Rafiq (supra) was also
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discussed and comes to the conclusion that the appellant has
not made out the ground and it is not a case for admitting the
same and the Court cannot grant such relief on the whims and
fancies of the appellant. The appellant being a doctor who is
running a hospital in the very same building, cannot seek for
remand in the second appeal to set aside the matter and fix
time bound trial and give direction to dispose of the matter on
merits. This Court also taken note of document of partnership
dated 30.08.2017 as well as the sale deed came into existence
on the very next day i.e., on 31.08.2017 and what made to
have the sale deed on the very next day after entering into a
new partnership, which was registered before the Registrar of
Partnership, no explanation on the part of the appellant and the
same is discussed in paragraph No.17.
9. The learned counsel for the respondents in support
of his arguments relied upon the judgment of the Hon’ble Apex
Court in the case of MALLEESWARI v. K. SUGUNA AND
ANOTHER reported in 2025 SCC OnLine SC 1927, wherein
discussion was made in paragraph Nos.14 and 17 with regard
to under what circumstances the Court can exercise the review
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jurisdiction. The learned counsel also submits that no new
factor has arisen as the order passed by the Deputy
Commissioner was challenged before this Court in the year
2024 itself and the same is stayed and the same is not relevant
in respect of this suit is concerned and suit is only in respect of
having obtained the sale deed fraudulently in respect of the
transaction and not in respect of the title is concerned and
hence, the same cannot be a ground. Other than urging this
ground, no other grounds are urged to invoke the review
jurisdiction.
10. Having heard the learned counsel for the review
petitioner as well as the learned counsel for the respondents,
the issue involved between the parties is with regard to the
sale transaction is concerned. The plaintiffs/respondents had
filed a suit before the Trial Court in respect of the sale obtained
by the review petitioner herein and the Court comes to the
conclusion that the sale deed was obtained fraudulently in the
guise of obtaining the document of partnership deed which
came into existence on 30.08.2017 and on the very next day,
sale deed came into existence i.e., on 31.08.2017. But this
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Court cannot consider the review petition as an appeal and
scope of review is very limited. If any error is apparent in the
order passed by this Court, this Court can exercise its review
jurisdiction. There is no dispute with regard to the principles
laid down in the judgments referred supra relied upon by the
learned counsel for the review petitioner with regard to even if
it is an exparte judgment, the Court has to look into the
material on record and pass an order. The learned counsel for
the review petitioner would submit that the Trial Court passed
an order in one paragraph and in nutshell not discussed the
case of the respondents herein. The learned counsel for the
review petitioner submits that while exercising the review
jurisdiction, if materials are brought on record and given an
opportunity, the result would be different. While exercising the
review jurisdiction, the Court has to take note of whether this
Court committed an error and whether there is a mistake
apparent on record.
11. Having considered the reasoning of this Court while
disposing of the second appeal, from paragraph Nos.13 to 17,
this Court taken note of the circumstances under which the suit
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was filed and an opportunity was given and for a period of two
years from the date of appearance through an advocate,
written statement was not filed. For about almost 5 to 6
months even though time was given to file the written
statement, the same was not filed. Even though appearance
was made in the month of June, the written statement was not
filed. Subsequent to that also when the case was set down for
plaintiff’s evidence, the plaintiff was examined, but not filed the
written statement subsequently or contested the matter. When
the suit was heard and posted for judgment, at that juncture,
advancing the case an application is filed and hence, the Trial
Court rejected the same. No doubt, the learned counsel for the
review petitioner would submit that a reference was made that
no written statement was filed. But the fact is that when the
application was filed, the same was rejected and once it is
rejected, the Trial Court rightly mentioned that the written
statement was not filed. If the application was allowed and not
considered the written statement and not given an opportunity,
then there would have been a force in the contention of the
learned counsel for the review petitioner.
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12. The other ground urged before this Court is that a
new material came to the knowledge of the review petitioner
subsequent to the disposal of RSA. No doubt, the learned
counsel for the review petitioner brought to the notice of this
Court the order passed by the Deputy Commissioner and the
same is not at the instance of the review petitioner and the
same is filed by other persons with regard to the grant is
concerned and the same is stayed by this Court in the year
2024 itself, wherein with regard to the grant is concerned,
question is made. But the issue before this Court is with regard
to the sale made in favour of the review petitioner and it is
alleged that the same is obtained fraudulently. Even though
there was an existence of partnership deed, on the very next
day, sale deed came into existence and same is fraudulently
obtained. When such being the case, the very ground urged by
the learned counsel for the review petitioner that a new factor
came to the knowledge of the review petitioner subsequent to
the disposal of RSA will not come to the aid of the review
petitioner and the same is in respect of grant is concerned.
Already matter is seized before this Court by filing a writ
petition and also stay is granted. When such being the case,
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the same is not relevant for consideration of this review petition
as the Review Petitioner is also not disputing the title of the
respondent herein. Hence, I do not find any ground to review
the order passed by this Court and this Court in detail dealt
with the matter from paragraph Nos.13 to 17. All the grounds
have been urged before this Court in the second appeal itself
and this Court cannot sit and decide the same as an appeal if
there is no material before the Court that the order is error as
apparent on record.
13. No doubt, the learned counsel for the respondents
also relied upon the recent judgment of the Hon’ble Apex Court
in the case of Malleeswari (supra), wherein the Apex Court
reiterated the grounds of review in paragraph Nos.14, 15 and
17. The very contention of learned counsel for the review
petitioner is that the ground of discovery of new and important
matter or evidence is a ground available if it is demonstrated
that, despite the exercise of due diligence, this evidence was
not within their knowledge or could not be produced by the
party at the time, the original decree or order was passed. But
the same cannot be a discovery of new and important matter
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and the same is in respect of consideration of grant in favour of
the respondents herein and the same is also subject to the
result of the writ petition, which is pending before this Court
and the same will not come to the aid of the review petitioner
as there is no dispute with regard to the title and review
petitioner is also claiming right through the respondent herein
only. Hence, I do not find any ground to allow the review
petition and no such ground is made out to invoke Order XLVII
Rule 1 of CPC and hence, the review petition is dismissed.
SD/-
(H.P.SANDESH)
JUDGE
MD
List No.: 1 Sl No.: 15