- 1 - NC: 2025:KHC-D:6246 RP No. 100100 of 2019 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 8TH DAY OF APRIL 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REVIEW PETITION NO. 100100 OF 2019 (-) BETWEEN: 1. PRAKASHGOUDA MALLANAGOUDA RAMANAGOUDAR, AGE: 33 YEARS, OCC: AGRICULTURE, R/AT: C/O. VR DODDALINGANAGOUDAR, VIL: SHIRAGUPPI, TQ: HUBBALLI-580023, DIST: DHARWAD. 2. NIJAGUNIGOUDA MALLANAGOUDA RAMANAGOUDAR, AGE: 22 YEARS, OCC: STUDENT, R/AT: C/O VR DODDALINGANAGOUDAR, VIL: SHIRAGUPPI, TQ: HUBBALLI-580023, DIST: DHARWAD. 3. MANJUALA D/O. MALLANAGOUDA RAMANAGOUDAR, AGE: 27 YEARS, OCC: HOUSEHOLD, R/AT: C/O VR DODDALINGANAGOUDAR, VIL: SHIRAGUPPI, TQ: HUBBALLI-580023, DIST: DHARWAD. 4. DEVANNAVVA W/O. MALLANAGOUDA RAMANAGOUDAR, AGE: 56 YEARS, OCC: HOUSEHOLD, R/AT: C/O VR DODDALINGANAGOUDAR, VIL: SHIRAGUPPI, TQ: HUBBALLI-580023, DIST: DHARWAD. …PETITIONERS (BY SRI. B.S. KAMATE, ADVOCATE) Digitally signed by YASHAVANT NARAYANKAR Location: High Court of Karnataka, Dharwad Bench - 2 - NC: 2025:KHC-D:6246 RP No. 100100 of 2019 AND: SHEKHARAPPA KALLAPPA GUNJAL, SINCE DECEASED BY HIS LR’S. 1. SHIVAPPA SHEKHARAPPA GUNJAL, AGE: 50 YEARS, OCC: AGRICULTURE, R/O: MANTUR, TQ: HUBBALLI-581158, DIST: DHARWAD. 2. MEENAKSHI YALLAPPA ANNIKERI, AGE: 57 YEARS, OCC: AGRICULTURE, R/O: MANTUR, TQ: HUBBALLI-581158, DIST: DHARWAD. 3. MAHADEVAPPA SHEKHARAPPA GUNJAL, AGE: 52 YEARS, OCC: AGRICULTURE, R/O: MANTUR, TQ: HUBBALLI-581158, DIST: DHARWAD. NOTE: SHEKHARAPPA KALLAPPA GUNJAL, APPELLANT NO.1 IN R.S.A.52/2007 HAS DIED ON 23/08/2019 AND HIS LR’S ARE ALREADY ON RECORD RESPONDENTS 1 TO 3. …RESPONDENTS (BY SRI. DINESH M. KULKARNI, ADVOCATE FOR R1-R3) THIS REVIEW PETITION IS FILED UNDER ORDER 47 RULE 1 READ WITH SECTION 114 OF CPC PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 14/08/2019 PASSED IN R.S.A. NO 52/2007 BY ALLOWING THIS REVIEW PETITION IN THE INTEREST OF JUSTICE AND EQUITY. THIS PETITION, COMING ON FOR FINAL HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: - 3 - NC: 2025:KHC-D:6246 RP No. 100100 of 2019 CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH ORAL ORDER This Review Petition is filed under Order 47 Rule 1 read with Section 114 of the Code of Civil Procedure, 1908 (for short, hereinafter referred to as ‘CPC’), seeking review of the judgment and decree dated 14.08.2019 in RSA No.52/2007, before this Court. 2. I have heard Sri. B. S. Kamate, learned counsel appearing for the petitioners and Sri. Dinesh M. Kulkarni, learned counsel appearing for the respondents. 3. Sri. B. S. Kamate, learned counsel appearing for the petitioners contended that, the review petitioners herein were respondents in RSA No.52/2007 and have filed IA No.3/2017 under Order 41 Rule 27 of CPC in the appeal and have produced two mutation entries as additional documents to substantiate their case and same has not been considered by this Court by passing the final order in the judgment and decree dated 14.08.2019. Hence, the learned counsel appearing for the review petitioners, places reliance on the judgment of the Hon'ble - 4 - NC: 2025:KHC-D:6246 RP No. 100100 of 2019 Supreme Court in the case of Jatinder Singh and Another Vs. Mehar Singh and Others1 and contended that, since the judgment and decree under review has been passed without considering the application filed under Order 41 Rule 27 of CPC, so also, the documents enclosed as additional evidence which is having bearing on the disposal of the appeal and therefore, sought for interference of this Court. 3.1. Sri. B. S. Kamate, learned counsel appearing for the review petitioners also places reliance on the judgment of the Hon'ble Supreme Court in the case Khoday Distilleries Limited (now known as Khoday India Limited) and Others Vs. Sri. Mahadeshwara Sahakara Sakkare Karkhane Limited, Kollegal2 and contended that, though the impugned judgment and decree passed by this Court in RSA No.52/2007 dated 14.08.2019 was challenged before the Hon'ble Supreme Court in SLP (C) No.20643/2019, and the Hon'ble 1 AIR 2009 SC 354 2 (2019) 4 SCC 376 - 5 - NC: 2025:KHC-D:6246 RP No. 100100 of 2019 Supreme Court vide order dated 02.09.2019, dismissed the Special Leave Petition however, the said order of the Hon'ble Supreme Court is not a speaking order and therefore, in terms of the judgment referred to above in Khoday Distilleries Limited (supra), the judgment and decree under review requires to be interfered with in this review petition by exercising jurisdiction under Order 47 Rule 1 of CPC. 4. Per contra, Sri. Dinesh M. Kulkarni, learned counsel appearing for the respondents argued that, this Court after hearing both the sides and taking into consideration the judgment and decree passed by the Courts below, arrived at a conclusion that, the judgment and decree passed by the First Appellate Court was set aside, restoring the judgment and decree dated 14.02.2005 in OS No.297/1999 on the file of II Additional Civil Judge (Jr. Dn.), Hubballi and therefore, countered the submission made by the learned counsel appearing for the review petitioners. - 6 - NC: 2025:KHC-D:6246 RP No. 100100 of 2019 4.1. It is also contended by the learned counsel appearing for the respondents by referring to the order dated 02.09.2019 passed by the Hon'ble Supreme Court in SLP (C) No.20643/2019 and contended that, the Hon'ble Supreme Court after considering the entire material on record including the impugned judgment and decree passed by this Court in the Special Leave Petition, held that, no case has been made out to interfere with the judgment and decree passed by this Court and therefore, the entire aspect of the matter was considered by the Hon'ble Supreme Court including the application in IA No.3/2017 filed before this Court as the same has reached finality, hence it is argued that, the present review petition is not maintainable. Since, the Hon'ble Supreme Court has applied his mind on merits in respect of the judgment and decree dated 14.08.2019 in RSA No.52/2007, and therefore, the learned counsel appearing for the respondents sought for dismissal of the review petition on the ground that, there is no error apparent on the face of the record and the rights of the parties have been - 7 - NC: 2025:KHC-D:6246 RP No. 100100 of 2019 crystallized not only by this Court in RSA No.52/2007 and same has been confirmed by the Hon'ble Supreme Court referred to above and accordingly, sought for dismissal of the petition. 5. In the light of the submission made by the learned counsel appearing for the parties, the core question to be answered in this review petition is as follows: i) Whether this Court is having jurisdiction under Order 47 Rule 1 read with Section 114 of CPC to review the judgment and decree dated 14.08.2019 in RSA No.52/2007 after the order dated 02.09.2019 passed by the Hon'ble Supreme Court in SLP (C) No.20643 of 2019? 6. In the backdrop of the arguments advanced by the learned counsel appearing for the parties, it is not in dispute that, the suit is filed by the plaintiff/legal representatives of respondents herein in OS No.297/1999 seeking relief of declaration based on ‘Potige Patra’ dated 31.01.1961 and the suit was contested by the defendants - 8 - NC: 2025:KHC-D:6246 RP No. 100100 of 2019 therein / review petitioners herein. The said suit came to be decreed on 04.12.2005 and feeling aggrieved by the same, the defendants have preferred RA No.52/2005 before the First Appellate Court and the First Appellate Court by its judgment and decree dated 29.09.2006, allowed the appeal and as such, dismissed the suit filed by the plaintiffs. Feeling aggrieved by the same, the plaintiffs have preferred RSA 52/2007 before this Court and this Court vide judgment and decree dated 23.09.2014 disposed the appeal as per the observation made at paragraph No.7. The said judgment and decree passed by this Court on 23.09.2014 was questioned by both the parties in SLP (C) No.4011/2015. The Hon'ble Supreme Court granted leave to appeal and as such, the Special Leave Petition was converted into Civil Appeal No.9409/2016. The Hon'ble Supreme Court by its order dated 19.09.2016, disposed off the appeals filed by both the parties with a direction to parties to appear before this Court on 28.10.2016 and as such, set aside the judgment and decree dated 23.09.2014. Thereafter, the appeal was - 9 - NC: 2025:KHC-D:6246 RP No. 100100 of 2019 heard on merits by this Court and by judgment and decree dated 14.08.2019 allowed the appeal and as such the suit came to be decreed. Feeling aggrieved by the same, the review petitioners herein filed SLP (C) No.20643/2019 and the Hon'ble Supreme Court vide order dated 02.09.2019 ordered as follows” “No case is made out to interfere with the impugned order (s) passed by the High Court. The special leave petition is, accordingly, dismissed. Pending application (s), if any, shall stands disposed of.” 7. Pursuant to the order passed by the Hon'ble Supreme Court stated above the respondents in RSA No.52/2007 have preferred this review petition. 8. In the backdrop of the arguments advanced by the learned counsel appearing for the review petitioners, order dated 18.01.2018 passed by this Court in RSA No.52/2007 reads as under: “I.A.No.1/2017 is filed under Order 40 Rule 1 read with Section 151 of Civil - 10 - NC: 2025:KHC-D:6246 RP No. 100100 of 2019 Procedure Code seeking to appoint a receiver for five acres of southern portion of the suit land. The respondents have filed statement of objections by way of counter affidavit. Having regard to the nature of the relief claimed in the appeal and the dispute between the parties, the said application is ordered to be heard along with the main. I.A.No.3/2017 is filed by respondents for production of two Mutation Entries as additional documents. For the above reasons, this application also is ordered to be considered along with the main. I.A.No.2/2017 is filed for early hearing. In view of the observation made by the Hon’ble Supreme Court while remanding the matter, application is allowed. With the consent of both the parties, the matter will be taken up for final hearing on 24.01.2018.” 9. Perusal of the aforementioned order would indicate that, IA No.3/2017 is filed by the respondents therein/review petitioners herein under Order 41 Rule 27 of CPC and produced certain documents as additional - 11 - NC: 2025:KHC-D:6246 RP No. 100100 of 2019 evidence. This Court has held that, the said application shall be considered along with the main petition. In this aspect of the matter , it is relevant to extract paragraph Nos.4 to 8 of the judgment of the Hon'ble Supreme Court in the case of Jatinder Singh (supra) as under: “4. While deciding the second appeal, however, the High Court had failed to take notice of the application under Order 41 Rule 27 of the Code of Civil Procedure and decide whether additional evidence could be permitted to be admitted into evidence. In our view, when an application for acceptance of additional evidence under Order 41 Rule 27 of the Code of Civil Procedure was filed by the appellants, it was the duty of the High Court to deal with the same on merits. That being the admitted position, we have no other alternative but to set aside the judgment of the High Court and remit the appeal back to it for a decision afresh in the second appeal along with the application for acceptance of additional evidence in accordance with law. 5. For the reasons aforesaid, the impugned Judgment is set aside. The appeal is thus allowed to the extent indicated above. There will be no order as to costs. - 12 - NC: 2025:KHC-D:6246 RP No. 100100 of 2019 6. We make it clear that we have not gone into the merits as to whether the application for acceptance of additional evidence under Order 41 Rule 27 of the Code of Civil Procedure should be allowed or not, which shall be decided by the High Court at the time of decision of the second appeal in accordance with law. We also make it clear that we have not gone into the merits of the second appeal which shall also be decided by the High Court along with the application under Order 41 Rule 27 of the Code of Civil Procedure. Considering the facts and circumstances of the case, we request the High Court to dispose of the second appeal at an early date preferably within six months from the date of supply of a copy of this order to it. 7. In view of the order passed in C.A.No.5781 of 2008 @ SLP)No.18759 of 2006, Contempt Petition ) No.57 of 2008 is disposed of. 8. In view of our decision in the appeal itself, we do not feel inclined to entertain the Interlocutory Application filed by the petitioner during when the matter was kept for Judgment. Accordingly, the said application - 13 - NC: 2025:KHC-D:6246 RP No. 100100 of 2019 for interim direction is disposed of as infructuous.” 10. It is also to be noted that, the learned counsel appearing for the respondents herein contended that, as the judgment of this Court has been confirmed by the Hon'ble Supreme Court in SLP (C) No.20643/2019 dated 02.09.2019, it is relevant to deduce the declaration of law made by the Hon'ble Supreme Court in the case of the Khoday Distilleries Limited (supra), paragraph No.29 reads as under: “29. In this case, we find that the special leave petition was dismissed with the following order passed on 5-1-2012: "We find no ground to interfere with the impugned order. The special leave petition is dismissed.” Here also, the special leave petition was dismissed in limine and without any speaking order. After the dismissal of the special leave petition, the respondent in this appeal had approached the High Court with review petition. The said review petition is allowed by - 14 - NC: 2025:KHC-D:6246 RP No. 100100 of 2019 passing order dated 12-12-2012 on the ground of suppression of material facts by the appellant herein and commission of fraud on the Court. Such a review petition was maintainable. Therefore, the High Court was empowered to entertain the same on merits. Insofar as appeal of the appellant challenging the order dated 12-12-2012 on merits is concerned, the matter shall be placed before the regular Board to decide the same.” 11. Following the declaration of law made by the Hon'ble Supreme Court in the aforementioned cases and taking into consideration that, this Court vide order dated 18.01.2018 referred to above held that, IA No.3/2017 shall be considered along with the main and therefore, I find force in the submission made by the learned counsel appearing for the review petitioners and case has been made out by the review petitioners to interfere with the judgment and decree dated 14.08.2019 in RSA No.52/2007, as the said application has not been considered on merits. - 15 - NC: 2025:KHC-D:6246 RP No. 100100 of 2019 12. It is pertinent to mention that, the Hon’ble Supreme Court in the case of State of Odisha and Others Vs. Sulekh Chandra Pradhan and Others3, at paragraph Nos.38 and 39 held as follows: “38. That leaves us with the submission of Shri. R. Balasubramanian, learned Senior Counsel that since the view taken by the Tribunal has been affirmed by the High Court and the special leave petition challenging the same has been dismissed, the view of the Tribunal has become final. In this respect, reliance could be placed on the judgment of this Court in the case of Kunhayammed vs. State of Kerala, wherein this Court has held as under: “27. A petition for leave to appeal to this Court may be dismissed by a non- speaking order or by a speaking order. Whatever be the phraseology employed in the order of dismissal, if it is a non- speaking order, i.e., it does not assign reasons for dismissing the special leave petition, it would neither attract the 3 (2022) 7 SCC 482 - 16 - NC: 2025:KHC-D:6246 RP No. 100100 of 2019 doctrine of merger so as to stand substituted in place of the order put in issue before it nor would it be a declaration of law by the Supreme Court under Article 141 of the Constitution for there is no law which has been declared. If the order of dismissal be supported by reasons then also the doctrine of merger would not be attracted because the jurisdiction exercised was not an appellate jurisdiction but merely a discretionary jurisdiction refusing to grant leave to appeal. We have already dealt with this aspect earlier. Still the reasons stated by the Court would attract applicability of Article 141 of the Constitution if there is a law declared by the Supreme Court which obviously would be binding on all the courts and tribunals in India and certainly the parties thereto. The statement contained in the order other than on points of law would be binding on the parties and the court or tribunal, whose order was under challenge on the principle of judicial discipline, this Court being the Apex Court of the country. No court or tribunal or parties would have the liberty of taking - 17 - NC: 2025:KHC-D:6246 RP No. 100100 of 2019 or canvassing any view contrary to the one expressed by this Court. The order of Supreme Court would mean that it has declared the law and in that light the case was considered not fit for grant of leave. The declaration of law will be governed by Article 141 but still, the case not being one where leave was granted, the doctrine of merger does not apply. The Court sometimes leaves the question of law open. Or it sometimes briefly lays down the principle, may be, contrary to the one laid down by the High Court and yet would dismiss the special leave petition. The reasons given are intended for purposes of Article 141. This is so done because in the event of merely dismissing the special leave petition, it is likely that an argument could be advanced in the High Court that the Supreme Court has to be understood as not to have differed in law with the High Court.” [emphasis supplied] 39. It is thus clear that a mere dismissal of the Special Leave Petition would not mean that the view of the High Court has been - 18 - NC: 2025:KHC-D:6246 RP No. 100100 of 2019 approved by this Court. As such, the contention in that regard is rejected. 13. Taking into consideration the fact that, Section 114 of CPC empowers the Courts to review its order if the conditions precedent laid down therein are not satisfied and in view of the fact that, the order dated 18.01.2018 in RSA No.52/2007 has not been considered by this Court at the time of final hearing. 14. It is also to be noted that, the Hon’ble Supreme Court in the case of State of Odisha and Others (supra) has held that, mere dismissal of Special Leave Petition by the Hon’ble Supreme Court cannot be assumed that, the impugned order therein passed by the High Court has been approved. Therefore, I find material to interfere with the impugned judgment and decree passed by this Court that, there is an error apparent on the face of record. Hence, I pass the following: ORDER i) The Review Petition is allowed. - 19 - NC: 2025:KHC-D:6246 RP No. 100100 of 2019 ii) Judgment and decree dated 14.08.2019 in RSA No.52/2007 before this Court is hereby set aside and RSA No.52/2007 is restored on file. Sd/- (E.S.INDIRESH) JUDGE SMM / CT-MCK List No.: 1 Sl No.: 46