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Smt Srithi T S vs Sri Ajay Krishna Naidu C S on 25 January, 2019

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 25th DAY OF JANUARY, 2019

PRESENT

THE HON’BLE MR. JUSTICE K.N. PHANEENDRA

AND

THE HON’BLE MR.JUSTICE B.A. PATIL

REVIEW PETITION NO.322/2018
IN
MFA NO.5490/2016 (FC)
BETWEEN:

Smt. Srithi T.S.
D/o T. Sreenivasulu
Aged about 32 years
R/at No.201, Raghava Residency
Shanthinagar, Masab Tank
Hyderabad-560 028
Telangana State.
… Petitioner
(By Sri G.R. Lakshmipathi Reddy, Advocate)

AND:

Sri Ajay Krishna Naidu C.S.,
S/o Sriramulu Naidu
Aged about 33 years
R/at Door No.5-12-1118/14,
‘Lakshmi’, Bhagavathi Nagar
1st Main Road, Mannagudda
Mangaluru-575 003
Karnataka State.
… Respondent
(By Sri A. Mahesh Chowdhary, Advocate)
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This Review Petition filed under order XLVII
Rule 1 r/w Section 114 of CPC, praying to 1) put up
the records in MFA No.5490/2016 on the file of this
Hon’ble Court; 2) Review and reconsider the order
dated 07.09.2017 made in MFA No.5490/2016 and
consequently dismiss the appeal confirming the
order dated 14..07.2016 MADE IN Misc.Petition
No.05/2015 on the file of Family Court, D.K.,
Mangalore; and 3) Grant such other relief or reliefs
Court may fit to grant such other circumstances of
the case.

This Review Petition coming on for orders this
day, K.N.PHANEENDRA J., delivered the following:-

ORDER

Heard the learned counsels appearing for the

petitioner as well as the respondent.

2. The present review petition is filed calling in

question the judgment dated 7.9.2017 passed by

this Court in MFA.No.5490/2016. Before adverting

to the grounds urged before this Court by the

learned counsel for the petitioner, we feel that it is

just and proper to have necessary factual matrix of

this case.

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3. The petitioner and the respondent are the

wife and the husband respectively. It is an

admitted fact that their marriage was solemnized

on 25.4.2012 at Hyderabad. Due to some

misunderstanding, the husband has filed a petition

in MC.No.239/2012, seeking to declare their

marriage as null and void. By virtue of the said

petition, the notices were ordered and holding that

notice on the wife has been served, the petition was

allowed granting annulment of marriage as sought

for. After coming to know about the said decree,

the wife has challenged the same by way of

Miscellaneous Case No.5/2015 and the same came

to be allowed vide order dated 14.7.2016 by the

trial Court restoring MC.No.239/2012 to be

considered on merits after providing opportunity to

both the parties. Being aggrieved by the said order

restoring the petition, the husband has approached

this Court in the aforesaid MFA.No.5490/2016
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seeking setting aside the order passed by the trial

Court in restoring the said MC petition.

4. During the course of submission of

arguments before this Court, both the counsels

have submitted that the trial Court need not go into

the factum and finding regarding annulment of

marriage once again as the findings have already

given by the trial Court and those findings with

regard to the annulment of the marriage, need not

be touched upon. However, both the counsels have

requested this Court to remit the matter to the trial

Court only for the limited purpose of considering

the factum of remarriage and for fixing the

permanent alimony to the petitioner herein. On the

basis of the said submissions made by the learned

counsels, this Court has passed the order allowing

the appeal in part remitting the matter only for the

limited purpose of proving the factum of remarriage
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and for taking appropriate decision on the aspect of

permanent alimony to the petitioner herein.

5. The learned counsel for the petitioner in

this petition has seriously contended before the

Court that, the respondent-husband has played

fraud before the trial Court as well as before this

Court. He also contended that the learned counsel

who appeared for the respondent in MFA has not

properly represented and erroneously submitted

before the Court which amounts to consenting for

the annulment of the marriage. Therefore, relying

upon such submission, this Court has erroneously

passed the judgment which requires to be modified.

He further contended that once the matter has

been remitted to the trial Court, fullest opportunity

should be given to the parties. Therefore, he

submitted that principles of natural justice has been

affected and same has to be corrected by this

Court. He has also drawn our attention that, the
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wife has also filed a petition for restitution of

conjugal rights as well as the complaint against the

husband for the offence punishable under Section

498A of IPC, etc. If the opportunity is not given to

challenge the decree passed by the trial Court with

regard to annulment of the marriage, aforesaid

proceedings with regard to conjugal rights as well

as complaint for the offence punishable under

Section 498A of IPC may also become infructuous.

For all these reasons the judgment passed by this

Court requires to be reviewed.

6. Per contra, the learned counsel appearing

for the respondent contended that absolutely it is

not the judgment passed on merits of the case. It is

the order passed by this Court on the consent given

by both the counsels restricting their claim before

the trial Court, regarding fixing of the permanent

alimony to the wife by the trial Court. Therefore,

the petitioner has not made out any case that there
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is any error or mistake in the judgment passed by

this Court. There are no pleadings pleaded by the

respondent or counsel on this particular aspect.

Therefore, he contended that petition is devoid of

merits and the same is liable to be dismissed.

7. In order to review its own order passed by this

Court, the petitioner has to make out the grounds

for review as contemplated under Order XLVII Rule

1 of CPC. We have to gainfully extract the said

provision for convenience, which reads thus:-

i) In order to file a review petition a
person has to make out the ground
that he has discovered a new and
important matter or evidence which,
after the exercise of due diligence was
not within his knowledge; or

ii) on account of some mistake or error
apparent on the face of the record; or

iii) for any other sufficient reason, desires
to obtain a review of the decree passed
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or order made against him, then only
he may apply for a review of the
judgment.

(Emphasis supplied)

8. On careful perusal of the grounds urged in this

review petition, there are absolutely no averments

that in spite of due diligence some new or

important matter has been discovered and the

same was not within the knowledge of the party

and that ground is not pleaded and not available to

the present petitioner. Consequently, learned

counsel for the petitioner has not made out a case

as to what is an error or mistake committed by this

Court in the judgment. As we have already noticed

in the judgment, it is categorically observed by this

Court that both the counsels have conceded for

passing such judgment which is challenged by way

of review. Thus, they have clearly in unequivocal

terms consented for passing the judgment by this

Court for remitting the matter to the trial Court only

for limited purpose with regard to remarriage and
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for fixing the permanent alimony to the wife, but

the finding regarding annulment of marriage need

not be touched upon by the trial Court.

9. Therefore there are absolutely no grounds

urged with regard to any mistake or error apparent

on the face of the record or any sufficient reason in

such a manner that even a consent order can be set

aside. Though the learned counsel for the

petitioner has argued that some fraud has been

played by the respondent as well as his counsel

before this Court, the same has not been pleaded

as a ground in the review petition. More over, it is

not brought by the learned counsel for the

petitioner as to what is the nature of fraud that has

been played by the respondent or his counsel.

Fraud is a pure question of fact which has to be

proved by proper pleadings and evidence before the

Courts of law. In the absence of such materials we

do not find any reason for reviewing the judgment

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passed by this Court which virtually is a consenting

order passed by this Court. Hence, review petition

being devoid of merits is liable to be dismissed.

Accordingly, review petition is dismissed.

As we have considered the review petition on

merits after hearing both the counsels, delay need

not come in the way of disposing the petition on

merits. Therefore, I.A.No.1/2018 filed for

condonation of delay of 383 days is hereby

condoned.

I.A.No.2/2018 is dismissed as it does not survive

for consideration.

Sd/-

JUDGE

Sd/-

JUDGE
*ck/-

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