LexMALTHESH GUDDA POOJA versus STATE OF KARNATAKA & ORS.
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(2011) 11 S.C.R. 870
MALTHESH GUDDA POOJA
v.
STATE OF KARNATAKA & ORS.
{Civil Appeal No. 8525 of 2011)
OCTOBER 11, 2011
[R V RAVEENDRAN AND H L GOKHALE, JJ.]
Karnataka High Court Rules, 1959:
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Rule 5 of Chapter 3 of High Court Rules read with 0. 47,
rr. 1 and 5 CPC and Notification dated 29.12.2008 issued by
Karnataka High Court - Review of judgment delivered at
Circuit Bench - Judges or anyone of them who delivered the
original judgment not sitting at Circuit Bench - Listing of
D review petition as per roster of Circuit Bench - llELD: Rule 5
of Chapter 3 of High Court Rules will prevail over r.5 of 0.47
CPC - There is no inconsistency between r. 5 of Chapter 3 of
High Court Rules and r.5 of 0.47, CPC- The words 'absence
or other cause for a period of six months' in Rule 5 of Order
47 CPC and the words 'by reason of death, retirement or
E absence' in Rule 5 of Chapter 3 of the High Court Rules, in
essence refer to the same causes, due to which the review
application cannot be heard by the same bench which passed
the original order - Rule 5 of Chapter 3 of High Court Rules
does not specify the period of 'absence' but it is clear from
F the context that it does not refer to casual absence -
Therefore, it is appropriate to interpret the said words as
'absence for a period of six months next after the application'
by taking guidance from r. 5 of 0. 47 CPC - In the instant
case, after filing of the review petition, for more than six
G months the Original Bench either did not sit or dispose of the
review petition and it was possible that for six more months
there was no likelihood of the Judges constituting Original
Bench being together at Dharwad - Therefore, the listing of
the petition before a different Bench and hearing and deciding
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870
MALTHESH GUDDA POOJA v. STATE OF
871
KARNATAKA & ORS.
the same by that Bench as per Notification dated 29.12.2008,
was valid as per rules - Code of Civil Procedure, 1908 - 0.47,
r.5- High Court of Karnataka Notification No. HCBB.CBD.011
2008 dated 29. 12. 2008.
PRACTICE AND PROCEDURE:
Listing of writ appeal for hearing, after review petition was
allowed at Dharwad Bench of Karnataka High Court - The
Division Bench before which the memo for listing of writ appeal
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for hearing was listed, holding that the order allowing the review
was a nullity as a different Bench had no jurisdiction to take
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up the review petition - Held: When an application memo is
filed in a matter where review has been granted, the Bench
dealing with such memo or application is bound to proceed
on the basis of the said order granting review, in view of the
principles of finality and res judicata and ought to have listed
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the writ appeal for hearing and could not have examined the
correctness or validity of review order - Review - Resjudicata
- Principle of finality.
WORDS AND PHRASES:
'Absence' occurring in r.5 of Chapter 3 of Karnataka High
Court Rules - Connotation of.
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A petition for review of a judgment delivered by a
Division Bench in a writ appeal at the Dharwad Circuit
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Bench of the Karnataka High Court, was placed before a
different Division Bench at Dharwad Circuit Bench.
Respondent no. 3 objected to the hearing of the review
petition by the said Bench on the ground that the review
petition should be heard and decided by the same Bench
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which had heard and disposed of the writ appeal. It was
also contended that the Notification dated 29.12.2008 of
the High Court notifying that the review petitions relating
to the judgments passed by a Division Bench or a single
Judge in the Circuit Bench at Dharwad would be posted
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872
SUPREME COURT.REPORTS
[2011] 11 S.C.R.
A as per roster, was contrary to r.5 of the Karnataka High
Court Rules, 1959. The review petition was allowed by
order dated 17.12.2009. The appellant then filed a memo
for listing the writ appeal for hearing. The memo came up
for orders before a Division Bench at Dharwad Circuit
B Bench, which, by the impugned order held that the order
dated 17 .12.2009 allowing the review petition, was a
nullity inasmuch as a different Bench had no jurisdiction
to take up the review petition, grant a review and reverse
the ,order made in the writ appeal.
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In the instant appeal, the questions for consideration
before the Court were: {i) "whether a Division Bench of
the High Court, while considering a memo for listing an
appeal restored for fresh hearing on Excerpt shown. Read the full judgment & AI analysis in Lexace.