1 in the High Court of Karnataka at Bengaluru
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1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17 TH DAY OF JANUARY 2018 BEFORE THE HON’BLE MR.JUSTICE BUDIHAL R.B. REVIEW PETITION No.499/2015(GM-CPC) BETWEEN : 1. Sri K Raja Aged about 47 years S/o K Kariya R/o Radha Nivas Kuntibail, Miyar Post Karkala Taluk Udupi District Karnataka-574 104. 2. Sri Prakash Devadiga Aged about 41 years S/o Narayana Devadiga R/o ‘Abhishek Nilaya’ Kallotte, Pervaje Karkala Karnataka-574 104. ... PETITIONERS (By Sri Mamatha Shetty, Adv.) AND : 1. Smt Mariyamma Aged about 62 years W/o Late Abbas Beary R/at Near Sanoor Bridge 2 Sanoor Village Karkala Taluka Karnataka-574 104. 2. Mohammed Ashraf Aged about 34 years S/o Late Abbas Beary R/at Near Sanoor Bridge Sanoor Village Karkala Taluka Karnataka-574 104. 3. Miss Naseema Aged about 28 years D/o Late Abbas Beary R/at Near Sanoor Bridge Sanoor Village Karkala Taluka Karnataka-574 104. 4. Mohammed Ashpak Aged about 26 years S/o Late Abbas Beary R/at Near Sanoor Bridge Sanoor Village Karkala Taluka Karnataka-574 104. 5. Mohammed Haneef Aged about 36 years S/o Late Abbas Beary R/at Near Sanoor Bridge Sanoor Village Karkala Taluka Karnataka-574 104. ….RESPONDENTS (R-1 to R-5 Served and Unrepresented) 3 This Review Petition is filed under Order XLVII Rule 1 of CPC., praying to review the order dated 27.10.2014 passed in R.S.A.No.1450/2011 on the file of Hon’ble High Court of Karnataka, Bangalore. This Review Petition coming on for Admission this day, the Court made the following: O R D E R This review petition is by petitioner Nos.1 and 2 - defendants under Order XLVII Rule 1 read with Section 114 of CPC praying to review the order dated 27.10.2014 passed by this Court in R.S.A. No.1450/2011, in the interest of justice and equity. 2. Heard learned Counsel for the review petitioners. The respondents, though served with the notice of the review petition, have remained absent and there is no representation. 3. Learned Counsel for the review petitioners submitted that the regular second appeal came to be 4 dismissed by this Court confirming the order of the Courts below and thereafter, an SLP was preferred before the Hon’ble Supreme Court in SLP No.5208/2015. Though SLP also came to be dismissed on 9.3.2015 with the observation that “we are not inclined to interfere with the order of the High Court”, the learned Counsel made submission that in the said order in the second paragraph, the Hon’ble Supreme Court has observed as under: “ However, liberty is granted to the petitioner to file an application for review with the limited purpose that the legal heirs should be directed to refund the amount paid to the father under the agreement in question. If such an application is filed, it shall be dealt with in accordance with law. Be it clarified that we have not observed anything on that score.” Hence, the learned Counsel submitted that in view of this observation and liberty given by the Hon’ble Supreme Court, the petitioners are before this Court in this review petition. 5 4. I have perused the averments made in the review petition so also the records of the Courts below produced in suit as well as the regular appeal and the also order passed in RSA. 5. The respondents-plaintiffs filed suit before the trial Court for the relief of declaration that the sale deed dated 13.12.2002 executed by defendant No.1 in his capacity as power of attorney of late Abbas Beary in favour of defendant No.2 as null and void and consequently, for permanent injunction to restrain the defendants and anybody on their behalf from interfering with the peaceful possession and enjoyment of ‘A’ schedule property. In the said suit, the defendants also claimed by way of counter claim, the relief of mandatory injunction directing the plaintiffs to execute the sale deed in their favour with regard to ‘A’ schedule property and put them into possession of the said property. 6 6. As per the relevant facts involved in the case, four dates were important to decide the matter. On 19.8.1999, the deceased Abbas Beary executed agreement in favour of defendant No.1 for the sale of ‘A’ schedule property and it is also case of appellants-defendants that on the same day, the said Abbas Beary also executed GPA in favour of defendant No.1. According to defendants’ case, it is the general power of attorney which is coupled with interest as per Section 202 of Contract Act and it is irrevocable. For the purpose of this review application is concerned, another fact which is important is that it is the case of defendants that under the agreement of sale, defendant No.1 paid Rs.1.00 lakh as advance sale consideration and remaining amount will be paid at the time of registration of the sale deed. So far as Rs.1.00 lakh is concerned, for this, the plaintiffs admitted in their pleadings about the receipt of Rs.1.00 lakh so also in the agreement of sale, there is a mention about the payment of Rs.1.00 lakh by defendant No.1. Even during the course of evidence also, it had come on record that such amount of 7 Rs.1.00 lakh was paid by defendant No.1 as advance sale consideration. Now in this review petition, the petitioners- defendants are claiming Rs.1.00 lakh advance amount to be refunded to them with interest. 7. When looking to the records of the case, it is an admitted fact that the respondents-plaintiffs have received Rs.1.00 lakh. They have to repay the amount because the suit has been decreed in their favour. When that is so, defendant No.1 should not be deprived of receiving back the amount of Rs.1.00 lakh with interest. No man is permitted to become rich at the cost of another, unjust enrichment is not allowed in law. Though opportunity is given to the respondents to appear in review petition to make their submission, they have remained absent. Therefore, looking to the materials placed on record and as it is an admitted fact in the pleadings and by way of evidence that defendants have paid Rs.1.00 lakh to the plaintiffs as advance sale consideration, the review petitioner-defendant No.1 is 8 entitled for the repayment of amount of Rs.1.00 lakh with interest at 9% p.a. from the date of payment of Rs.1.00 lakh i.e., from 19.8.1999, till realization. The said amount is to be paid within 60 days from the date of passing of this order failing which the review petitioners-defendants are at liberty to take legal steps in the matter for recovery of the said amount. With this observation, the review petition is disposed of, and to that extent the Judgment and order passed in the RSA is modified. Sd/- JUDGE Cs/- CT-SG .