Bishan Dass vs Charan Dass And Ors. ...
2021 Latest Caselaw 1754 HP

            IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
                                                                CMP(M) No. 100 of 2021
                                                              Date of Decision: 6.3.2021
    _______________________________________________________




                                                                        .
                                               [





    Bishan Dass                                                ......Applicant/Petitioner.
                                           Versus





    Charan Dass and Ors.                            ....Non-applicants/Respondents.

    Coram
    Hon'ble Mr. Justice Sandeep Sharma, Judge.
    Whether approved for reporting1?





    For the petitioner:            Mr. Ajay Sharma, Senior Advocate with Mr. Amit
                                   Jamwal, Advocate.

    For the respondents:           Nemo.


    Sandeep Sharma, J. (Oral)

By way of present application filed under Section 5 of the Limitation

Act, prayer has been made on behalf of the applicant/petitioner to condone the

delay of 3 years 4 months and 16 days in filing the accompanying review petition.

2. Averments contained in the aforesaid application bearing CMP(M)

No. 100 of 2021, if read in its entirety, nowhere reveal that plausible explanation, if

any, has been rendered on record by the applicant/petitioner qua the inordinate

delay. Judgment sought to be reviewed was passed on 28.10.2016, but no specific

reasons have been assigned for not filing review, if any, within the prescribed period

of limitation. Though an attempt has been made to carve out a case that factum

with regard to passing of final judgment dated 28.10.2016, by this Court in RSA No.

234 of 2008, was not in the knowledge of the applicant/petitioner, but no affidavit of

Advocate, who was representing the applicant/petitioner in the aforesaid RSA, has

Whether reporters of the Local papers are allowed to see the judgment?

been annexed, stating therein that he, inadvertently, failed to apprise the

applicant/petitioner with regard to passing of judgment dated 28.10.2016. It has

been very casually written in the application that few months back, applicant

.

received notice from the court at Una in execution petition. Neither specific date or

month, in which notices were received, nor number of execution petition, if any,

pending before the executing court has been furnished. Moreover, as per own

case of the applicant, factum with regard to filing of the execution petition had

come to the knowledge of the applicant in March, 2020, but on account of COVID-

19, counsel representing them in this regard could not be contacted.

3. Though having carefully perused reasons rendered on record qua

the delay, application for condonation of delay in maintaining the accompanying

review petition deserves outright rejection, but even otherwise also, having carefully

perused ground taken for review, this Court sees no material illegality manifest in the

judgment dated 28.10.2016, passed by this Court in RSA No. 234 of 2008,

undermining its correctness or resulting into miscarriage of justice. By now, it is well

settled that review is not an appeal in disguise, entitling a party to be heard simply

because the party wants a division to be otherwise.

4. Having heard learned counsel for the applicant/petitioner and

perused material available on record, this Court finds no illegality and infirmity in the

judgment sought to be reviewed and as such, no interference is warranted. The

review jurisdiction is not meant to appreciate and re-appreciate the facts already

considered and urged. The review petition cannot be equated with original hearing

of the case and finality of the judgment cannot be questioned by opening the

entire case. The submission made that the decision suffers from an error apparent on

the face of the record cannot be accepted. The Hon'ble Supreme Court in

M/s.Thungabhadra Industries Ltd. vs. The Government of Andhra Pradesh, AIR 1964

SC 1372, held:

"11. .....a review is by no means an appeal in disguise

.

whereby an erroneous decision is reheard and corrected,

but lies only for patent error. We do not consider that this furnishes a suitable occasion for dealing with this difference exhaustively or in any great detail, but it would suffice for us to say that where without any elaborate argument one could point to the error and say here is a substantial point

of law which stares one in the face, and there could reasonably be no two opinions entertained about it, a clear case of error apparent on the face of the record would be made out....." (P.1377)

5. Consequently, in view of above, the present application for

condonation of delay is dismissed being devoid of any merits. In view of instant

order passed in the aforesaid application, review petition also stands disposed of

automatically.

    6th March, 2021                                          ( Sandeep Sharma ),
    manjit                                                        Judge.