Reserved On: 06.08.202 vs Ghulam Mohammad Langoo
2021 Latest Caselaw 958 j&K/2

             HIGH COURT OF JAMMU AND KASHMIR
                       AT SRINAGAR
                             ...
                        RP no.63/2021
                         CM no.4102/2021;4103/2021

                                                    Reserved on: 06.08.2021
                                              Pronounced on: 25 .08.2021
Abdul Aziz Khan and another
                                                 .........Review Petitioner(s)
                                    Through: Mr Nisar Ahmad, Advocate
                                  Versus
Ghulam Mohammad Langoo
                                                       .........Respondent(s)
                                    Through: Mr M.A.Qayoom, Advocate
                                    with Mr M. Tufail, Advocate

CORAM:
          HON'BLE MR. JUSTICE VINOD CHATTERJI KOUL, JUDGE

                              JUDGEMENT

1. Review of judgement dated 28th May 2021, passed by this Court in Cross Appeal no.57/2013 arising out of CIA no.25/2013, titled as Abdul Aziz Khan and another v. Ghulam Mohammad Langoo, is sought for in petition on hand.

2. I have heard learned counsel for parties and considered the matter.

3. It would be apropos to have succinct glimpse of factual milieu, given case set up by review petitioners. Genesis of case relates to a shop and room, with respect whereof a civil suit titled Ghulam Mohammad Langoo v. Abdul Aziz Khan, was filed, in which a judgement and decree dated 28th December 2012 was passed by Additional District Judge Srinagar. The judgement and decree dated 28th December 2012 was set- aside qua partial eviction and suit of plaintiff-respondent was decreed and allowed by this Court vide judgement dated 28th May 2021, of which review is sought by appellants/review petitioners.

4. Learned counsel appearing for review petitioners has stated an appeal is continuation of a suit and appellate court has to decide the appeal as

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it is deciding the suit itself and it is the finding on the issues which has to be rendered by appellate court. Since petitioner was not allowed to file written statement to the amended plaint, the issues remained same in the suit. It is averred that respondents filed cross objection to the appeal filed by petitioner and took the ground of estoppel by stating that denial of title by a tenant constitutes the ground of eviction. It is also stated that what amounts to denial of title and whether such denial is bona fide or not or question to be determined in the facts and circumstances of each case. He also avers that it was not denial simpliciter, but based on the record and since there was no issue or finding recorded by the Trial Court, cross objections submitted by respondent deserved to be dismissed. It is also contended that in terms of cross objections, respondent had challenged the findings on Issue nos.9 and 10, rendered by the Trial Court and Trial Court had granted partial eviction decree in favour of respondent. No material or evidence has been pointed out in cross objections, which would suggest that findings returned by Trial Court on Issue nos.9 & 10 were contrary to records. This Court is said to have, while passing judgement under review, not taken above Issues independently for consideration, which is requirement of law and has allowed cross objections filed by respondents. It is submitted that first appellate court has a defined role and its judgement should reflect the reasons on the basis of which, it agrees or disagrees with the trial court but in the judgement under review, there is no independent reason on the above Issues.

5. Learned counsel for review petitioners further avers that while reversing finding of the Trial Court, the Appellate Court has to evaluate contentions of parties by discussing evidence led by parties on a particular issue inasmuch as First Appellate Court being last court of facts and law and, therefore, while reversing finding of the fact the appellate court must come into close quarters with reasoning assigned by Trial Court and then assign its own reasons for arriving at a different finding. He also states that in the instant case while reversing the finding on the Issue nos.8&9, no reasoning has been assigned and

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therefore judgement requires to be reviewed. It is also contention of learned counsel that cross appeal was filed for the sake of objections by respondents otherwise nothing was pointed out in the cross objections to indicate how findings on Issue nos.8&9 were liable to be reversed inasmuch as no grounds were urged therein, which culminated in passing of decree with regard to the said issues. He also contends that cross objection filed by respondents was in lieu of cross appeal as contemplated by Order XLI Rule 22(i) CPC, so it would attract ad valorem court fee.

6. While considering contentions, as aforesaid, the scope and ambit of Section 114 read with Order XLVII Rule 1 of the Code of Civil Procedure is to be taken into consideration.

7. The grounds on which review can be sought are enumerated in Order XLVII Rule 1 CPC, which reads as under:

"1. Application for review of judgment. - (1) Any person considering himself aggrieved-

(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,

(b) by a decree or order from which no appeal is allowed, or

(c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment of the court which passed the decree or made the order."

8. An application for review would lie, among others, when an order suffers from an error apparent on the face of record and permitting the same to continue would lead to failure of justice. Limitations on exercise of power of review are well settled. The first and foremost requirement of entertaining a review petition is that the order, review of which is sought, suffers from any error apparent on the face of the order and permitting the order to stand will lead to failure of justice. In absence of any such error, finality attached to the judgment/order cannot be disturbed.

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9. The power of review can also be exercised by the court in the event discovery of new and important matter or evidence takes place that despite exercise of due diligence was not within the knowledge of applicant or could not be produced by him at the time when the order was made. An application for review would also lie if the order has been passed on account of some mistake.

10.It is beyond any doubt or dispute that the review court does not sit in appeal over its own order. A rehearing of the matter is impermissible in law. It constitutes an exception to the general rule that once a judgment is signed or pronounced, it should not be altered. It is also trite that exercise of inherent jurisdiction is not invoked for reviewing any order.

11. Given contentions of learned counsel for applicants/review petitioners, it would be apt to mention here that the Court while rendering the judgement under review, has comprehensively discussed all facets of the matter. Insofar as submissions made by learned counsel for applicants/review petitioners and averments made in review petition are concerned, those are not the grounds that would portray or depict or show error apparent on the face of record but an Appeal under the guise of review petition.

12. The Supreme Court in Haridas Das v. Usha Rani Banik (Smt.) and Others, (2006) 4 SCC 78, while considering the scope and ambit of Section 114 CPC read with Order 47 Rule 1 CPC observed and held as under:

"14. In Meera Bhanja v. Nirmala Kumari Choudhury, (1995) 1 SCC 170 it was held that:

"8. It is well settled that the review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1 CPC. In connection with the limitation of the powers of the court under Order 47 Rule 1, while dealing with similar jurisdiction available to the High Court while seeking to review the orders under Article 226 of the Constitution, this Court, in Aribam Tuleshwar Sharma v. Aribam Pishak Sharma, (1979) 4 SCC 389 speaking through Chinnappa Reddy, J. has made the following pertinent observations: 'It is true there is nothing in Article 226 of the Constitution to preclude the High Court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the

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knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found, it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a court of appeal. A power of review is not to be confused with appellate power which may enable an appellate court to correct all manner of errors committed by the subordinate court.'

15. A perusal of Order 47 Rule 1 shows that review of a judgment or an order could be sought: (a) from the discovery of new and important matters or evidence which after the exercise of due diligence was not within the knowledge of the applicant; (b) such important matter or evidence could not be produced by the applicant at the time when the decree was passed or order made; and (c) on account of some mistake or error apparent on the face of the record or any other sufficient reason."

13. An error which has to be established by a long-drawn process of reasoning on points where there may conceivably be two opinions, can hardly be said to be an error apparent on the face of the record. An error that is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of record justifying the court to exercise its power of review under Order XLVII Rule 1 CPC. In exercise of jurisdiction under Order XLVII Rule 1 CPC, it is not permissible for an erroneous decision to be 'reheard and corrected'. A review petition, it must be remembered, has a limited purpose and cannot be allowed to be 'an appeal in disguise'. [Vide: Aribam Tuleshwar Sharma v. Aribam Pishak Sharma, AIR 1979 SC 1047; Satyanarayan Laxminarayan Hegde v. Millikarjun Bhavanappa Tirumale, AIR 1960 SC 137, and Parsion Devi v. Sumitri Devi, (1997) 8 SCC 715].

14. Again, the Supreme Court in Lily Thomas vs. Union of India, (2000) 6 SC 224, held that power of review could be exercised to correct a mistake but not to substitute a view. Such powers could be exercised within limits of statute dealing with exercise of power. It was further observed that the words "any other sufficient reason" appearing in Order XLVII Rule 1 CPC must mean "a reason sufficient on grounds at least analogous to those specified in the rule" as was held in Chhajju Ram vs. Neki, AIR 1922 PC 112 and Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius, AIR 1954 SC 526.

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15. Section 114, CPC, provides for a substantive power of review by a civil court and consequently by appellate courts. Section 114 envisions:

"114. Review. --Subject as aforesaid, any person considering himself aggrieved, --

(a) by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred,

(b) by a decree or order from which no appeal is allowed by this Code,

(c) by a decision on a reference from a Court of Small cause, may apply for a review of judgment to the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit."

16. The words "subject as aforesaid" occurring in Section 114 of the Code mean subject to such conditions and limitations as may be prescribed as appearing in Section 113 thereof and for the said purpose, the procedural conditions contained in Order XLVII of the Code must be taken into consideration. Section 114 of the Code although does not prescribe any limitation on the power of the court but such limitations have been provided for in Order XLVII Rule 1 CPC.

17. Power of review can be exercised for correction of a mistake but not to substitute a view. Such powers can be exercised within the limits of statute dealing with the exercise of power. The review cannot be treated like an appeal in disguise. It cannot be denied that the review is the creation of a statute. In the case of Patel Narshi Thakershi v. Pradyumansinghji Arjunsinghji, (1971) 3 SCC 844, the Supreme Court has held that power of review is not an inherent power. It must be conferred by law either specifically or by necessary implication. The review is also not an appeal in disguise. It is essential that it should be something more than a mere error; it must be one which must be manifest on the face of the record. The real difficulty with reference to this matter, however, is not so much in the statement of the principle as in its application to the facts of a particular case. When does an error cease to be mere error, and become an error apparent on the face of the record? Learned counsel on either side were unable to suggest any clear-cut rule by which the boundary between the two classes of errors could be demarcated. The term "mistake or error apparent" by its very connotation signifies an error which is evident per se from the record

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of the case and does not require detailed examination, scrutiny and elucidation either of facts or legal position. If an error is not obvious and detection thereof requires long debate and process of reasoning, it cannot be treated as an error apparent on the face of the record for the purpose of Order XLVII Rule 1 CPC. To put it differently, an order or decision or judgment cannot be corrected merely because it is erroneous in law or on the ground that a different view could have been taken by the court on a point of fact or law. In any case, while exercising the power of review, the court concerned cannot sit in appeal over its judgment/decision. [See: Inderchand Jain vs. Motilal, (2009) 14 SCC 663; T.C. Basappa vs. T.Nagappa, AIR 1954 SC 440; Hari Vishnu Kamath vs. Ahmad Ishaque, AIR 1955 SC 233; Thungabhadra Industries Ltd. v. Govt. of A.P., AIR 1964 SC 1372; Meera Bhanja v. Nirmala Kumari Choudhury, (1995) 1 SCC 170; State of West Bengal and Others vs. Kamal Sengupta and Anr., (2008) 8 SCC 612; Rajah Kotagiri Venkata Subbamma Rao v. Rajah Vellanki Venkatrama Rao (18991900) 27 IA 197; Hari Sankar Pal v. Anath Nath Mitter, 1949 FCR 36; K. Ajit Babu v. Union of India, (1997) 6 SCC 473; Ajit Kumar Rath v. State of Orissa, (1999) 9 SCC 596 and Gopal Singh v. State Cadre Forest Officers' Assn., (2007) 9 SCC 369 ].

18. The Supreme Court in Ram Sahu (Dead) through LRs and others v. Vinod Kumar Rawat and others, 2020 SCC OnLine SC 896 , after discussing slew of judgements on the subject of review, has held that an application for review is more restricted than that of an appeal and the Court of review has limited jurisdiction as to the definite limit mentioned in Order XLVII Rule 1 CPC itself. The powers of review cannot be exercised as an inherent power nor can an appellate power be exercised in the guise of power of review. After holding this, the Supreme court found that High Court overstepped jurisdiction vested in the Court under Order XLVII Rule 1 CPC.

19. In the background of above well-settled legal position, all that has been argued by learned counsel for applicants/review petitioner is that this Court should re-open the findings recorded in the judgement under

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review. It is made clear here that review jurisdiction cannot be used for that purpose. This is not the scope of Section 114 read with Order XLVII Rule 1 CPC. After having an overall view of the grounds taken in the application and submissions made by learned counsel for review petitioners, there is no error apparent on the face of record warranting review of judgement dated 28th May 2021. In such circumstances, review petition on hand is liable to be dismissed.

20. For the reasons discussed above, I do not find any merit in the instant petition seeking review of judgement dated 28th May 2021 and the same is, accordingly, dismissed.

(Vinod Chatterji Koul) Judge Srinagar 25.08.2021 Ajaz Ahmad, PS Whether the order is reportable: Yes/No.