Saleem Altaf Lone vs Rohit Kansal & Others
2021 Latest Caselaw 1595 j&K/2

         IN THE HIGH COURT OF JAMMU AND KASHMIR
                       AT SRINAGAR


                                                  Reserved on: 09.12.2021
                                                  Pronounced on: 10.12.2021


                               RP No.17/2020


Saleem Altaf Lone                                           ... Petitioner(s)

                    Through: - Mr. M. S. Reshi, Advocate

      V/s

Rohit Kansal & others                                     ...Respondent(s)

                    Through: - Mr. Sheikh Feroz, Dy. AG.

CORAM:       HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE


                                   JUDGMENT

1) The petitioner seeks review of the judgment dated 18.02.2020

passed by this Court in SWP No.579/2017, whereby this Court, while

disposing of the writ petition provided that if the petitioner, on the date of

filing of the application, was in position and his case was covered under

SRO 520 of 2017, the same shall be considered by the respondents

accordingly. This Court further provided that till the case of the petitioner

was considered, the status of the petitioner as it existed on the date of

passing of the judgment would be maintained.

2) The grievance projected by the petitioner in this petition is that the

petitioner had placed on record enough material on the basis of which this

Court could have given a definite finding with regard to continuation of

the petitioner in engagement on the date of filing of the petition as also on

the date the writ petition was disposed of.

3) Learned counsel for the petitioner, Mr. Reshi, vehemently

contended that having regard to the documents on record, it was evident

that the petitioner was in service on the date of filing of the petition as also

on the date of disposal of the petition. He, therefore, submits that this

Court by terming the continuation of the petitioner in service as a disputed

question of fact has committed a serious error apparent on face of record

and, therefore, judgment deserves to be reviewed.

4) Heard learned counsel for the parties and perused the material on

record.

5) Before proceeding to consider the contentions raised by

the review petitioner, it is necessary to notice the legal

position as regards the scope of review of the

order/judgment passed by the High Court in the exercise of

its writ jurisdiction.

6) Though the provisions of Code of Civil Procedure, 1908,

as these are, may not be applicable to writ proceedings (See

Section 141 of CPC) yet the principles laid down in Section

114 read with Order XLVII Rule 1 of the Code may serve as

a guide to the expression of review power by the

Constitutional Court. The review powers inhere in the High

Court being a Court of record. Hon'ble Supreme Court in its

Constitution Bench judgement rendered in Shivdeo Singh

vs. State of Punjab, AIR 1963 SC 1909, held thus:

"It is sufficient to say that there is nothing in Art. 226 of the Constitution to preclude a 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."

7) In M. M. Thomas vs. State of Kerala, (2000) 1 SCC 666, Supreme

Court had the occasion to consider this question at some length. What was

held in para 14 and 17 is noteworthy and is reproduced hereunder:

14. The High Court as a Court of Record, as envisaged in Article 215 of the Constitution, must have inherent powers to correct the records. A Court of Record envelopes all such powers whose acts and proceedings are to be enrolled in a perpetual, memorial and testimony. A Court of Record is undoubtedly a superior court which is itself competent to determine the scope of its jurisdiction. The High Court, as a Court of Record, has a duty to itself to keep all its records correctly and in accordance with law. Hence, if any apparent error is noticed by the High Court in respect of any orders passed by it the High Court has not only power, but a duty to correct it. The High Court's power in that regard is plenary. In Naresh Shridhar Mirajkar & Ors. v. State of Maharashtra & Anr, a nine Judge Bench of this Court has recognized the aforesaid superior status of the High Court as a court of plenary jurisdiction being a Court of Record."

17. If such power of correcting its own record is denied to the High Court, when it notices the apparent errors its consequence is that the superior status of the High Court will dwindle down, Therefore, it is only proper to think that the plenary powers of the High Court would include the power of review relating to errors apparent on the face of record."

8) The Apex Court has also reiterated this view in the recent judgment

of Municipal Corporation of Greater Mumbai and another v. Pratibha

Industries Limited, (2019) 3 SCC 203.

9) Aside that, under Article 226 of the Constitution, High Court

exercises extraordinary jurisdiction, which jurisdiction cannot be

circumscribed or curtailed even by an Act of Legislature. Inherent in this

extraordinary jurisdiction is power to correct errors of fact and law

apparent on face of record. Rule 65 of the J&K High Court Rules, 1999,

adopting applicability of Order XLVII Rule 1 of the Code of Civil

Procedure only regulates such power of review which inheres in every

superior court of law including one exercising extraordinary writ

jurisdiction under Article 226 of the Constitution.

10) Rule 65 of the Jammu and Kashmir High Court Rules,

1999 deals with power of the High Court with regard to the

review of a judgment. It reads as under:

"65. Application for review of judgment- The Court may review its judgment or order but no application for review shall be entertained except on the ground mentioned in order XLVII Rule 1 of the Code."

11) From a perusal of the aforesaid provision, it is clear

that a plea for review of a judgment can be entertained only

on the grounds mentioned in Order XLVII Rule 1 of the Code

of Civil Procedure(CPC). Here it would be apt to quote the

provisions contained in Order XLVII Rule 1 of the CPC, which

read 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 an 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 to the court which passed the decree or made the order.

(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the appellate court the case on which he applies for the review.

[Explanation:- The fact that the decision on a question of law on which the judgment of the court is based has been reversed or modified by the subsequent decision of a superior court in any other case, shall not be a ground for review of such judgment.] "

12) From a perusal of the aforesaid provision, it is clear

that review of a judgment can be made on the following

grounds:

(i) if it is shown by the aggrieved person that a new and important matter and evidence which, after exercise of due diligence, was not within his

knowledge or could not be produced by him, has been discovered.

(ii) if there is some mistake or error apparent on the face of record and

(iii) for any other sufficient reason.

The expression "for any sufficient reason" has been

interpreted by the Courts to mean for a reason analogous to

the first two reasons.

13) The Supreme Court in Parsion Devi & Ors vs. Sumitri Devi & Ors.

reported in 1997 Suppl. (4) SCR 470, observed as under

"Under Order 47 Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which 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 the record justifying the court to exercise its power review under Order 47 Rule 1 CPC. In exercise of the jurisdiction under Order 47 Rule 1 CPC it is not permissible for an erroneous decision to be "reheard and corrected". A review petition, it must be remembered has limited purpose and cannot be allowed to be "an appeal in disguise."

14) Recently, the Supreme Court in the case of Shri Ram Sahu v. Vinod

Kumar Rawat, 2020 SCC Online 896, after surveying case law on the

subject culled out following principles:

(i) The power of the Tribunal to review its order/decision under Section 22(3)(f) of the Act is akin/analogous to the power of a civil court under Section 114 read with Order 47 Rule 1 CPC.

(ii) The Tribunal can review its decision on either of the grounds enumerated in Order 47 Rule 1 and not otherwise.

(iii) The expression "any other sufficient reason"

appearing in Order 47 Rule 1 has to be interpreted in the light of other specified grounds.

(iv) An error which is not self-evident and which can be discovered by a long process of reasoning, cannot be treated as an error apparent on the face of record justifying exercise of power under Section 22(3)(f).

(v) An erroneous order/decision cannot be corrected in the guise of exercise of power of review.

(vi) A decision/order cannot be reviewed under Section 22(3)(f) on the basis of subsequent decision/judgment of a coordinate or larger Bench of the tribunal or of a superior court.

(vii) While considering an application for review, the tribunal must confine its adjudication with reference to material which was available at the time of initial decision. The happening of some subsequent event or development cannot be taken note of for declaring the initial order/decision as vitiated by an error apparent.

(viii) Mere discovery of new or important matter or evidence is not sufficient ground for review. The party seeking review has also to show that such matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the court/tribunal earlier."

The Hon'ble Supreme Court concluded thus:

"To appreciate the scope of review, it would be proper for this Court to discuss the object and ambit of Section 114 CPC as the same is a substantive provision for review when a person considering himself aggrieved either by a decree or by an order of Court from which appeal is allowed but no appeal is preferred or where there is no provision for appeal against an order and decree, may apply for review of the decree or order as the case may be in the Court, which may order or pass the decree. From the bare reading of Section 114 CPC, it appears that the said substantive power of review under Section 114 CPC has not laid down any condition as the condition precedent in exercise of power of review nor the said Section imposed any prohibition on the Court for exercising its power to review its decision. However, an order can be reviewed by a Court only on the

prescribed grounds mentioned in Order 47 Rule 1 CPC, which has been elaborately discussed hereinabove. 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 47 Rule 1 CPC itself. The powers of review cannot be exercised as an inherent power nor can an appellate power can be exercised in the guise of power of review."

15) I am aware that by framing High Court Rules vide High Court of

Jammu and Kashmir Notification No.39 dated 22.04.1999, High Court

cannot arrogate to itself powers which it otherwise lacks. However, the

principles of Code of Civil Procedure as far as it is practicable to apply,

may regulate writ proceedings. As said above, principles embodied in

Order XLVII Rule of CPC may serve as a guide to the exercise of review

jurisdiction by Constitutional Court and cannot constrict the otherwise

wide jurisdiction to review its order by a court of plenary jurisdiction

being a court of record.

16) From the above legal position, it is clear that this Court in review

jurisdiction cannot rehear the matter and take a view different from the

one it has taken while disposing of the matter in terms of the judgment

sought to be reviewed. I have gone through the documents on record and

I am of the considered view that there is no definite evidence placed on

record which would demonstratively prove that the petitioner was in

service of the respondents either on the date of filing of the petition or at

the time of disposal of the writ petition. The respondents, in their

objections, have categorically disputed his existence in the department on

the date of filing of the petition.

17) Be that as it may, this Court in judgment dated 18.02.2020 has very

clearly directed the respondents to maintain status of the petitioner as it

existed on the date of disposal of the writ petition. The petitioner, if he is

in possession of the evidence and is otherwise working with the

respondents, the judgment sought to be reviewed, takes care of the same.

the petitioner, as a matter of fact, is seeking the rehearing of the petition

which is not permissible. As noted above, the review can only be asked

for when there is an error apparent on the face of record or there is

discovery of new facts after the disposal of the writ petition and which

have bearing on the controversy or there is some serious miscarriage of

justice. None of the aforesaid aspects could be demonstrated by the

learned counsel for the petitioner.

18) For the foregoing reasons, I do not find any merit in this petition

and the same is, accordingly, dismissed.

(Sanjeev Kumar) Judge

Srinagar 10.12.2021 "Bhat Altaf, PS"

                                         Whether the order is speaking:        Yes/No
                                         Whether the order is reportable:      Yes/No




MOHAMMAD ALTAF BHAT
2021.12.14 13:19
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integrity of this document