Jammu & Kashmir High Court - Srinagar Bench

Dated: 19Th Of February vs State Of Jk & Ors on 19 February, 2021

Serial No. 211
After Notice List

HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
CM No.5005/2019 in
RP No.45/2019

Dated: 19th of February, 2021.
Mehraj-ud-Din

..... Petitioner(s)
Through: -
Mr Z. A. Qurashi, Senior Advocate with
Ms Rehana Fayaz, Advocate.

V/s
State of JK & Ors.
..... Respondent(s)
Through: -
Mr Shah Aamir, AAG.
CORAM:
Hon'ble Mr Justice Ali Mohammad Magrey, Judge
(JUDGMENT)
CM No.5005/2019:

Mr Shah Aamir, AAG for the applicants/ respondents.
Mr Z. A. Qurashi, Senior Advocate with Ms Rehana Fayaz, Advocate for the non-applicant/ petitioner.

01. For the reasons stated in the application, coupled with

submissions made at the Bar, the instant application is allowed and the delay

that has occasioned in the filing of the accompanying review petition is

condoned.

02. CM disposed of as above.

RP No.45/2019:

Mr Shah Aamir, AAG for the applicants/ respondents.
Mr Z. A. Qurashi, Senior Advocate with Ms Rehana Fayaz, Advocate for the non-applicant/ petitioner.

03. By this review petition, the review petitioners/ respondents in the

main petition are seeking review of final judgment of this Court dated 25th of

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April, 2018, passed in SWP No. 885/2018, whereby the petition of the Writ

petitioner has been allowed.

04. Heard the learned counsel for the parties, perused the pleadings

on record and considered the matter.

05. What requires to be stated, at the outset, is that in the instant

review petition, the review petitioners have touched the merits of the case,

which, in a review petition, is unwarranted as per well settled position of law.

The grounds urged in the review petition have already been decided and

findings returned thereon by the Court and, if the review petitioners were

aggrieved of the said findings, they ought to have availed the remedy under

law for challenging the same in the appropriate Court. In fact, the instant

review petition, on grounds enumerated therein, appears to be a disguised

appeal. The grounds taken by the review petitioners are either that the findings

recorded by the Court are not legally tenable, or that the same are perverse, or

that the same are unacceptable. A judgment may be wrong, erroneous,

incorrect, perverse, legally untenable, etc. etc., but, the only course available

for the aggrieved party is to go in appeal the said judgment. Such grounds do

not constitute errors of fact or of law on the face of the record as would call

for a review.

06. A review cannot also be used as a tool for changing the opinion/

view of the Court. In a review petition, it is only an error, apparent on the face

of the record, which can be considered and gone into by the Court. It is not

open to the Court, dealing with review of its decision, to re-appreciate the

evidence and reach a different conclusion, even if that is possible. Conclusion

arrived at, on appreciation of evidence and after hearing the rival parties,

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cannot be assailed in a review petition, unless it is shown that there is an error

apparent on the face of the record. So far as the grievance of the review

petitioners on merits of the case is concerned, virtually the review petitioners

seek the same relief which they had sought at the time of arguing the main

matter and had been negatived. Once such a prayer has been refused, no

review petition would lie which would convert re-hearing of the original

matter. It is well settled law that the power of review cannot be confused with

appellate power which enables a superior Court to correct all errors committed

by a subordinate Court. It is not re-hearing of an original matter. A repetition

of old and overruled argument is not enough to reopen concluded

adjudications. The power of review has to be exercised with extreme care,

caution and circumspection, that too, only in exceptional cases.

07. Law on the subject is no more res integra. The Apex Court of the

country, in case titled 'Kamlesh Verma v. Mayawati & Ors.' reported in

'(2013) 8 Supreme Court Cases 320', while dealing with a similar issue, at

paragraph Nos. 13, 15 to 19, laid down as under:

"13. Review of the earlier order cannot be done unless the
court is satisfied that material error, manifest on the face of the
order, undermines its soundness or results in miscarriage of
justice. This Court, in Col. Avtar Singh Sekhon v. Union of India
& Ors. [1980 (Supp) SCC 562], held as under:

"12. A review is not a routine procedure. Here
we resolved to hear Shri Kapil at length to remove any
feeling that the party has been hurt without being heard.
But we cannot review our earlier order unless satisfied
that material error, manifest on the face of the order,
undermines its soundness or results in miscarriage of
justice. In Sow Chandra Kante v. Sheikh Habib this
Court observed:

"1. .... A review of a judgment is a serious step
and reluctant resort to it is proper only where a
glaring omission or patent mistake or like grave error
has crept in earlier by judicial fallibility.... The
present stage is not a virgin ground but review of an

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earlier order which has the normal feature of
finality."

14.--------------

15. 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 of review. A review is by no means an appeal in disguise
whereby an erroneous decision is re-heard and corrected, but lies
only for patent error. This Court, in Parsion Devi & Ors. v.
Sumitri Devi & Ors., [JT 1997 (8) SC 480: (1997) 8 SCC 715],
held as under:

"7. It is well settled that review proceedings have
to be strictly confined to the ambit and scope of Order
47 Rule 1 CPC. In Thungabhadra Industries Ltd. v.
Govt. of A.P. this Court opined:

"11. What, however, we are now concerned with
is whether the statement in the order of September
1959 that the case did not involve any substantial
question of law is an 'error apparent on the face of the
record'. The fact that on the earlier occasion the Court
held on an identical state of facts that a substantial
question of law arose would not per se be conclusive,
for the earlier order itself might be erroneous.
Similarly, even if the statement was wrong, it would
not follow that it was an 'error apparent on the face of
the record', for there is a distinction which is real,
though it might not always be capable of exposition,
between a mere erroneous decision and a decision
which could be characterized as vitiated by 'error
apparent'. A review is by no means an appeal in
disguise whereby an erroneous decision is reheard
and corrected, but lies only for patent error.

8. Again, in Meera Bhanja v. Nirmala Kumari
Choudhury while quoting with approval a passage
from Aribam Tuleshwar Sharma v. Aribam Pishak
Sharma this Court once again held that 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.

9. 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 of 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 a limited purpose
and cannot be allowed to be 'an appeal in disguise."

16. Error contemplated under the rule must be such which
is apparent on the face of the record and not an error which has
to be fished out and searched. It must be an error of inadvertence.
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The power of review can be exercised for correction of a mistake
but not to substitute a view. The mere possibility of two views on
the subject is not a ground for review. This Court, in Lily Thomas
& Ors. v. Union of India & Ors., [(2000) 6 SCC 224], held as
under:

"54. Article 137 empowers this Court to review
its judgments subject to the provisions of any law made
by Parliament or any rules made under Article 145 of
the Constitution. The Supreme Court Rules made in
exercise of the powers under Article 145 of the
Constitution prescribe that in civil cases, review lies on
any of the grounds specified in Order 47 Rule 1 of the
Code of Civil Procedure which provides:

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 to the court which passed the decree
or made the order.'

Under Order 40 Rule 1 of the Supreme Court
Rules no review lies except on the ground of error
apparent on the face of the record in criminal cases.
Order XL Rule 5 of the Supreme Court Rules provides
that after an application for review has been disposed of
no further application shall be entertained in the same
matter.
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56. It follows, therefore, that the 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 the statute dealing with the exercise of power. The review cannot be treated like an appeal in disguise. The mere possibility of two views on the subject is not a ground for review. Once a review petition is dismissed no further petition of review can be entertained. The rule of law of following the practice of the binding nature of the larger Benches and not taking different views by the Benches of coordinated jurisdiction of equal strength has to be followed and practised. However, this Court in exercise of its powers under Article 136 or Article 32 of the Constitution and upon satisfaction that the earlier judgments have resulted in deprivation of fundamental rights of a citizen TAHIR MANZOOR BHAT 2021.02.19 13:15 I attest to the accuracy and integrity of this document

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or rights created under any other statute, can take a different view notwithstanding the earlier judgment.

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58. Otherwise also no ground as envisaged under Order XL of the Supreme Court Rules read with Order 47 of the Code of Civil Procedure has been pleaded in the review petition or canvassed before us using the arguments for the purposes of reviewing the judgment in Sarla Mudgal case, [JT 1995 (4) SC 331] It is not the case of the petitioners that they have discovered any new and important matter which after the exercise of due diligence was not within their knowledge or could not be brought to the notice of the Court at the time of passing of the judgment. All pleas raised before us were in fact addressed for and on behalf of the petitioners before the Bench which, after considering those pleas, passed the judgment in Sarla Mudgal case. We have also not found any mistake or error apparent on the face of the record requiring a review. Error contemplated under the rule must be such which is apparent on the face of the record and not an error which has to be fished out and searched. It must be an error of inadvertence. No such error has been pointed out by the learned counsel appearing for the parties seeking review of the judgment. The only arguments advanced were that the judgment interpreting Section 494 amounted to violation of some of the fundamental rights. No other sufficient cause has been shown for reviewing the judgment. The words 'any other sufficient reason appearing in Order 47 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 v. Neki, [AIR 1922 PC 112] and approved by this Court in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius, [AIR 1954 SC 526] Error apparent on the face of the proceedings is an error which is based on clear ignorance or disregard of the provisions of law. In T.C. Basappa v. T. Nagappa, [AIR 1954 SC 440] this Court held that such error is an error which is a patent error and not a mere wrong decision. In Hari Vishnu Kamath v. Ahmad Ishaque [AIR 1955 SC 233], it was held:

"23. .... 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.

Mr. Pathak for the first respondent contended on the strength of certain observations of Chagla, C.J. in - 'Batuk K. Vyas v. Surat Borough Municipality, [AIR 1953 Bom 133′] that no error could be said to TAHIR MANZOOR BHAT 2021.02.19 13:15 I attest to the accuracy and integrity of this document

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be apparent on the face of the record if it was not self- evident and if it required an examination or argument to establish it. This test might afford a satisfactory basis for decision in the majority of cases. But there must be cases in which even this test might break down, because judicial opinions also differ, and an error that might be considered by one Judge as self- evident might not be so considered by another. The fact is that what is an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case.'

Therefore, it can safely be held that the petitioners have not made out any case within the meaning of Article 137 read with Order XL of the Supreme Court Rules and Order 47 Rule 1 CPC for reviewing the judgment in Sarla Mudgal case. The petition is misconceived and bereft of any substance."

17. In a review petition, it is not open to the Court to re- appreciate the evidence and reach a different conclusion, even if that is possible. Conclusion arrived at on appreciation of evidence cannot be assailed in a review petition unless it is shown that there is an error apparent on the face of the record or for some reason akin thereto. This Court, in Kerala State Electricity Board v. Hitech Electrothermics & Hydropower Ltd. & Ors., [JT 2005 (7) SC 485], held as under:

"10. .........In a review petition it is not open to this Court to re-appreciate the evidence and reach a different conclusion, even if that is possible. Learned counsel for the Board at best sought to impress us that the correspondence exchanged between the parties did not support the conclusion reached by this Court. We are afraid such a submission cannot be permitted to be advanced in a review petition. The appreciation of evidence on record is fully within the domain of the appellate court. If on appreciation of the evidence produced, the court records a finding of fact and reaches a conclusion, that conclusion cannot be assailed in a review petition unless it is shown that there is an error apparent on the face of the record or for some reason akin thereto. It has not been contended before us that there is any error apparent on the face of the record. To permit the review petitioner to argue on a question of appreciation of evidence would amount to converting a review petition into an appeal in disguise."

18. Review is not re-hearing of an original matter. The power of review cannot be confused with appellate power which enables a superior court to correct all errors committed by a subordinate court. A repetition of old and overruled argument is not enough to re-open concluded adjudications. This Court, in Jain Studios Ltd. v. Shin Satellite Public Co. Ltd., [JT 2006 (7) SC 40: (2006) 5 SCC 501], held as under:

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"11. So far as the grievance of the applicant on merits is concerned, the learned counsel for the opponent is right in submitting that virtually the applicant seeks the same relief which had been sought at the time of arguing the main matter and had been negatived. Once such a prayer had been refused, no review petition would lie which would convert rehearing of the original matter. It is settled law that the power of review cannot be confused with appellate power which enables a superior court to correct all errors committed by a subordinate court. It is not rehearing of an original matter. A repetition of old and overruled argument is not enough to reopen concluded adjudications. The power of review can be exercised with extreme care, caution and circumspection and only in exceptional cases.

12. When a prayer to appoint an arbitrator by the applicant herein had been made at the time when the arbitration petition was heard and was rejected, the same relief cannot be sought by an indirect method by filing a review petition. Such petition, in my opinion, is in the nature of 'second innings' which is impermissible and unwarranted and cannot be granted."

19. Review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order XLVII Rule 1 of CPC. In review jurisdiction, mere disagreement with the view of the judgment cannot be the ground for invoking the same. As long as the point is already dealt with and answered, the parties are not entitled to challenge the impugned judgment in the guise that an alternative view is possible under the review jurisdiction."

08. A cue can, in this behalf, be also had from the decision rendered

by a Division Bench of this High Court in the case of 'State of JK & Ors. vs.

Govt. Handloom Silk Weaving Factory & Ors.', reported in '2016 (2) JKJ

795(HC)', of which, incidentally, I am the author, wherein, it has been held

as follows:

"13. At the very outset it needs to be kept in mind that review jurisdiction of the Court is limited. It is settled law that it is only an error apparent on the face of the record which can be considered and one into by the Court. In the present review petition, the grounds of facts of law urged in review petitions, as narrated above, including the submissions made at the Bar by the learned Counsels appearing in these review Petitions, which in content and substance were the same as taken in the respective review petitions, cannot in any manner be considered as errors on the face of record. Instead the grounds sought to be raised and urged may constitute grounds of appeal alone. In fact, the instant review petitions on grounds enumerated herein appear to be TAHIR MANZOOR BHAT 2021.02.19 13:15 I attest to the accuracy and integrity of this document

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disguised Second Appeals. As noticed above, the grounds taken by the review petitioners are either that the findings recorded by the Court are not legally tenable, or that the same are perverse, or that the same are unacceptable. A judgment may be wrong, erroneous incorrect, perverse, legally untenable, etc. etc., the only course available for the aggrieved party is to go in appeal. Such grounds do not constitute errors of fact or of law on the face of the record as would call for a review."

09. From a bare perusal of the law laid down above, it is manifestly

clear that the scope of review is very limited. The power of review is exercised

when some mistake or error, apparent on the face of the record, is found. A

mistake or an error, apparent on the face of the record, means a mistake or an

error which is, prima facie, visible and does not require any detailed

examination. Such an error must strike one on mere looking at the record and

should not require any long-drawn process of reasoning on the points where

there may, conceivably, be two opinions. In the present case, the review

petitioners have not been able to point out any error, apparent on the face of

the record, but, on the contrary, under the guise of the instant review petition,

the review petitioners are challenging the order passed by this Court, which is

under review.