Jammu & Kashmir High Court - Srinagar Bench
Ali Mohammad Dar vs Chairman J&K Grameen Bank And Anr on 3 February, 2021
Serial No. 201
Daily Supply. List-1
HIGH COURT OF JAMMU AND JAMMU
AT JAMMU
(Through Virtual Mode)
RPLPA No.03/2017
Ali Mohammad Dar
..... Petitioner(s)
Through: -
Mr. Hakim Suhail Ishtiyaq, Advocate
V/s
Chairman J&K Grameen Bank and Anr.
..... Respondent(s)
Through: -
Mr. Shakir Haqani, Advocate
CORAM:
Hon'ble Mr Justice Ali Mohammad Magrey, Judge.
Hon'ble Mr Justice Puneet Gupta, Judge
(ORDER)
03.02.2021
Per Magrey, J;
01. The petitioner/ appellant, by medium of this review petition, is
seeking review of judgment dated 05.04.2017, passed in LPA No.
25/2017, whereby and whereunder the appeal of the appellant/ review
petitioner herein stands dismissed, operative portion whereof reads as
under:
"In the circumstances, we do not find any case
for interfering with the judgment of the learned
Writ Court on account of delay in invoking the
extraordinary jurisdiction of the High Court
under Article 226 of the Constitution of India as
well as the Constitution of the State of J&K, on
account of the appellant being aware of his
resignation having been accepted in the year
2012 (as evident from Annexure B of the writ
petition) and the story as projected in the writ
petition not inspiring confidence particularly in
the light of no complaint whatsoever having been
made by the appellant during a span of 12 years
right from the year 2000 till his resignation on
51h March, 2012 of the appellant being under
constant threat, besides the resignation letter not
having been placed on record for reasons best
known to the appellant and the resignation as per
the objections filed having been tendered by the
appellant on account of wanting to look after his
ailing mother and family whereas projection in the
writ petition as well as in the appeal is of the
appellant having been forced to resign on account
of threat to life and liberty to his son / family /
himself from unidentified gunmen/militants as also
on account of the writ petition being hit by delay
and laches."
02. The review petitioner/ appellant is seeking the review of
judgment aforesaid, inter alia, on the following grounds:
(a) That the LPA has been dismissed mainly on the
ground that the Petitioner had approached this
Hon'ble Court after a delay of 4 years and no
explanation for the same had been given. in para 10
of the judgment, the Hon'ble Division Bench has
itself stated the admittedly the appellant left the
State in April, 2012 went to Delhi, stayed there till
2015 where after he sought to return to the state of
J&K but before coming back sought the intervention
of the Home Minister, Government of India for
rehabilitation and for being allowed to rejoin duty.
it is submitted that this fact is in itself the
explanation for delay in approaching this Hon'ble
Court. The Petitioner was never informed about the
acceptance of his resignation so as to enable him to
challenge the same within time. The communication
dated 04.07.2012 annexed by the Respondents with
their reply has an hand written endorsement "Regd"
on it giving an impression that the same was sent by
registered post: Mere endorsement is not a proof of
delivery or even service. Even if for the sake of
arguments, it is presumed that the acceptance was
conveyed to the petitioner:, still the petitioner was
forced to remain away from the valley due the
volatile situation in the valley and as soon as the
situation normalised, he returned back, approached
the Respondents and thereafter approached this
Hon'ble Court. Therefore, even if there had been any
delay, the same was not intentional and deliberate
and the reason for the same stands explained
satisfactorily in the writ petition.
(b) That the learned writ court in its judgment dated
30.01.2017 observed that the Petitioner had not filed
any rejoinder to rebut the averments made in the
reply and the same was upheld by the Learned
Division Bench stating that there is a signature of
the clerk of the Counsel for the Petitioner. It is
pertinent to mention here that no copy of the reply
was provided to the Petitioner or his counsel and the
same is evident from the reply filed as the same
bears only date and no signature or name as to who
or on whose behalf the same was accepted as per the
procedure in vogue while filing reply.
(C)That the Hon'ble Division Bench has observed
that as per the pleadings of the Petitioner, the threat
started in the year 2000 and the Petitioner fled away
in 2012, i.e. after 12 years does not inspire
confidence and also nothing had been placed on
record to show whether any complaint was filed by
the petitioner. in reply thereto, with respects, it is
submitted that incidents of threat had been many over
a period of time and they were for money only. It was
only in 2012 that the unidentified gunmen/militants
made a demand for son of the Petitioner. Fear of the
safety of his family made the Petitioner to resign from
his service and flee away from the valley.
It is further submitted that as is clear from threat
letter of 2012 that the militants had threatened the
Petitioner not to resort to excuses or make any other
attempts failing which they would be forced to take
extreme measures as had been done in case of his
family members earlier. This clearly shows that the
direct threat to Petitioner's family was first made in
2012 and immediately thereafter the petitioner fled
the valley.
(d) That the threat letters placed on record along with
the present review petition as Annexure Ri had not
been brought to the not2the Learned Writ Court or
the Learned Division Bench. It is a settled law that
the power of review may be exercised on the
discovery of new and important matter of evidence
which, after the exercise of due diligence was not
within the 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 merit.
It is submitted that the incidents of threat which had
been faced by the Petitioner had left a deep
psychological impact on his psyche and he was in a
constant state of fear so as to bring to light these
documents as he feared that the same might again
lead to an untoward incident. However, the present
situation of the Petitioner is such that in case he does
not get his job back, there are definite chances that
the same could lead to starvation oldie Petitioner
and his family and the same would therefore prove
fatal for him and his family as he has no source of
income and also for the reason of being 52 years old
cannot be taken into any other service. This time
again the care and fear for his and his family's life
has made him to bring to the notice of this Hon'ble
Court these above referred documents.
It is submitted that it was due to the threat which the
Petitioner felt to his and his family's life that he
could not produce the documents at the appropriate
time.
03. We have heard the learned counsel for the review petitioner,
considered the matter and perused the documents placed on record.
04. What requires to be stated, at the outset, is that in the instant
review petition, the review petitioner/appellant has 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 this Court and, if
the review petitioner/ appellant was aggrieved of the said findings, he
ought to have availed the remedy under law for challenging the same
before 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 petitioner/ appellant 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
against the said judgment before the appropriate forum. Such grounds
do not constitute errors of fact or of law on the face of the record as
would call for a review.
05. 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, cannot be assailed in a review petition, unless
it is shown that there is an error apparent on the face of the record. The
power of review has to be exercised with extreme care, caution and
circumspection, that too, only in exceptional cases.
06. 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 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. 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.
-----------------
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 or rights created under any other
statute, can take a different view notwithstanding
the earlier judgment.
----------------
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
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:
"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."
07. 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, one of us (Magrey, J)
is 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 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."
08. 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 petitioner/appellant has
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 petitioner/ appellant is challenging the order passed by this
Court, which is under review. The law, as cited by the learned counsel
for the review petitioner/ appellant, is not applicable to the facts and
circumstances of the case on hand.
09. In the above background coupled with the law discussed
hereinabove, we do not find any error, apparent on the face of the
record, in the judgment dated 05.04.2017, passed by this Court in LPA
No. 25/2017, as would warrant its recall on review. It being so, this
review petition is found to be without any merit, as a sequel thereto,
same shall stand dismissed.
(Puneet Gupta) (Ali Mohammad Magrey)
Judge Judge
JAMMU
February 3rd, 2021
"Mohammad Yasin Dar"
MOHAMMAD YASIN DAR
2021.02.03 12:16
I attest to the accuracy and
integrity of this document
