Reserved On: 19.04.202 vs Chuni Lal And Others
2021 Latest Caselaw 641 j&K/2

              HIGH COURT OF JAMMU AND KASHMIR
                        AT SRINAGAR
                              ...
                        CM no.776/2021
                         RP no.11/2021

                                                    Reserved on: 19.04.2021
                                               Pronounced on: 22.06.2021
Union Territory of J&K and others
                                                          .........Petitioner(s)

                                     Through: Mr B.A.Dar, Sr. AAG

                                    Versus

Chuni Lal and others
                                                       .........Respondent(s)

                                     Through: Mr I. Sofi, Advocate

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

                               JUDGEMENT

1. Review of judgement and order dated 23rd August 2017, passed by this

Court in COD no.165/2017, titled State of J&K and others v. Chuni Lal

and others, is sought for in concomitant Petition (RP no.11/2021).

Since Review Petition has been filed after expiry of prescribed limit,

instant application, thus, has been filed beseeching condoning of delay.

Therefore, application, CM no.776/2021, seeking condoning of delay

is to be considered and decided, and only thereafter Review Petition

would be taken up for consideration.

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 applicants/petitioners. Genesis of case relates to

acquisition of land in village Khirman Hanood, Handwara, for

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construction of District Horticulture Complex, Handwara. Reference

under Section 18 of Land Acquisition Act was made as landholders

questioned Award of Collector, Assistant Commissioner, Handwara, to

the Principal District Judge, Baramulla (for brevity "Trial Court"). On

Reference, the Trial Court vide judgement/order dated 20th May 2016

directed the department to pay Rs.7.00 Lakhs per Kanal plus jabrana @

15% together with interest @ 7& per annum on the enhanced amount

per kanal from the date of possession of the acquired land. Appeal was

preferred before this Court. However, since there had been delay of 01

year and 06 days, condonation of delay was sought. Application, being

COD no.165/2017, had been preferred by applicants/petitioners. This

Court by judgement/order dated 23rd August 2017, found applicants/

petitioners having failed to explicate delay of 01 years and 06 years in

filing the Appeal and resultantly dismissed COD no.165/2017. It is this

order of which review is sought in concomitant petition. However,

again there is delay of 1235 days in filing review petition. So,

condonation of delay is sought for.

4. In application on hand, it is stated that after receiving copy of

judgement dated 23rd August 2017, the matter remained under

examination in Administrative Department and during this process

record was required to be collected from various offices, besides legal

advice was also sought from Law Department. It is also mentioned in

the application was sanction to file appeal was given by Law

Department on 11th October 2017. Letters Patent Appeal, being LPA

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no.01/2018, is stated to have been filed by applicants/petitioners that

was found not maintainable and accordingly dismissed vide order dated

27th November 2020, but giving liberty to work out remedy as available

under law. It is also stated that thereafter the matter remained under

examination in Administrative Department and legal advice was sought

from Law Department to seek review. The examination of the matters

and consideration of question of filing review petition at various levels

led to consumption of time, is what applicants aver. Applicants claim

they have been prosecuting with due diligence and in good another

proceeding, i.e., LPA no.01/2018, but the same proved to be abortive

because of lack of jurisdiction and therefore no decision could be

rendered on merits of the case as the forum proved to be a wrong one.

5. Insofar as review petition is concerned, it is asserted by applicants/

petitioners that sufficient cause should receive a liberal construction so

as to advance substantial justice and that the award has been enhanced

seven times and the rate of 2009 has been given in favour of

respondents whereas land has been acquired in the year 2002 and that

delay on the part of applicants/petitioners was not deliberate but was

explained properly in the application. In support of averments made in

the application, learned counsel for applicants has stated that it is settled

position of law that refusal to condone delay can result in a meritorious

matter being thrown out at the very threshold and cause of justice being

defeated and that if delay is condoned highest that can happen is that a

cause which would be decided on merits after hearing parties and every

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day's delay does not mean that a pedantic approach should be made

inasmuch as doctrine must be applied in a rational common sense in

pragmatic manner. Reliance has been placed on 2010 (6) SCC 786,

2015 (3) SCC 569, (1987) 2 SCC 107, (1988) 2 SCC 142, (2005) 3 SCC

752, (1996) 10 SCC 664.

6. In the above backdrop, it may be mentioned here that while considering

the condonation of delay application, merits of the case are also

required to be taken into consideration, as it has been observed in a

number of judgments that substantial justice being paramount and

pivotal and the technical consideration should not be given undue and

uncalled for emphasis. There should be a liberal, pragmatic, justice

oriented, non-pedantic approach while dealing with an application for

condonation of delay, for, the courts are not supposed to legalize

injustice but are obliged to remove injustice.

7. It is true that Courts should always take liberal approach in the matter

of condonation of delay, particularly when the appellant is the State,

but while considering the application, the court should also find out as

to whether there is any merit in the appeal filed by the State or not.

8. In Pundlik Jalam Patil (dead) by LRs v. Executive Engineer, Jalgaon

Medium Project and another, (2008) 17 SCC 448, it has been held by

the Supreme Court that:

"29. It needs no restatement at our hands that the object for fixing time-limit for litigation is based on public policy fixing a lifespan for legal remedy for the purpose of general welfare. They are meant to see that the parties

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do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his Jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy.

30. Public interest undoubtedly is a paramount consideration in exercising the courts' discretion wherever conferred upon it by the relevant statutes. Pursuing stale claims and multiplicity of proceedings in no manner subserves public interest. Prompt and timely payment of compensation to the land losers facilitating their rehabilitation/ resettlement is equally an integral part of public policy. Public interest demands that the State or the beneficiary of acquisition, as the case may be, should not be allowed to indulge in any act to unsettle the settled legal rights accrued in law by resorting to avoidable litigation unless the claimants are guilty of deriving benefit to which they are otherwise not entitled, in any fraudulent manner. One should not forget the basic fact that what is acquired is not the land but the livelihood of the land losers. These public interest parameters ought to be kept in mind by the courts while exercising the discretion dealing with the application filed under Section 5 of the Limitation Act. Dragging the land losers to courts of law years after the termination of legal proceedings would not serve any public interest. Settled rights cannot be lightly interfered with by condoning inordinate delay without there being any proper explanation of such delay on the ground of involvement of public revenue. It serves no public interest."

9. The Supreme Court in Office of The Chief Post Master General v.

Living Media India Ltd., AIR 2012 SC 1506, has been held that:

"12. It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us. Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bonafide, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited

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bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody including the Government.

13. In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red-tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few."

10.In Amalendu Kumar Bera v. State of West Bengal, (2013) 4 SCC 52,

it has been held by the Supreme Court that:

"Merely because the Respondent is the State, delay in filing the appeal or revision cannot and shall not be mechanically considered and in absence of 'sufficient cause' delay shall not be condoned."

11.In Tukaram Kana Joshi v. M.I.D.C., AIR 2013 SC 565, the Supreme

Court has observed that:

"The question of condonation of delay is one of discretion and has to be decided on the basis of the facts of the case at hand, as the same vary from case to case."

12.In the case of Esha Bhattacharjee v. Raghunathpur Nafar Academy, (2013) 12 SCC 649, the Supreme Court made an observation as follows:

"15. From the aforesaid authorities the principles that can broadly be culled out are:

i) There should be a liberal, pragmatic, justice-oriented, non- pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice.

ii) The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact- situation.

CM no.776/2021 RP no.11/2021

iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.

iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.

v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.

vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice.

vii) The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play.

viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.

ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.

x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation.

xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.

xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.

xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.

16. To the aforesaid principles we may add some more guidelines taking note of the present-day scenario. They are:

a) An application for condonation of delay should be drafted with careful concern and not in a half hazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system.

b) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective.

c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto.

d) The increasing tendency to perceive delay as a non- serious matter and, hence, lackadaisical propensity can be

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exhibited in a non-challant manner requires to be curbed, of course, within legal parameters."

13.This Court, while rendering the judgement under review, has recorded

the findings based on an elaborate appreciation of record on the file.

The Supreme Court in SLP (Civil) Diary No(s).19846/2020 titled as

Union of India Vs. Central Tibetan Schools Admin & Ors., decided

on 04.02.2021, while dismissing it on account of delay observed as

under:

"We have repeatedly being counselling through our orders various Government departments, State Governments and other public authorities that they must learn to file appeals in time and set their house in order so far as the legal department is concerned, more so as technology assists them. This appears to be falling on deaf ears despite costs having been imposed in number of matters with the direction to recover it from the officers responsible for the delay as we are of the view that these officers must be made accountable. It has not had any salutary effect and that the present matter should have been brought up, really takes the cake!

The aforesaid itself shows the casual manner in which the petitioner has approached this Court without any cogent or plausible ground for condonation of delay. In fact, other than the lethargy and incompetence of the petitioner, there is nothing which has been put on record. We have repeatedly discouraged State Governments and public authorities in adopting an approach that they can walk in to the Supreme Court as and when they please ignoring the period of limitation prescribed by the Statutes, as if the Limitation statute does not apply to them. In this behalf, suffice to refer to our judgment in the State of Madhya Pradesh & Ors. v. Bheru Lal [SLP [C] Diary No.9217/2020 decided on 15.10.2020] and The State of Odisha & Ors. v. Sunanda Mahakuda [SLP [C] Diary No. 22605/2020 decided on 11.01.2021] .........................".

14.In the present case, there is delay of 1235 days in preferring Review

Petition. Even contents contained in Review Petition do not render any

aid and assistance to applicants, to seek review of the judgement.

Review petition is an Appeal under the guise of Review Petition. It is

pertinent to mention here that while considering abovementioned

contentions made in the review petition, the scope and ambit of Section

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114 read with Order XLVII Rue 1 of the Code of Civil Procedure is to

be taken into consideration.

15.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."

16.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

the absence of any such error, finality attached to the judgment/order

cannot be disturbed.

17.The power of review can also be exercised by the court in the event

discovery of new and important matter or evidence takes place which

despite exercise of due diligence was not within the knowledge of the

applicant or could not be produced by him at the time when the order

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was made. An application for review would also lie if the order has

been passed on account of some mistake.

18.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.

19. 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.

20. The Supreme Court in Haridas Das vs. 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:

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'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 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."

21. 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

47 Rule 1 CPC. In exercise of 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'. [Vide:

Aribam Tuleshwar Sharma v. Aribam Pishak Sharma, AIR 1979 SC

1047; Satyanarayan Laxminarayan Hegde v. Millikarjun Bhavanappa

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Tirumale, AIR 1960 SC 137, and Parsion Devi v. Sumitri Devi, (1997)

8 SCC 715].

22. 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 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 vs. Neki, AIR 1922 PC 112 and Moran Mar Basselios Catholicos

v. Most Rev. Mar Poulose Athanasius, AIR 1954 SC 526.

23. 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."

24. 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 47 of the Code must be taken

into consideration. Section 114 of the Code although does not prescribe

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any limitation on the power of the court but such limitations have been

provided for in Order 47 Rule 1, CPC

25. 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 vs.

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

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

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purpose of Order 47 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].

26. 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 47 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

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Supreme court found that High Court overstepped the jurisdiction

vested in the Court under Order 47 Rule 1 CPC.

27. In the backdrop 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

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 47

Rule 1 CPC. After having an overall view of the grounds taken in the

application and submissions made by learned counsel for review

petitioner, there is no error apparent on the face of the record warranting

review of judgement dated 23rd August 2017. The judgements relied

upon by learned counsel for applicants/review petitioners, given above

discourse, would not render any aid and assistance to the case set up by

applicants / review petitioners. In such circumstances, application for

condonation of delay is wholly misplaced and so is the review petition

and as a corollary thereof the same are liable to be dismissed.

28. For the reasons discussed above, I do not find any merit in the

application for condonation of delay and as such, the same is dismissed.

Resultantly, in light of dismissal of condonation of delay application,

the petition seeking review of judgement dated 23rd August 2017 shall

also stand dismissed, being time barred.

(Vinod Chatterji Koul) Judge Srinagar 22.06.2021 Ajaz Ahmad, PS Whether the order is reportable: Yes/No.