Jammu & Kashmir High Court - Srinagar Bench
Mudasir Ahmad Yatoo & Ors vs Union Territory Of Jk & Ors on 6 May, 2021
Serial No. 103
Supplementary-1 List
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
CM No.3007/2021
RP No.51/2021
Dated: 6th of May, 2021.
Mudasir Ahmad Yatoo & Ors.
..... Petitioner(s)
Through: -
Mr A. M. Dar, Senior Advocate with
Ms Minsha Latief, Advocate.
V/s
Union Territory of JK & Ors.
..... Respondent(s)
Through: -
Mr B. A. Dar, Sr. AAG.
CORAM:
Hon'ble Mr Justice Ali Mohammad Magrey, Judge
Hon'ble Mr Justice Vinod Chatterji Koul, Judge
(JUDGMENT)
Per Magrey; J (Oral);
CM No.3007/2021:
01. For the reasons stated in the application, coupled with
submissions made at the Bar, the instant application is allowed and the
applicants/ petitioners are permitted to file the accompanying review petition
without enclosing therewith the requisite Court fee, stamp papers, notarization
of affidavits, etc. The applicants/ petitioners are, however, directed to make
good the aforesaid deficiency immediately upon removal of restrictions by the
Government on account of outbreak of COVID-19 Pandemic.
02. CM disposed of as above.
Page 2 of 11
CM No. 3007/2021; RP No.51/2021
RP No.51/2021:
03. By this review petition, the petitioners are seeking review of final
judgment of this Court dated 12th of April, 2021, passed in a batch of petitions
with lead case being WP(C) No. 2178/2020, whereby the petitions of the
petitioners stand dismissed.
04. We heard Mr A. M. Dar, the learned Senior counsel, on behalf
of the petitioners as well as Mr B. A. Dar, the learned Senior Additional
Advocate General representing the respondents; perused the pleadings on
record; and have considered the matter.
05. What requires to be stated, at the outset, is that in the instant
review petition, the 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 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 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
against 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.
Page 3 of 11
CM No. 3007/2021; RP No.51/2021
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,
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 petitioners
on merits of the case is concerned, virtually the 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.: (2013) 8
Supreme Court Cases 320', while dealing with a similar issue, at paragraphs
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
Page 4 of 11
CM No. 3007/2021; RP No.51/2021
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
Page 5 of 11
CM No. 3007/2021; RP No.51/2021
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
Page 6 of 11
CM No. 3007/2021; RP No.51/2021
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
CM No. 3007/2021; RP No.51/2021
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
CM No. 3007/2021; RP No.51/2021
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."
CM No. 3007/2021; RP No.51/2021
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. v.
Govt. Handloom Silk Weaving Factory & Ors.: 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."
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 petitioners
have not been able to point out any error, apparent on the face of the record,
CM No. 3007/2021; RP No.51/2021
but, on the contrary, under the guise of the instant review petition, the
petitioners are challenging the order passed by this Court, which is under
review.
10. 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 12th of April, 2021, passed in a batch of petitions with lead
case being WP(C) No. 2178/2020, as would warrant its recall on review.
11. When apprised of the above position, Mr A. M. Dar, learned
Senior Counsel, representing the petitioners, submitted that the instant review
petition may be disposed of with the observation that the decision rendered by
the Court in the petitions of the petitioners or in the instant review petition as
well as the pendency of the case of the petitioners before the Tribunal shall
not form an impediment for the respondents in considering the case of the
petitioners for the impending vacancies.
12. Mr B. A. Dar, the learned Senior Additional Advocate General,
representing the respondents, submitted that the claim of the petitioners stands
already considered by the respondents, which consideration has resulted in
rejection of their case.
13. Without commenting about the merits of the aforesaid
submission, we dispose of this review petition with the direction that the
dismissal of the petitions filed by the petitioner or the decision in this review
petition as well as pendency of the case(s) of the petitioners before the
Tribunal shall not form an impediment for the respondents to consider the case
CM No. 3007/2021; RP No.51/2021
of the petitioners for their appointment against available vacancies as per
rules.
14. Review petition disposed of on the aforementioned terms.
(Vinod Chatterji Koul) (Ali Mohammad Magrey)
Judge Judge
SRINAGAR
May 6th, 2021
"TAHIR"
i. Whether the Judgment is speaking? Yes/No.
ii. Whether the Judgment is reportable? Yes/No.
TAHIR MANZOOR BHAT
2021.05.06 14:30
I attest to the accuracy and
integrity of this document
