Jammu & Kashmir High Court - Srinagar Bench
National Insurance Company Ltd vs Mst. Mukhti And Anr on 21 October, 2021
Serial No. 19
Regular list
HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT
SRINAGAR
RP No. 23/2019
CM No. 3415/2019
National Insurance Company Ltd.
..... Petitioner(s)
Through: -
Mr. Javid Ahmad Kawoosa, Sr. Advocate with
Mr. Areeb Kawoosa, Advocate
V/s
Mst. Mukhti and Anr.
..... Respondent(s)
Through: -
Mr. N. A. Beigh, Sr. Advocate with
Mr. Sofi Manzoor, Advocate for review petitioners.
CORAM:
Hon'ble Mr Justice Ali Mohammad Magrey, Judge
(ORDER)
21.10.2021
01. By the medium of instant review petition, the review petitioner seeks
review of final order of this Court dated 2nd of December, 2016, passed in
CMA No. 08/2015, whereby the appeal of the appellant Insurance Company
has been disposed of, operative portion whereof reads as under:
"5. In this view of the above based on evidence on record,
Tribunal should have granted Appellant-Insurance Company the right
to recover the compensation from owner/driver of the offending vehicle
after settling the claimants. The appeal to that extent is justified and the
appellant-Insurance Company to first pay the compensation to the
claimants and recover the same from the owner of the vehicle.
6. Appeal is accordingly, allowed."
02. Learned counsel for the review petitioner submits that the appellate
Court has recorded finding qua grant of liberty to the Insurance Company for
recovery of the award amount from the review petitioner, which is against the
records. To elaborate the point learned counsel has referred to the issue No.
2, framed by the Tribunal as to whether the respondent driver was driving the
offending vehicle on the date of accident without driving license, if yes,
whether he has committed breach of insurance contract absolving the
respondent No. 2 company from its liability on account of petitioner's claim
and the evidence recorded in support of the said issue as also the finding
recorded to demonstrate that the respondent Insurance Company had failed
to prove the issue No . 2, as the finding of the Tribunal has declared the license
as valid. It is submitted that the sole basis reversing the finding of the Tribunal
has reference to the evidence of Insurance Company's witness namely R K.
Upal, Administrative Officer.
03. Mr. Javid Ahmad Kawoosa, learned senior counsel appearing for
Insurance Company submits that there is no scope in the review, as the point
raised amounts to discussing the merit of the case.
04. Heard 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 petitioner 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 the Court and, if the review petitioner was aggrieved of
the said findings, he ought to have availed the remedy under law for
challenging the same in 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 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, 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 petitioner on
merits of the case is concerned, virtually the review petitioner seeks the same
relief which he 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 rehearing 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 rehearing 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
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."
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 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 is challenging the order passed by this Court, which is under
review.
09. In the above background coupled with the law discussed hereinabove,
I do not find any error, apparent on the face of the record, in the judgment
dated 2nd of December, 2016, passed by this Court in CMA No. 08/2015, as
would warrant its recall on review. It being so, this review petition is found to
be meritless and, as a sequel thereto, same shall stand dismissed alongwith
the connected CM(s).
(Ali Mohammad Magrey)
Judge
SRINAGAR
21.10.2021
"Mohammad Yasin Dar"
i. Whether order is speaking? Yes/No.
MOHAMMAD YASIN DAR ii. Whether order is reportable? Yes/No.
2021.10.27 10:24
I attest to the accuracy and
integrity of this document
