Shahida Razak vs State Of J&K And Ors
2022 Latest Caselaw 1784 j&K/2

                                                                                   Sr. No. 47
                                                                                 Supplementary
         IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                            AT SRINAGAR
         CJ Court

                                         RP No. 137/2021



         Shahida Razak                                         ...Petitioner(s)/Appellants.
         Through:      Ms. Arifa Jan, Advocate
                                                 Vs.
         State of J&K and Ors.                                           .... Respondent(s)
         Through:


         CORAM:
         HON'BLE THE CHIEF JUSTICE
         HON'BLE MR JUSTICE SANJAY DHAR, JUDGE

                                             ORDER

18.10.2022

01. By medium of the instant review petition, the review petitioner is seeking

review of order passed on 09.11.2021 in LPASW No. 103/2018, on the grounds

detailed out as under;

"(i) That the scheme EV's in terms of which the petitioner was selected was merged with the ReT Scheme and the Hon'ble Court by observing that the scheme in question has been banned as such has caused great injustice to the applicant, there is an error apparent on the face of record, as such, the Judgment needs to be reviewed.

(ii) That the Hon'ble Supreme Court in Sushma Gosain Vs. Union of India AIR 1989 SC 1976 has held that delay in appointment and rejection of application in view of ban subsequently imposed on appointment of ladies- Dental of appointment is patently arbitrary.

(iii) That the Hon'ble Division Bench of this Court vide order dated 12.07.2021, directed that Mr. Shah Aamir, learned AAG appearing for the appellant prays for and is allowed time to bring on record the documents by which the above scheme was discontinued and indicating the procedure to be adopted for adjusting all education volunteers already appointed under the Scheme, but the non-applicants/appellants have not complied the above direction and the Hon'ble Court instead of directing the appellant to place on record the scheme have disposed of the LPA as such, have caused great injustice to the applicant/respondent."

02. Heard learned counsel for the petitioner, perused the pleadings on record and

considered the matter.

03. 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.

04. 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.

05. 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."

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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.

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56. It follows, therefore, that the power of review can be exercised for correction of a mistake but not to substitute a view. Such powers can be exercised within the limits of the statute dealing with the exercise of power. The review cannot be treated like an appeal in disguise. The mere possibility of two views on the subject is not a ground for review. Once a review petition is dismissed no further petition of review can be entertained. The rule of law of following the practice of the binding nature of the larger Benches and not taking different views by the Benches of coordinated jurisdiction of equal strength has to be followed and practised. However, this Court in exercise of its powers under Article 136 or Article 32 of the Constitution and upon satisfaction that the earlier judgments have resulted in deprivation of fundamental rights of a citizen or rights created under any other statute, can take a different view notwithstanding the earlier judgment.

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58. Otherwise also no ground as envisaged under Order XL of the Supreme Court Rules read with Order 47 of the Code of Civil Procedure has been pleaded in the review petition or canvassed before us using the arguments for the purposes of reviewing the judgment in Sarla Mudgal case, [JT 1995 (4) SC 331] It is not the case of the petitioners that they have discovered any new and important matter which after the exercise of due diligence was not within their knowledge or could not be brought to the notice of the Court at the time of passing of the judgment. All pleas raised before us were in fact addressed for and on behalf of the petitioners before the Bench which, after considering those pleas, passed the judgment in Sarla Mudgal case. We have also not found any mistake or error apparent on the face of the record requiring a review. Error contemplated under the rule must be such which is apparent on the face of the record and not an error which has to be fished out and searched. It must be an error of inadvertence. No such error has been pointed out by the learned counsel appearing for the parties seeking review of the judgment. The only arguments advanced were that the judgment interpreting Section 494 amounted to violation of some of the fundamental rights. No other sufficient cause has been shown for reviewing the judgment. The words 'any other sufficient reason appearing in Order 47 Rule 1 CPC' must mean 'a reason sufficient on grounds at least analogous to those specified in the rule' as was held in Chhajju Ram v. Neki, [AIR 1922 PC 112] and approved by this Court in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius, [AIR 1954 SC 526] Error apparent on the face of the proceedings is an error which is based on clear ignorance or disregard of the provisions of law. In T.C. Basappa v. T. Nagappa, [AIR 1954 SC 440] this Court held that such error is an error which is a patent error and not a mere wrong decision. In Hari Vishnu Kamath v. Ahmad Ishaque [AIR 1955 SC 233], it was held:

"23. .... It is essential that it should be something more than a mere error; it must be one which must be manifest on the face of the record. The real difficulty with reference to this matter, however, is not so much in the statement of the principle as in its application to the facts of a particular case.

When does an error cease to be mere error, and become an error apparent on the face of the record? Learned counsel on either side were unable to suggest any clear-cut rule by which the boundary between the two classes of errors could be demarcated.

Mr. Pathak for the first respondent contended on the strength of certain observations of Chagla, C.J. in - 'Batuk K. Vyas v. Surat Borough Municipality, [AIR 1953 Bom 133′] that no error could be said to 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."

06. A cue can, in this behalf, be also had from the decision rendered by a Division

Bench of this High Court in the case of 'State of JK & Ors. vs. Govt. Handloom

Silk Weaving Factory & Ors.', reported in '2016 (2) JKJ 795(HC)', of which,

incidentally, I am the author, wherein, it has been held as follows:

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

07. 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.

08. 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 order dated 09.11.2021,

passed by this Court in LPASW bearing No. 103/2018, as would warrant its recall

on review, therefore, the review petition being without merit shall stand dismissed.

                               (SANJAY DHAR)           (ALI MOHAMMAD MAGREY)
                                   JUDGE                     CHIEF JUSTICE

                Srinagar
                18.10.2022
                "Mohammad Yasin Dar"




MOHAMMAD YASIN DAR
2022.10.19 14:17
I attest to the accuracy and
integrity of this document