Jammu & Kashmir High Court - Srinagar Bench
Mugli Begum &Ors vs Mir Arif & Ors on 19 May, 2023
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
RP No. 30/2022 in
MA No. 124/2014
Reserved On:15th of May, 2023
Pronounced On: 19th of May, 2023
Mugli Begum &Ors.
... Petitioner(s)
Through: -
Mr Nisar Ahmad Bhat, Advocate.
V/s
Mir Arif & Ors.
... Respondent(s)
Through: -
Mr G. A. Lone, Advocate with
Mr Mujeeb Andrabi, Advocate.
CORAM:
Hon'ble Mr Justice Rajnesh Oswal, Judge.
(JUDGMENT)
01. The Petitioners, through the medium of this petition, have
sought the review of the judgment dated 1st of April, 2022 passed in MA
No. 124/2014 titled 'Mir Arif & Ors. v. Mugli Begum & Ors.'.
02. The review is sought, inter alia, on the grounds: (i) that this
Court has not taken note of the fact that the respondent No.5 had filed the
written statement before the trial Court that substantiated the claim of the
petitioners; (ii) that this Court has made certain observations which have a
direct effect on the merits of the case, notwithstanding the fact that this
Court has observed that any observation made in the judgment shall have
no bearing on the merits of the case, but the judgment under review would
definitely influence the trial of the main suit; (iii) that the lis was required to
be protected till the final disposal of the suit; (iv) that the learned trial Court
was correct in placing reliance upon the report of the Commissioner; and
(v) that the observations made by this Court that the petitioners were not in
RP No. 30/2022 in
MA No. 124/2014
possession over the suit property at the time of filing of the suit is not in
accordance with law.
03. This Court, while entertaining the instant review petition, in
terms of order dated 28th of December, 2022, directed the parties to
maintain status quo in respect of the nature of the suit property on spot.
04. The contesting respondents filed an application for vacation of
the interim order dated 28th of December, 2022, stating therein that there is
no error apparent on the face of the record in the judgment passed by this
Court, of which review has been sought and that this Court has already
observed in the concluding paragraph of the judgment under review that
any observation made by this Court shall have no bearing upon the merits
of the case. It is also stated that the grounds projected by the petitioners in
the review petition do not fall within the purview of Order 47 of the Code
of Civil Procedure. This application, as prayed for, was treated as
objections to the review petition filed by the petitioners.
05. Mr. Nisar Ahmad Bhat, the learned Counsel appearing for the
petitioners, vehemently argued that after this Court passed the judgment
under review, the respondents started alienating the suit property and the
learned trial Court did not entertain the application filed by the petitioners
in this behalf and further argued that this court could have modified the
relief, though in the application for grant of interim relief, only protection
of the possession was sought by the petitioners. Mr. Nissar, learned counsel
for the petitioners, further submitted that the lis was required to be protected
and he placed reliance upon the judgments: (i) (2012) 2 SCC 196; and (ii)
(2014) 8 SCC 294.
06. Per Contra, Mr. G. A. Lone, the learned Counsel for the
respondents, submitted that the grounds urged in the review petition are
beyond the scope of Order 47 of the Code of Civil Procedure, as such, the
present review petition is not maintainable. He further argued that the
petitioners could have approached the learned trial Court in respect of their
RP No. 30/2022 in
MA No. 124/2014
grievance with regard to the alienation of the land, but, in no way, could
have filed the review petition, thereby projecting their grievance in respect
of the alienation of the suit land.
07. Heard and perused the record.
08. This Court, while deciding the appeal filed by the contesting
respondents in terms of the judgment under review, has specifically dealt
with the prayer made by the petitioners/plaintiffs in an application for grant
of interim relief, wherein the only prayer made by the petitioners was for
restraining the contesting respondents from interfering into their peaceful
possession over the suit property. This Court had not considered any
submission of the petitioners with regard to alienation or creation of third
party interest vis-à-vis the suit property in view of the absence of any prayer
made by the petitioners and, in fact, that was not the issue before this Court
in the appeal filed by the contesting respondents. Be that as it may, the
grounds urged in the present petition have already been considered by this
court while deciding the appeal, therefore the same do not fall within the
purview of Order 47 of the Code of Civil Procedure that may require
indulgence by this Court. In fact, the petitioners through the medium of this
review petition want this Court to hear an appeal against its own order.
09. In case titled 'Perry Kansagra v. Smriti Madan Kansagra',
reported as '(2019) 20 SCC 753', the Hon'ble Apex Court has held as
under:
"17. We have gone through both the judgments of the High Court
in the instant case and considered rival submissions on the point. It is well
settled that an error which is required to be detected by a process of
reasoning can hardly be said to be an error apparent on the face of the
record. To justify exercise of review jurisdiction, the error must be
self-evident. Tested on this parameter, the exercise of jurisdiction in
the present case was not correct. The exercise undertaken in the
present case, in our considered view, was as if the High Court was
sitting in appeal over the earlier decision dated 17-2-2017. Even
assuming that there was no correct appreciation of facts and law in
the earlier judgment, the parties could be left to challenge the decision
in an appeal. But the review was not a proper remedy at all. In our
view, the High Court erred in entertaining the review petition and setting
aside the earlier view dated 17-2-2017.
... (Emphasis supplied)
RP No. 30/2022 in
MA No. 124/2014
10. Further in 'Parsion Devi v. Sumitri Devi', reported as '(1997)
8 SCC 715', the Hon'ble Apex Court has held as under:
"10. 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".
... (Emphasis supplied)
11. In the light of the above legal position and having regard to the
facts and circumstances of the present case, I do not find any error apparent
on the face of record in the judgment dated 1st of April, 2022 passed in MA
No. 124/2014 as would warrant its recall on review. Accordingly, the
present review petition is dismissed, along with the connected CM(s).
Interim direction(s), if any subsisting as on date, shall stand vacated.
(Rajnesh Oswal)
Judge
SRINAGAR
19th May, 2023.
"TAHIR"
i. Whether the Judgment is reportable? No.
