Jammu & Kashmir High Court

Anmeet Kour vs Jatinder Singh on 8 May, 2023

                                                                 Sr. No. 1


               HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                             AT JAMMU


                                               RP No. 1/2023
                                               CM No. 12/2023.


Anmeet Kour                                        ....Petitioner/Appellant(s)

                   Through :- Mr. D.K. Khajuria, Advocate with
                              Mr. Jamrodh Singh, Advocate.


         V/s

Jatinder Singh                                             ....Respondent(s)


                   Through :-
Coram: HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE

                                 ORDER

08.05.2023 (Oral)

1. Through the medium of the instant review petition, the petitioner

seeks review of order dated 26.12.2022 passed in CM(M) No.

141/2022 on the grounds urged in the review petition.

2. Before adverting to the instant review petition, the facts emerging

therefrom would reveal that the respondent herein filed CM(M) No.

141/2022 supra before this Court and assailed orders dated

10.10.2022 and 18.11.2022 passed by the Court of Additional District

Judge (Commercial Court) Jammu in case titled "Sdn. Anmeet Kour

Vs. S. Jatinder Singh" upon an application filed by the petitioner

herein under Section 9 of the Arbitration and Reconciliation Act,

1996 seeking an interim relief in respect of running and operating of

a petrol/diesel outlet under a Partnership Deed executed with the

respondent herein.

3. The Court below upon entertaining the aforesaid application filed by

the petitioner herein passed an interim order on 10.10.2022 thereby

temporarily restraining the respondent herein from violating the terms

and conditions of the Partnership Deed dated 05.05.2018 subject to

the condition that the petitioner would commence the arbitral

proceedings within ninety days.

4. During the pendency of the application (supra) before the Court

below and subsequent to the passing of the order dated 10.10.2022,

the applicant before the Court below i.e the petitioner herein laid a

motion before the Court below seeking enforcement and

implementation of order dated 10.10.2022 through the intervention of

police agency, whereupon the Court below passed an order on

18.11.2022 directing SHO, Police Station, Satwari/SDPO South

Jammu to implement the order dated 10.10.2022 and file a

compliance report thereof.

5. This Court while considering CM(M) No. 141/2022 (supra) vide

order dated 26.12.2022 disposed of the same after hearing the counsel

for the parties and while maintaining the initial interim order dated

10.10.2022 passed by the Court below, set aside the order dated

18.11.2022 on the premise that no such direction could have been

passed by the Court below in the name of police agency having

regard to the facts and circumstances of the case as also in view of

the nature of interim order passed by the Court below dated

10.10.2022 which required the non-applicant-respondent herein not to

violate the terms and conditions of the Partnership Deed (supra).

6. According to the counsel for the petitioner herein, this Court could

not have entertained the petition-CM (M) No. 141/2022 supra filed

by the petitioner-respondent herein under Article 227 of the

Constitution of India in the light of the judgment of the Apex Court

passed in case titled "Shalini Shyam Shetty vs. Rajendra Shankar

Patil" reported in 2010 (8) SCC 329. Learned counsel for the

petitioner would contend that the exercise of supervisory jurisdiction

could not have been exercised by this Court qua a dispute of property

between private individuals unless there would have been any

infraction of a statute or that a private individual had acted in

collusion with a statutory authority.

Heard learned counsel for the review petitioner and perused the

record.

7. It is settled that the basic philosophy inherent in the recognition of the

doctrine of review is acceptance of human fallibility and that every

man is likely to commit an error and that a judge is also a human

being. It is also settled position qua the doctrine of review that if

there is an error due to human failing, there is no reason why it

cannot not be corrected as no error can be permitted to perpetuate the

cause for delay in justice or to defeat justice and that every mistake or

error must be corrected to do full and complete justice or to prevent

miscarriage of justice.

8. Keeping in mind the aforesaid basic philosophy qua the doctrine of

review, the ambit and scope of review enshrined in Order 47 and

Section 114 of the Code of Civil Procedure read with Rule 65 of the

Jammu and Kashmir High Court Rules, 1999 becomes imperative

which has been laid down by the Apex Court in case titled

Inderchand Jain Vs. Motilal reported in 2009 (14) SCC 663

wherein from para 7 to 11, it has been noticed as under:

"7. Section 114 of the Code of Civil Procedure (for short "the Code") provides for a substantive power of review by a Civil Court and consequently by the appellate courts. The words "subject as aforesaid" occurring in Section 114 of the Code means 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 any limitation on the power of the court but such limitations have been provided for in Order 47 of the Code; Rule 1 whereof reads as under:

"17. The power of a civil court to review its judgment/decision is traceable in Section 114 CPC. The grounds on which review can be sought are enumerated in Order 47 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 to the court which passed the decree or made the order."

8. An application for review would lie inter alia when the order suffers from an error apparent on the face of the record and permitting the same to continue would lead to failure of justice. In Rajendra Kumar v. Rambai [AIR 2003 SC 2095], this Court held :

"The limitations on exercise of the 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."

9. 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 was made. An application for review would also lie if the order has been passed on account of some mistake. Furthermore, an application for review shall also lie for any other sufficient reason.

10. It is beyond any doubt or dispute that the review court does not sit in appeal over its own order. A re-hearing 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.

11. Review is not appeal in disguise. In Lily Thomas v. Union of India [AIR 2000 SC 1650], this Court held :

"56. It follows, therefore, that the power of review can be exercised for correction of a mistake and 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 an appeal in disguise."

9. Reverting back to the case in hand, the only ground upon which the

review of the order is being sought by the petitioner herein is the

alleged mis-appreciation of the judgment of the Apex Court passed in

the case of Shalini Shyam Shetty (supra) on the ground that this

Court ought not to have exercised supervisory jurisdiction in the

matter of a property dispute inter se private individuals. The ground

urged in the petition as also the arguments advanced by the learned

counsel for the petitioner herein in furtherance thereof manifestly is

misconceived and misplaced, in that, this Court while considering the

petition under Article 227 of the Constitution of India was not

adjudicating upon any of the individual rights of the petitioner herein

and the respondent herein qua the property i.e petrol pump outlet but

was only testing the validity or otherwise of the orders dated

10.10.2022 and 18.11.2022 passed by the Court below.