Jammu & Kashmir High Court - Srinagar Bench
Abdul Haq Banday And Anr vs Union Territory Of J&K And Ors on 14 October, 2025
Bench: Javed Iqbal Wani, Rahul Bharti
S. No. 1
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
Reserved on:19.09.2025
Pronounced on:14.10.2025
RP No.60/2024 in LPA No.81/2024 CM No.5985/2024
ABDUL HAQ BANDAY AND ANR. ...Petitioner/Appellant(s)
Through: Mr. M. Sultan, Advocate.
Vs.
UNION TERRITORY OF J&K AND ORS. ...Respondent(s)
Through: Mr. Altaf Haqani, Sr. Advocate with
Mr. Asif Wani, Advocate.
Mr. Ruaani A. Baba, Advocate
CORAM:
HON'BLE MR JUSTICE JAVED IQBAL WANI, JUDGE
HON'BLE MR JUSTICE RAHUL BHARTI, JUDGE
ORDER
Per Javed Iqbal, J.
1. Petitioners in the instant review petition are seeking review of
judgment and order dated 28-08-2024 passed in LPAOW No.81/2024 in
WP(C) No.148/2023.
2. Before proceeding to advert to the petition in hand, a brief background
of the case is delineated hereunder; -
(i) Petitioners herein maintained WP(C) No.148/2023 supra seeking
therein the following reliefs: -
a. Writ of Certiorari be issued in favour of the petitioners and against the
respondent, quashing of the impugned order dated 20.09.2022 passed by the
Respondent No.2-Chief Executive Officer J&K Waqaf Board Srinagar.
b. Writ of Mandamus, commanding the respondents to disburse the amount
withhold accumulated Nishan Dihan to the petitioners and also further Nazra-Niaz
due to the petitioners.
(ii) The aforesaid reliefs came to be prayed on the premise that the
respondent 2 herein issued an order on 29-09-2022 in terms
whereof the claim of the petitioners herein to the share of Nazrana
of Asar-e-Sharif, Hazratabad, came to be rejected despite being
the descendants of Nishan Dehandah, namely Ghulam Mohd
Banday having been succeeded by the father of the petitioners
herein namely Ghulam Hassan Banday as the said Ghulam Mohd
Banday had died issueless, and that the said claim of the petitioners
herein to the said Nazrana had even been settled earlier in a suit
wherein an ex-parte judgment and decree had been passed in their
favour on 23-05-1991 besides, others against the father of the
respondent 3 herein, while stating further that the order dated 29-
09-2022 impugned in the petition had been issued pursuant to an
order of this Court dated 19-05-2022 passed in WP(C)
No.655/2021, titled as "Abdul Haq Banday Vs. UT of J&K and
Ors"
(iii) The writ petition supra being WP(C) No.148/2023 filed by the
petitioners came to be allowed by the writ court in terms of
judgment and order dated 12-02-2024, and the order under
challenge therein dated 29-09-2022 came to be quashed, upholding
the claim of the petitioners herein qua the share of Nazrana in
question.
(iv) The said judgment and order dated 12-02-2024, came to be
challenged by respondent 3 herein in an appeal being LPA
No.81/2024 supra which came to be allowed, and impugned
judgment and order dated 12-02-2024 came to be set-aside, and the
writ petition of the petitioners came to be dismissed, with costs to
the tune of Rs. 20,000/-, fundamentally on the basis of a
preliminary, objection of respondent 3 herein that the petitioners
have had suppressed and concealed the material facts relating to
the ex-parte judgment and decree dated 23-05-1991, as the said
judgment and decree had been held in-executable by an order of
the executing court, when put to execution which order
subsequently was even upheld in terms of order dated 01-06-2005
passed by this Court in civil revision No. 40/2004, filed by the
petitioners herein against the said order of the executing court.
3. Petitioners herein have maintained the instant review petition on the
following grounds: -
a) The Hon'ble Supreme Court in a case Arenuma Burwa V/S Union of India and
Ors reported in (2007) 6 SCC 120 has held:
"To enable the court to refuse to exercise discretionary jurisdiction on
suppression must be of material fact, what would be material fact would
depend upon facts and circumstances of each case, material fact would
mean material for the purpose of determination of lis. The logical corollary
whereof would be whether the same was made for grant or denial of relief.
If the fact suppressed is not material to lis the court may not refuse to
grant relief in exercise of discretionary jurisdiction"
b) That the Hon'ble Division Bench has held:
'failure to disclose order dated 01-06-2005 passed by the Hon'ble High
Court in CR No.40 captioned Abdul Ahad Banday & others V/S Nazir
Ahmad Banday in WP(C) No. 148/2023 titled Abdul Ahad Banday &
Another V/S UT of J&K & others amounted suppression of material fact as
its withholding may hold direct bearing in grant/refusal of the reliefs
prayed, being unclean, therefore entailed dismissal of the writ petition.
That the order dated 01-06-2005 passed in CR No. 40/2005 is an order passed in
a civil revision petition filed against an order of dismissal in execution petition,
passed by the court of City Munsiff Srinagar for reasons of non disclosure of total
amount to be shared as well as the ratio of sharing of Nazro Niyaz.
It is respectfully submitted both these infirmities stood cured with the passage of
time as the order (Annexure III) of LPA gives the specific amount assigned to
Group C of Category A of Banday Group and vide Annexures V, VI & VII of LPA,
the sharing ratio of the Co-sharers of the parties to the LPA stands disclosed,
therefore, the character of being material fact which holds bearing for grant or
refusal of the writ are Annexures V, VI & VII of LPA and not order passed in CR
No.40/2005, which exist placed on record, have not been suppressed, therefore,
holding unclean on suppression of a fact, which is not material in light of
Annexures III, V, VI & VIII of LPA. Thus an error has emerged in the order dated
28-08-24, which is craved to be reviewed in the interests of justice.
c) That the grievance projected through WP (C) No.148/2023 is failure on
the part of the appellant to collect the money from the office of Waqf Board and to
disburse the same to the writ petitioners is the only grievances projected, the
entitlement of sharing is no more in dispute nor is sought in the prayer of the writ.
Therefore, holding the order passed by the Hon'ble High court in CR No. 40/2004
material fact is not correct, thus an error has emerged which is craved to be
reviewed in the interests of justice.
4. Objections to the review petition have been filed by respondents
herein wherein review petition is being opposed and its dismissal is being
sought, primarily on the premise that the review petition is misconceived
and same does not disclose at all any error apparent on the face of the record
or any other reason which could justify the review of the judgment and order
under review.
Heard counsel for the parties and perused the record.
5. Before proceeding further in the matter, it would be appropriate to
refer hereunder the relevant provisions of law relating to the doctrine of
review, as also the relevant judgements passed by the Apex Court in this
regard.
6. Rules 65 and 66 (4) of Jammu and Kashmir High Court Rules of
1999 deals with the provision of Review and provide as under:
65. Application for review of judgment:
The court may review its judgment or order but no application for review shall
be entertained except on the ground mentioned in order XL VII Rule 1 of the
Code.
66(4) The application for review shall be disposed of by the court in accordance
with the provisions of Order XL VI of the Code.
A bare perusal of the aforesaid Rules postulate that the court may
review its judgment or order upon an application which has to be
entertained only and exclusively on the grounds mentioned in Order
XLVI of CPC.
7. The Apex Court in case titled as Inderchand Jain Vs. Motilal
reported in 2009 (14) SCC 663 has at para 7 provided 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. Further the Apex court in case titled as "Lily Thomas v. Union of
India" reported in (2000) 6 SCC 224, at para 56 has held as under: -
"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. The Apex Court also in case titled as "Shri Ram Sahu (Dead)
through LRs and others vs. Vinod Kumar Rawat" reported in
2021 (13) SCC 1 has at paras 33 and 34 held as under:-
33. In the case of State of West Bengal and Others vs. Kamal Sengupta
and Anr., (2008) 8 SCC 612, this Court had an occasion to consider
what can be said to be "mistake or error apparent on the face of
record". In para 22 to 35 it is observed and held as under:
"22. The term "mistake or error apparent" by its very
connotation signifies an error which is evident per se from
the record of the case and does not require detailed
examination, scrutiny and elucidation either of the facts or
the legal position. If an error is not selfevident and detection
thereof requires long debate and process of reasoning, it
cannot be treated as an error apparent on the face of the
record for the purpose of Order 47 Rule 1 CPC or Section
22(3)(f) of the Act. To put it differently an order or decision
or judgment cannot be corrected merely because it is
erroneous in law or on the ground that a different view could
have been taken by the court/tribunal on a point of fact or
law. In any case, while exercising the power of review, the
court/tribunal concerned cannot sit in appeal over its
judgment/decision.
.
.
.
26. In Moran Mar Basselios Catholicos v. Mar Poulose
Athanasius (supra) this Court interpreted the provisions
contained in the Travancore Code of Civil Procedure which
are analogous to Order 47 Rule 1 and observed:
"32. ... Under the provisions in the Travancore Code
of Civil Procedure which is similar in terms to Order
47 Rule 1 of our Code of Civil Procedure, 1908, the
court of review has only a limited jurisdiction
circumscribed by the definitive limits fixed by the
language used therein.
It may allow a review on three specified grounds, namely,
(i) discovery of new and important matter or evidence
which, after the exercise of due diligence, was not
within the applicant's knowledge or could not be
produced by him at the time when the decree was
passed, (ii) mistake or error apparent on the face of
the record and (iii) for any other sufficient reason.
It has been held by the Judicial Committee that the
words 'any other sufficient reason' must mean 'a
reason sufficient on grounds, least analogous to
those specified in the rule'."
27. In Thungabhadra Industries Ltd. v. Govt. of A.P. (supra) it was
held that a review is by no means an appeal in disguise whereof
an erroneous decision can be corrected.
28. In Parsion Devi v. Sumitri Devi (Supra) it was held as under:
(SCC p. 716) "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
selfevident 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'. There is a
clear distinction between an erroneous decision and an error
apparent on the face of the record. While the first can be
corrected by the higher forum, the latter only can be
corrected by exercise of the review jurisdiction. A review
petition has a limited purpose and cannot be allowed to be
'an appeal in disguise'."
34.To appreciate the scope of review, it would be proper for this Court to discuss
the object and ambit of Section 114 CPC as the same is a substantive provision
for review when a person considering himself aggrieved either by a decree or by
an order of Court from which appeal is allowed but no appeal is preferred or where
there is no provision for appeal against an order and decree, may apply for review
of the decree or order as the case may be in the Court, which may order or pass
the decree. From the bare reading of Section 114 CPC, it appears that the said
substantive power of review under Section 114 CPC has not laid down any
condition as the condition precedent in exercise of power of review nor the said
Section imposed any prohibition on the Court for exercising its power to review its
decision. However, an order can be reviewed by a Court only on the prescribed
grounds mentioned in Order 47 Rule 1 CPC, which has been elaborately
discussed hereinabove. An application for review is more restricted than that of an
appeal and the Court of review has limited jurisdiction as to the definite limit
mentioned in Order 47 Rule 1 CPC itself. The powers of review cannot be
exercised as an inherent power nor can an appellate power can be exercised in
the guise of power of review.
10. Thus having regard to above it can safely be concluded that normal
rule of law is that once a judgment is pronounced or an order is made, the
court becomes functus officio (ceases to have control over the matter) and, as
such, a judgment or an order becomes final and cannot be altered, changed,
varied or modified, however, the doctrine of the review is an exception to
this principle of law and can be allowed in certain circumstances only as is
provided under Section 114 read with Order 47 CPC.
11. It is also relevant to mention here that a right of the review has been
held by courts as both substantive as well as procedural, and as a substantive
right has to be conferred by law either expressly or by necessary implication
and that there can be no inherent right of review, but as a matter of
procedure every court can correct an inadvertent error which has crept in a
judgment or order due to procedural defect or arithmetical or clerical error or
by misrepresentation or fraud of a party to the proceeding.
12. Keeping in mind the aforesaid provisions and position of law and
reverting back to the case in hand, the moot ground urged by the petitioners
in the instant review petition is that an error has crept in the judgment and
order under review being apparent on the face of record as the Court has
wrongly held the petitioners guilty of suppression of material fact owing to
the non-disclosure of order passed by this Court in civil review No. 40/2004
dated 01-06-2005 arising out of the order of the executing court qua the
execution of decree dated 23-05-1991 and that the reason for non-execution
of the said decree by the executing court and upheld by this Court was non-
disclosure of total amount of Nazro-Niaz as well as the ratio of its sharing,
and not for any other reason and, as such, same was not a material fact
having a bearing upon the writ petition of the petitioners herein.
13. However, it is not in dispute that the petitioners herein admittedly
concealed and suppressed the fact of filing of said civil revision No. 40/2004
before this Court and decision dated 01-06-2005, rendered therein whereby
the order of executing court, holding the decree dated 23-05-1991 earned by
the petitioners herein as in-executable was upheld. The said fact ought to
have been brought into the notice of the writ court by the petitioners, more
so, when the petitioners herein have had heavily relied upon the decree dated
23-05-1991 which decree however, came to be held in-executable by the
executing court and thereafter by this Court as well in the revision petition
supra. Therefore, it does not lie in the mouth of the petitioners herein now
that the said fact was not a material fact and had no bearing upon the writ
petition filed by them and since this Court in the judgement and order under
review has categorically opined that the said fact is a material one and that
had it been brought into the notice of the writ court, same would have
affected the decision of the writ Court. Thus, under these circumstances, the
contention of the petitioners herein that this Court committed an error on the
face of the record while passing the judgement and order under review is
grossly misconceived and a figment of imagination.
14. Having an overall view of the matter, it cannot, but be said, that the
petitioners herein in essence are seeking re-hearing of the LPA under the
guise of the instant review petition, which, however, is impermissible in law.
15. Viewed thus for what has been observed, considered and analyzed
hereinabove, the judgment and order under review does not call for review.
16. Resultantly petition fails and is, accordingly dismissed.
(RAHUL BHARTI) (JAVED IQBAL WANI)
JUDGE JUDGE
SRINAGAR
14.10.2025
Ishaq
Whether the order is speaking ? Yes
Whether approved for reporting ? Yes
