Jammu & Kashmir High Court - Srinagar Bench
Mushtaq Ahmad Tantray Aged 55 Years S/O ... vs Financial Commissioner And Others on 14 March, 2025
Bench: Vinod Chatterji Koul, Puneet Gupta
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
......
RP no.109/2021
In LPAOW no.33/2017
Dated: 14.03.2025
Mushtaq Ahmad Tantray aged 55 years S/o Mst. Khurshi R/o Natipora,
Srinagar
.........Appellant(s)/Review Petitioner(s)
Through: Mr. Azhar ul Amin, Advocate
Versus
Financial Commissioner and others
......Respondent(s)
Through: Mr. Jahingeer A. Dar, GA
CORAM:
HON'BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE
HON'BLE MR JUSTICE PUNEET GUPTA, JUDGE
JUDGEMENT (ORAL)
1. Review of judgement dated 24th September 2021, in LPAOW no.33/2017, titled as Ghulam Qadir Bhat and others v. Financial Commissioner (Revenue) and others, is sought for on the grounds made mention in the instant petition.
2. We have heard learned counsel for appellant and considered the matter. We have gone through impugned judgement as well.
3. Learned counsel for review petitioner/appellant has stated that this Court while passing judgement under review has committed error in applying the judgement of the Supreme Court to the present case given to the fact that review petitioner had categorically pleaded in the revision petition of acquiring knowledge of fraudulent mutations in the 1 RP no.109/2021 in LPAOW no.33/2017 year 2005 which pleading has not been controverted at all by appellant/review petitioner assuming the entry was made in Parte Patwar on 10th August 1990 BK. In view of unrebutted pleading regarding fact of having acquired knowledge by respondents in 2005 and mutation nno.470 being in derogation of Muslim Personal Law, the application of judgement of the Supreme Court in Joint Collector Ranga Reddy Dist. & Anr. vs. D. Narsing Rao & Ors (2015) 3 SCC 695 to the facts of the instant case is manifestly erroneous. It is also being stated that limitation is applicable to judicial proceedings/courts but not to quasi-judicial proceedings or administrative revision was unreasonably wrong and based on judgement of the Supreme Court in Joint Collector Ranga Reddy v. D. Narsing Rao (supra), allowed writ petition and set-aside the order of Writ Court and orders of Settlement Commissioner and Financial Commissioner. This Court has decided the issue of fact without enquiry and has upset the concurrent findings on the issue of fact. Given to the fact that entry is recorded on Parte Patwar in Gregorian style and not in Bikrimi style without prefixing or suffixing AD or BK on the date, the judgement of this Court has committed error apparent on the face of the record. Learned counsel has also averred that question of limitation was not and could not have been taken up during proceedings before revenue authorities in view of settled legal position as on the date revision was filed/decided. Limitation was first time pleaded by writ petitioners in writ petition based on the judgement of the Supreme Court in Joint Collector Ranga Reddy v. D. Narsing Rao (supra) which not only had prospective operation but is distinguishable from the facts of the present case on 2 RP no.109/2021 in LPAOW no.33/2017 proceedings. Revenue proceedings in J&K are not judicial proceedings and, thus, limitation is not applicable to proceedings before revenue authorities in J&K. Apart, it is being stated that mutation no.470 is fraudulent and it is unrebutted fact that Mst. Khurshi was entitled to a share in the property left behind by her brother, namely, Abdullah and was excluded while attesting mutation no.470. No statement of Mst. Khurshi was recorded at the time of attestation of the said mutation.
4. While considering abovementioned contentions, the scope and ambit of Section 114 read with Order XLVII Rule 1 of the Code of Civil Procedure is to be taken into consideration.
5. The grounds on which review can be sought are enumerated in Order XLVII 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 of the court which passed the decree or made the order."
6. An application for review would lie, among others, when an order suffers from an error apparent on the face of record and permitting the same to continue would lead to failure of justice. Limitations on exercise of 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 3 RP no.109/2021 in LPAOW no.33/2017 absence of any such error, finality attached to the judgment/order cannot be disturbed.
7. 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.
8. It is beyond any doubt or dispute that the review court does not sit in appeal over its own order. A rehearing 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.
9. Nevertheless, in view of contentions of learned counsel for review petitioner, it would be appropriate to first reproduce impugned judgement hereunder:
"1.The judgment and order of the writ court dated 16th March 2017 dismissing OWP No. 1302/2013 Abdul Gani Naik vs. Financial Commissioner (Revenue) and others is under challenge in this Letters Patent Appeal.
2. The controversy raised in this appeal is regarding the two mutations entries No. 156 dated 28 Fag (at places wrongly mentioned as Mag) 1996 Bikrami Samvat. (corresponding to the year 1939-40 AD) and to the mutation entry 470 dated 10.08.1999 which is alleged to be of the 10th day of the 8th month of 1999 Bikrami Samvat (corresponding to the year 1941-42) whereas the other side contends that it is of the year 1999 AD of the Georgian Calendar.
3. It may be pertinent to mention here that the dispute with regard to mutation entry No. 156 has concurrently been held to be correct and maintained by all the authorities below as well the Single Judge. Therefore, in the appeal the dispute only remains with regard to the mutation entry No. 470.4 RP no.109/2021 in LPAOW no.33/2017
4. The sole controversy involved is whether the said entry could have been challenged by way of a revision after more than 70 years if the date of attestation of mutation is taken to be 10.08.1999 Bikrami (which corresponds to 1941-42 AD) or it is within reasonable time from the attestation of the mutation if the date is taken to be
10.08.1999 AD.
5. The sole argument of Mr. M. A. Qayoom, is that the aforesaid mutation No. 470 was attested on 10th day of 8th month of 1999 Bikrami Samvat and not on 10.08.1999 AD and as such the revision against it filed on 01.07.2005 before the Settlement Commissioner under Section 15 of the J&K Land Revenue Act was highly belated and the said mutation could not have been disturbed by filing revision after such a long distance of time.
6. Mr. Azhar-ul-Amin, learned counsel contends that the aforesaid mutation was attested on 10.08.1999 AD and since there is no limitation provided for the revision, it was rightly entertained after 5- 6 years of the said entry. The mutation was rightly modified in accordance with the Muslim Personal Law which was applicable to the parties.
7. In view of the short controversy so involved though it is not necessary to go into the factual background but for the sake of clarity and convenience, it is considered appropriate to narrate the factual position also in brief.
8. In essence, the dispute concerning mutation No. 470 relates to the estate left behind one Abdullah who died issueless. He had a brother Qadir and a sister Khurshi. He had one share in 30 Kanals and 5 marlas of land situate at village Natipora whereas the other two shares belonged to his brother Qadir. On his death, his share was mutated in the name of Qadir vide mutation No. 470.
9. One Mushtaq Ahmad Tantray grandson of sister of the deceased Mst. Khurshi filed a revision before the Settlement Commissioner challenging mutation No. 470 of village Natipora contending that according to the Muslim Law her grandmother was entitled to 1/3rd share in the property of the deceased. The Settlement Commissioner vide order dated 10.02.2006, opined that the personal property of the deceased would have devolved in the ration of 2:1 in favour of his brother Qadir and sister Mst. Khurshi respectively. Therefore, mutation No. 470 recording the entire property of the deceased in the name of brother Qadir is not in accordance with the Muslim Law. The Settlement Commissioner in terms of Section 15 (3) of the J&K Land Revenue Act submitted a reference to the Financial Commissioner who accepted the same vide order dated 21.02.2011 holding that as the parties have accepted that the devolution of the estate would be governed by the Muslim Personal Law, both the brother and the sister will get share in the ratio of 2:1.
10. The writ court while examining the mutation No. 470 treated the said attestation to have been made on 10.08.1999 AD and since the revision was filed on 01.07.2005, held that it was filed within 6 years and since there is no limitation provided for filing the revision under Section 15 of the J&K Land Revenue Act, and there is no inordinate delay and the substantial justice requires that the estate of the 5 RP no.109/2021 in LPAOW no.33/2017 deceased should devolve both upon his brother and sister in the ratio of 2:1, the said mutation need to be corrected accordingly.
11. The petitioner-appellant in filing the writ petition challenging the order of the Settlement Commissioner dated 10.02.2006, order of the Financial Commissioner (Revenue) dated 21.02.2011 and the order of the Naib-Tehsildar dated 14th August 2013 directing for the demarcation of the land on the basis of the modified mutation entry, in paragraph No. 7 of the petition categorically averred that the mutation No. 470 is dated 10.08.1999 Bikrami and this mutation was never objected either by Mst. Khurshi during or by his two sons Rehman and Ali during their life time, therefore, her grandson Mushtaq Ahmad Tantray has no right to object to it after a gap of more than 70 years.
12. The contesting respondents in reply to the writ petition, simply stated that the mutation No. 470 was attested on 10.08.1999 without mentioning whether the said date refers to Bikrami Samvat or to the Georgian Calendar. In response to paragraph No. 7, he simply stated that mutation No. 470 was made clandestinely and fraudulently in the absence of the answering respondents or their ancestors. Since the said attestation is based on fraud, law of limitation would not apply as fraud vitiates everything. He nowhere contended that the said attestation was not made on 10.08.1999 Bikrami.
13. The revenue documents relied upon from the side of the respondents to establish that the aforesaid date refers to the English date inasmuch as everywhere it is mentioned English. The said documents are in Urdu and it is below the signatures appearing therein that the word "English" has been mentioned to denote that it has been signed in English. The date 11.10.1999 is separately mentioned and the word 'English' mentioned there does not refer to the date of the entry.
14. Learned Advocate General Mr D. C. Raina assisted by Mr. Sajad Ashraf, GA. has produced before us the original record containing Parte Patwar and Parte Sarkar to contend that the date 10.08.1999 in respect of mutation No. 470 is of the year 1999 Bikrami and not AD. The said documents have been examined by us in original. They are in Urdu which have been read over carefully by one of us (Hon'ble Justice Koul) who knows Urdu very well and he has explained the documents to the other Hon'ble Judge as well. The said documents do establish that the said mutation was attested on 8th day of 10th month of 1999 Bikrami. There is no reason to disbelieve the said original documents. The above documents are sacrosanct to prove the actual date of the attestation of mutation No. 470. The subsequent mutation entries in respect of the land in question. also supports the fact that the above mutation was attested in 1999 Bikrami and not in 1999 AD. Accordingly, we find that the said attestation was made on the 8th day of the 10th month of the year 1999 Bikrami which corresponds to the year 1941-42 AD. The revision was filed on 01.07.2005 meaning thereby that it was filed after about 63/73 years.
15. In view of the above, the question that arises is even if no limitation is provided for filing a revision, whether the revision could have been entertained after such a long gap of time so as to disturb the entries on the basis of which the property has exchanged hands and many other entries have come to be recorded subsequently. 6 RP no.109/2021 in LPAOW no.33/2017
16. The law of limitation is based upon the public law doctrine that there should be an end to a litigation and that there ought to be finality attained to a decision with the passage of time. The purpose to provide limitation for taking recourse to a legal remedy is not to destroy the rights of parties but to ensure that parties do not resort to dilatory tactics and seek their remedy within the prescribed time or a reasonable time so that the matter may not remain alive forever.
17. In a way, statutes of limitation and prescription are statutes of peace and repose. The interest of state requires that there should be an end to litigation. The public policy therefore requires application of law of limitation. The object of the law of limitation is to prevent disturbance of what has been acquired in equity and justice by long enjoyment and not to restore what may have been lost by party's own inaction.
18. The learned Single Judge in deciding the writ petition has unnecessarily brushed aside his own decision in OWP No. 1833/2015 Mst. Mali v. Financial Commissioner (Revenue) and others on 27.05.2016 wherein he himself held that the delay of 14 years in challenging the mutation entries by way of a revision amounts to inordinate delay and therefore the Financial Commissioner was not justified in overlooking the question of delay in filing the revision.
19. The Apex Court in Joint Collector Ranga Reddy Dist. & Anr. vs. D. Narsing Rao & Ors (2015) 3 SCC 695 has held that even where no limitation is prescribed for invoking the revisional power that will not permit the authorities to exercise the power arbitrarily with inordinate delay.
20. In Zaina vs. Financial Commissioner & Ors. 1983 SLJ 1, this Court in context with the filing of revision under Section 15 of the J&K Land Revenue Act held that though no limitation is prescribed for filing a revision, but it must be filed within the time prescribed for filing appeals and in case there is delay, the revisional court has power to condone it after recording reasons for doing it.
21. The Bombay Land Revenue Code, 1879 also did not provide for any limitation for exercising the revisional power by the Commissioner. The Apex Court in State of Gujarat vs. Patel Raghav Natha & Ors. AIR 1969 SC 1297 held that in spite of the fact the provisions do not prescribe for any limitation for exercising revisional power, this power must be exercised in reasonable time and the length of reasonable time must be determined by the facts of the case.
22. In state of A.P. & Anr. vs. T. Yadagiri Reddy & Ors. (2008) 16 SCC 299, it was held that where the legislature in its wisdom did not fix any time limit for exercising revisional power and inserted the words "at any time" it does not mean that the legislature intended to leave the orders passed under the Act open to alteration and variation for an indefinite period as it would perpetuate uncertainty.
23. In view of the aforesaid case law, the inescapable conclusion is that the revisional powers cannot be exercised arbitrarily after an inordinate delay of the passing of the order sought to be revised.
24. The case at hand is a classic example of inordinate and unreasonable delay in exercise of revisional power. The said power has been exercised without recording any satisfaction as to the delay in 7 RP no.109/2021 in LPAOW no.33/2017 exercising it more particularly when the two earlier generations of the revisionist have not come forward to object to the mutation or to challenge it by filing a revision. Thus, it is a clear case of unreasonable delay in exercise of revisional power.
25. A complete procedure for maintaining the records or the annual record of rights is provided under the J&K Land Revenue Act. The scheme of the above Act clearly provides that the dispute as to the mutation has to be decided by the revenue authorities in a summary manner and that the final order passed by the Revenue Officer as to who is best party entitled to the property is always subject to any decree or order that may be subsequently passed by any civil court of competent jurisdiction. Section 32 of the J&K Land Revenue Act also authorizes a person aggrieved by any entry appearing in the revenue records to institute a suit before the Collector (Deputy Commissioner) for the correction of the record, and for the possession of the right claimed if he is not in possession.
26. It may be noted that the mutation entries have not been recognized as document of titles of property. They are simply meant for fiscal purposes to enable the Government to collect revenue. These entries do not either create any right, title or interest in the land of any party nor do they extinguish any such right of any party. The said entries are always subject to the decree of a civil court of competent jurisdiction. Therefore, whenever a long standing revenue entry is sought to be disturbed, it is always by way of a declaratory suit before the competent court.
27. In view of the aforesaid facts and circumstances, we are of the opinion that the writ court as well as the revisional courts have manifestly erred in law in exercising their power and in directing for the modification of the mutation entry No. 470 attested on 10th day of the 8th month of 1999 Bikrami Samvat. The judgment and order of the learned Single Judge dated 16th March 2017 passed in OWP No. 1302/2013 is hereby quashed and so are the orders of the Settlement Commissioner dated 10th February 2006 and the Financial Commissioner dated 21st February 2011 are quashed.
28. The appeal is allowed with no order as to costs."
10.This Court while going through the factual position of the case found and said that dispute regarding mutation No.470 relates to the estate left behind by one Abdullah who died issueless. He had a brother Qadir and a sister Khurshi. He had one share in 30 Kanals and 5 marlas of land situate at village Natipora whereas the other two shares belonged to his brother Qadir. On his death, his share was mutated in the name of Qadir vide mutation No. 470. It was also observed by this Court that one, Mushtaq Ahmad Tantray grandson of sister of deceased Mst. Khurshi, 8 RP no.109/2021 in LPAOW no.33/2017 filed a revision before Settlement Commissioner challenging mutation No.470 of village Natipora, contending that according to Muslim Law her grandmother was entitled to 1/3rd share in the property of deceased. Settlement Commissioner vide order dated 10.02.2006, opined that personal property of deceased would have devolved in the ratio of 2:1 in favour of his brother Qadir and sister Mst. Khurshi respectively and therefore, mutation No.470 recording entire property of deceased in the name of brother, Qadir, is not in accordance with Muslim Law. The Settlement Commissioner in terms of Section 15 (3) of the J&K Land Revenue Act submitted a reference to the Financial Commissioner who accepted the same vide order dated 21.02.2011 holding that as the parties have accepted that the devolution of the estate would be governed by the Muslim Personal Law, both the brother and the sister will get share in the ratio of 2:1. It was also observed by this Court that the Writ Court while examining mutation No.470 treated the said attestation to have been made on 10.08.1999 AD and since revision was filed on 01.07.2005, held that it was filed within six years and since there is no limitation provided for filing the revision under Section 15 of J&K Land Revenue Act, and there is no inordinate delay and substantial justice requires that the estate of the deceased should devolve both upon his brother and sister in the ratio of 2:1, the said mutation need to be corrected accordingly. This Court also observed that petitioner-appellant in filing the writ petition challenging the order of the Settlement Commissioner dated 10.02.2006, order of the Financial Commissioner (Revenue) dated 21.02.2011 and the order of the Naib-Tehsildar dated 14th August 2013 directing for the 9 RP no.109/2021 in LPAOW no.33/2017 demarcation of the land on the basis of the modified mutation entry, in paragraph No. 7 of the petition categorically averred that the mutation No. 470 is dated 10.08.1999 Bikrami and this mutation was never objected either by Mst. Khurshi during or by his two sons Rehman and Ali during their life time, therefore, her grandson Mushtaq Ahmad Tantray has no right to object to it after a gap of more than 70 years. The documents in the shape of Parte Patwar and Parte Sarkar were examined by this Court, which established that mutation was attested on 8th day of 10th month of 1999 Bikrami. There was no reason to disbelieve those documents inasmuch as those documents were sacrosanct to prove the actual date of the attestation of mutation No.470. Subsequent mutation entries in respect of the land in question also supported the fact that mutation was attested in 1999 Bikrami and not in 1999 AD. Accordingly, this Court found that the attestation was made on 8th day of 10th month of 1999 Bikrami which corresponds to the year 1941-42 AD. The revision was filed on 01.07.2005 meaning thereby that it was filed after about 63/73 years.
11.This Court after deliberating upon factual aspects of the matter, discussed the law governing limitation. This Court made reference to Joint Collector Ranga Reddy v. D. Narsing Rao (supra) in which it was held that even where no limitation was prescribed for invoking revisional power that would not permit authorities to exercise the power arbitrarily with inordinate delay. This Court also placed reliance on Zaina v. Financial Commissioner and others, 1983 SLJ 1; State of Gujarat v. Patel Raghav Natha and others, AIR 1969 SC 1297; and A.P. and another v. T. Yadagiri Reddy and others, (2008) 16 SCC 299 10 RP no.109/2021 in LPAOW no.33/2017 and came to the conclusion that revisional powers cannot be exercised arbitrarily after an inordinate delay of passing of the order sought to be revised. This Court opined that instant case was a classic example of inordinate and unreasonable delay in exercise of revisional powers as those powers had been exercised without recording any satisfaction about delay in exercising it, more particularly when two earlier generations of revisionist had not come forward to object to the mutation or to challenge it by filing a revision and thus it was a clear case of unreasonable delay in exercise of revisional power. This Court also made it clear that mutation entries had not been recognized as document of titles of property inasmuch as those were simply meant for fiscal purposes to enable the Government to collect revenue. Those entries did not either create any right, title or interest in the land of any party nor did they extinguish any such right of any party. The said entries were always subject to the decree of a civil court of competent jurisdiction and thus, whenever a long-standing revenue entry was sought to be disturbed it was always by way of a declaratory suit before the competent court. On observing and holding so, this Court dismissed the appeal.
12.While considering scope and ambit of Section 114 CPC read with Order 47 Rule 1 CPC, the Supreme Court in Haridas Das v. Usha Rani Banik (Smt.) and Others, (2006) 4 SCC 78, observed and held as under:
"14. In Meera Bhanja v. Nirmala Kumari Choudhury, (1995) 1 SCC 170 it was held that:
"8. It is well settled that the 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. In connection with the limitation of the powers of the court under Order 47 Rule 1, while dealing with similar jurisdiction available to the High Court while seeking to review the orders under Article 226 of the Constitution, this 11 RP no.109/2021 in LPAOW no.33/2017 Court, in AribamTuleshwar Sharma v. Aribam Pishak Sharma, (1979) 4 SCC 389 speaking through Chinnappa Reddy, J. has made the following pertinent observations:
'It is true there is nothing in Article 226 of the Constitution to preclude the High Court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found, it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a court of appeal. A power of review is not to be confused with appellate power which may enable an appellate court to correct all manner of errors committed by the subordinate court.'
15. A perusal of Order 47 Rule 1 shows that review of a judgment or an order could be sought: (a) from the discovery of new and important matters or evidence which after the exercise of due diligence was not within the knowledge of the applicant; (b) such important matter or evidence could not be produced by the applicant at the time when the decree was passed or order made;
and (c) on account of some mistake or error apparent on the face of the record or any other sufficient reason."
13.An error requiring for its establishment a long-drawn process of reasoning on points where there may conceivably be two opinions, can hardly be said to be an error apparent on the face of the record. An error that 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 record justifying the court to exercise its power of review under Order XLVII Rule 1 CPC. In exercise of jurisdiction under Order XLVII 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'. [Vide:
Aribam Tuleshwar Sharma v. Aribam Pishak Sharma, AIR 1979 SC 1047; Satyanarayan Laxminarayan Hegde v. Millikarjun Bhavanappa 12 RP no.109/2021 in LPAOW no.33/2017 Tirumale, AIR 1960 SC 137, and Parsion Devi v. Sumitri Devi, (1997) 8 SCC 715].
14. The Supreme Court again in Lily Thomas v. Union of India, (2000) 6 SC 224, held that power of review could be exercised to correct a mistake but not to substitute a view. Such powers could be exercised within limits of statute dealing with exercise of power. It was further observed that the words "any other sufficient reason" appearing in Order XLVII 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 Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius, AIR 1954 SC 526.
15. Section 114 CPC provides for a substantive power of review by a civil court and consequently by appellate courts. Section 114 says:
"114. Review. --Subject as aforesaid, any person considering himself aggrieved, --
(a) by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed by this Code,
(c) by a decision on a reference from a Court of Small cause, may apply for a review of judgment to the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit."
16. The words "subject as aforesaid" occurring in Section 114 of the Code mean 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 XLVII 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 XLVII Rule 1 CPC.
13 RP no.109/2021 in LPAOW no.33/2017
17. 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 statute dealing with the exercise of power. The review cannot be treated like an appeal in disguise. It cannot be denied that review is creation of a Statute. In Patel Narshi Thakershi v. Pradyumansinghji Arjunsinghji, (1971) 3 SCC 844, the Supreme Court has held that power of review is not an inherent power. It must be conferred by law either specifically or by necessary implication. The review is also not an appeal in disguise. 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 for review petitioner/appellant was unable to suggest any clear-cut rule by which the boundary between the two classes of errors could be demarcated. The term "mistake or error apparent" by its very implication indicates an error which is evident per se from the record of the case and does not require detailed examination, scrutiny and elucidation either of facts or legal position. If an error is not obvious 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 XLVII Rule 1 CPC. 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 on a point of fact or law. In any case, while exercising the 14 RP no.109/2021 in LPAOW no.33/2017 power of review, the court cannot sit in appeal over its judgment/ decision.
18. The Supreme Court in Ram Sahu (Dead) through LRs and others v. Vinod Kumar Rawat and others, 2020 SCC OnLine SC 896 , after discussing slew of judgements on the subject of review, has held that 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 XLVII Rule 1 CPC itself. The power of review cannot be exercised as an inherent power nor can an appellate power be exercised in the guise of power of review. After holding this, the Supreme court found that High Court overstepped jurisdiction vested in the Court under Order XLVII Rule 1 CPC.
19. The Supreme Court in S. Murali Sundaram v. Jothibai Kannan, (2023) SCC Online SC 185, relied upon Perry Kansagra v. Smriti Madan Kansagra, (2019) 20 SCC 753, to observe that while exercising review jurisdiction, the Review Court does not sit in an appeal over its own order. It was observed that a rehearing of the matter was impermissible in law and the same cannot be considered as an appeal in disguise. It was further clarified that the power of review can be exercised for correction of a mistake but not to substitute a view, thus, the same was wholly unjustified to rewrite a judgement by which the controversy had already been decided. The Supreme Court stated that the Madras High Court had exceeded its review jurisdiction while deciding the review application which is wholly impermissible.
20. In the backdrop of above well-settled legal position, all that has been argued by counsel for applicant/review petitioner and/or mentioned in 15 RP no.109/2021 in LPAOW no.33/2017 the instant review petition, is that this Court should reopen the findings recorded in the judgement, review of which is sought. It is made clear here that review jurisdiction cannot be used for that purpose. This is not the scope of Section 114 read with Order XLVII Rule 1 CPC. After having an overall view of the grounds taken in the application and submissions made by learned counsel for review petitioner, there is no error apparent on the face of record warranting review of the judgement dated 24th September 2021. In such circumstances, the instant review petition is liable to be dismissed.
21. For the reasons discussed above, we do not find any merit in this petition seeking review of judgement dated 24th September 2021, and the same is, accordingly, dismissed.
(Puneet Gupta) (Vinod Chatterji Koul)
Judge Judge
Srinagar
14.03.2025
"Ajaz Ahmad, Secy"
Whether approved for reporting? Yes
16
RP no.109/2021
in LPAOW no.33/2017