Jammu & Kashmir High Court - Srinagar Bench
Review vs Ghulam Mohammad Langoo on 25 August, 2021
Author: Vinod Chatterji Koul
Bench: Vinod Chatterji Koul
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
...
RP no.62/2021
CM no.4100/2021;4101/2021
Reserved on: 06.08.2021
Pronounced on: 25.08.2021
Abdul Aziz Khan and another
.........Review Petitioner(s)
Through: Mr Nisar Ahmad, Advocate
Versus
Ghulam Mohammad Langoo
.........Respondent(s)
Through: Mr M.A.Qayoom, Advocate
with Mr M. Tufail, Advocate
CORAM:
HON'BLE MR. JUSTICE VINOD CHATTERJI KOUL, JUDGE
JUDGEMENT
1. Review of judgement dated 28th May 2021, passed by this Court in CIA no.25/2013, titled as Abdul Aziz Khan and another v. Ghulam Mohammad Langoo, is sought for in petition on hand.
2. I have heard learned counsel for parties and considered the matter.
3. It would be apropos to have succinct glimpse of factual milieu, given case set up by review petitioners. Genesis of case relates to a shop and room, with respect whereof a civil suit titled Ghulam Mohammad Langoo v. Abdul Aziz Khan, was filed, in which a judgement and decree dated 28th December 2012 was passed by Additional District Judge Srinagar. The judgement and decree dated 28th December 2012 was set- aside qua partial eviction and suit of plaintiff-respondent was decreed and allowed by this Court vide judgement dated 28th May 2021, of which review is sought by appellants/review petitioners.
4. Learned counsel for appearing for review petitioners has stated this Court has not recorded issue-wise finding which is mandate of law inasmuch as appellate court has jurisdiction to reverse or affirm 2 RP no.62/2021 findings of Trial Court and first appeal is a valuable right of parties and the whole case is therein open for rehearing, both on question of fact and law. However, there is no issue-wise finding rendered by this Court and the same is contrary to provision of Order XLI of the Code of Civil Procedure, which error is apparent on the face of record. It is contended that judgement and decree dated 28th December 2012 passed by Trial Court, was bereft of requirement of Order XX, CPC, as Trial Court had not even referred to statement of witnesses adduced by parties. It is also stated that judgement, of which review is sought, has been passed mostly on subsequent development, by which petitioner no.1 during pendency of suit transferred property in the name of petitioner no.2 and that no issue was framed by the Trial Court on subsequent development, and therefore, this Court was supposed to strict the appeal to the issues framed by the Trial Court. And even if it is assumed that any issue was to be considered by the Trial Court as well by this Court, then same would have been with regard to attornment of tenant to records which suggests that his possession has been recorded in revenue records.
5. Learned counsel for review petitioners also contends that Trial Court initially framed 12 issues and thereafter basic issue pertaining to eviction suit was framed on 21st July 2006 as the said issue was with regard to comparative advantage and disadvantage of parties in case of ejectment of defendants/petitioners from suit premises. It is averred that petitioners proved aforesaid issue before the Trial Court by leading cogent evidence and it was specifically proved by petitioners that sons of plaintiff/respondent were doing their business as two sons were conducting business the shop adjacent to the suit premises and had also purchased commercial building in Qamarwari, Srinagar, in which he has adjusted two others sons and other shops had been rented out and it was also proved that plaintiff was a man of substance and had also purchased the land, but the Trial Court did not choose to render any finding on aforesaid issue and even did not choose to refer the said issue in impugned judgement. It is asserted that this Court while passing 3 RP no.62/2021 judgement, under review, has referred the aforesaid issue but did not choose to consider it and therefore, the said issue remained undecided.
6. Learned counsel for review petitioners also avers that it was fully proved by petitioners that plaintiff/ respondent has no bona fide requirement of suit premises and it is also proved by petitioners that suit premises is their only source of livelihood and it was also proved that sons of plaintiff do not require the suit premises. He maintains that the cases are to be pleaded, conducted and decided in terms of the procedure prescribed under law and once plaintiff failed to prove his bona fide requirement, there is no question of tenant dictating the terms to landlord. He insists that this Court, while passing judgement, under review, has observed that if a landlord is in genuine and bona fide need of a tenanted portion, a tenant cannot legally raise the issue that the space available with landlord is adequate. He states that expression used as "genuine and bona fide need" which is to be established during trial and, therefore, this court has to scan evidence led before Trial Court. However, there is no such evaluation nor any analysis of facts with regard to evidence and points urged and judgment deserves to be reviewed, as such.
7. It is pertinent to mention here that 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.
8. 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."4 RP no.62/2021
9. 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 absence of any such error, finality attached to the judgment/order cannot be disturbed.
10.The power of review can also be exercised by the court in the event discovery of new and important matter or evidence takes place that despite exercise of due diligence was not within the knowledge of 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.
11.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.
12. Given contentions of learned counsel for applicants/review petitioners, it would be apt to mention here that the Court while rendering the judgement under review, has comprehensively discussed all facets of the matter. Insofar as submissions made by learned counsel for applicants / review petitioners and averments made in review petition are concerned, those are not the grounds that would portray or depict or show error apparent on the face of record but an Appeal under the guise of review petition.
13. The Supreme Court in Haridas Das vs. Usha Rani Banik (Smt.) and Others, (2006) 4 SCC 78, while considering the scope and ambit of Section 114 CPC read with Order 47 Rule 1 CPC observed and held as under:
5 RP no.62/2021"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 Court, in Aribam Tuleshwar 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."
14. An error which has to be established by 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 Tirumale, AIR 1960 SC 137, and Parsion Devi v. Sumitri Devi, (1997) 8 SCC 715].6 RP no.62/2021
15. Again, the Supreme Court in Lily Thomas vs. 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 vs. Neki, AIR 1922 PC 112 and Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius, AIR 1954 SC 526 .
16. Section 114, CPC, provides for a substantive power of review by a civil court and consequently by appellate courts. Section 114 envisions:
"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."
17. 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.
18. 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 the review is the creation of a statute. In the case of Patel Narshi Thakershi vs. 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 7 RP no.62/2021 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 on either side were 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 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 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 47 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 power of review, the court concerned cannot sit in appeal over its judgment/decision. [See: Inderchand Jain vs. Motilal, (2009) 14 SCC 663; T.C. Basappa vs. T.Nagappa, AIR 1954 SC 440; Hari Vishnu Kamath vs. Ahmad Ishaque, AIR 1955 SC 233; Thungabhadra Industries Ltd. v. Govt. of A.P., AIR 1964 SC 1372; Meera Bhanja v. Nirmala Kumari Choudhury, (1995) 1 SCC 170; State of West Bengal and Others vs. Kamal Sengupta and Anr., (2008) 8 SCC 612; Rajah Kotagiri Venkata Subbamma Rao v. Rajah Vellanki Venkatrama Rao (18991900) 27 IA 197; Hari Sankar Pal v. Anath Nath Mitter, 1949 FCR 36; K. Ajit Babu v. Union of India, (1997) 6 SCC 473; Ajit Kumar Rath v. State of Orissa, (1999) 9 SCC 596 and Gopal Singh v. State Cadre Forest Officers' Assn., (2007) 9 SCC 369 ].
19. 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 8 RP no.62/2021 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 powers 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.
20. In the backdrop of above well-settled legal position, all that has been argued by learned counsel for applicants/review petitioner is that this Court should re-open the findings recorded in the judgement under review. 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 petitioners, there is no error apparent on the face of record warranting review of judgement dated 28th May 2021. In such circumstances, review petition on hand is liable to be dismissed.
21. For the reasons discussed above, I do not find any merit in the instant petition seeking review of judgement dated 28th May 2021 and the same is, accordingly, dismissed.
(Vinod Chatterji Koul) Judge Srinagar 25.08.2021 Ajaz Ahmad, PS Whether the order is reportable: Yes/No.