Abdul Ahad Shera and others v. State of J&K

disposed of. The Writ Court held that since substantial issues raised by writ petitioners/review petitioners had already been addressed by official respondents and as the work of public importance connecting two remote villages by a link road could not be stalled and, therefore, disposed of writ petition, directing Deputy Commissioner, Ganderbal, to look into the nature of complaint of writ petitioners/review petitioners who were permitted to place all the material in support of RP no.114/2021 their plea that Kahcharai land had been converted into a proprietary land to benefit some individuals and to take a decision on merits.

Feeling aggrieved of the Writ Court judgement dated 1st March 2017, review petitioners filed an Appeal, being LPAOW no.35/2017. The said LPA, vide judgement dated 12th October 2021 has been dismissed.

According to learned counsel for review petitioners, this Court has committed an error and mistake while upholding finding of the Writ Court that the only grievance of petitioners was that official respondents in connivance with private respondents were guilty of misappropriation of huge public funds when their specific and actual grievance was that the construction of an eight kilometers long road from Village Thune to Pati-Badipathri was nothing but a wasteful expenditure and not in the overall interest of the village in question. Leaned counsel has also stated that this Court has also committed mistake by holding that Government is free to use the land reserved for grazing purposes in a particular village for any other common public purpose like construction of road.

Learned counsel for review petitioners also states that this Court has committed serious error and mistake as no finding has been recorded to the effect that under PMGSY Scheme and guidelines issued by Government of India, Ministry of Rural Development, the spirit and objective of the Scheme is to provide an all-weather connectivity to unconnected habitations int eh rural area with population of designated size. He also submits that judgements cited by counsel for appellants/ review petitioners have altogether been ignored by this Court while passing the judgement.

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.

The grounds on which review can be sought are enumerated in Order XLVII Rule 1 CPC, which reads as under: RP no.114/2021

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.

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.

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.

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 judgement 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. In view of contentions of learned counsel for review petitioners, it would be appropriate to say that this Court while rendering the judgement, review of which is sought, has comprehensively discussed all aspects of the matter. Insofar as submissions made by learned counsel for review petitioners and averments made in review petition RP no.114/2021 are concerned, those are not the grounds that would depict or show error apparent on the face of record but an Appeal under the guise of review petition.

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: “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.

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 RP no.114/2021 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].

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.

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. RP no.114/2021

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 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 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 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 judgement 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 cannot sit in appeal over its judgment/ decision.

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 powers of review RP no.114/2021 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.

In the backdrop of above settled legal position, all that has been argued by learned counsel for review petitioners is that this Court should re- open the findings recorded in the judgement. 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 the judgement dated 12th October 2021. In such circumstances, the instant review petition is liable to be dismissed.

For the reasons discussed above, I do not find any merit in this petition seeking review of judgement dated 12th October 2021, and the same is, accordingly, dismissed. (Vinod Chatterji Koul) (Pankaj Mithal) Judge Chief Justice Srinagar 16.09.2022 Ajaz Ahmad, PS Whether approved for reporting? Yes/No RP no.114/2021