Zahid Hussain Jan v. U.T. of J&K & Ors.

Tulsi Bagh, Srinagar. A further direction was sought to restrain the respondents from evicting him from the allotted Government accommodation, i.e., Quarter No. 4-L, situated at Tulsi Bagh, Srinagar.

03. The said writ petition was considered and dismissed vide order dated

11.10.2024 on the ground that the petitioner had concealed the fact that he had earlier filed a writ petition, i.e., OWP No. 235/2015, seeking the same relief, i.e., peaceful possession of the petitioner and his family over Set/Flat 4-L, Tulsi Bagh, Srinagar. This writ petition was dismissed vide judgment dated 18.02.2021 by the Division Bench of this Court with a direction to the petitioner to handover the possession of the Government accommodation. The petitioner had suppressed these material facts and RP No. 75/2024 had not approached the Court with clean hands, accordingly, the writ petition was dismissed with costs of Rs. 20,000/-.

04. In the present review petition, the petitioner contends that the relief claimed in the earlier writ petition, i.e., WP(C) No. 2303/2024 was different, as it was filed based on an apprehension of eviction, not an actual notice. He submits that non-disclosure of the earlier writ petition was not intentional, especially since the respondents had passed a consideration order in terms of the judgment in a related petition, i.e., WP(C) PIL No. 17/2020, and he had continued in occupation of the accommodation since 2021. According to him, the cause of action in both the cases were different, and therefore, the judgment dated 11.10.2024 requires to be reviewed.

05. Heard learned counsel for the parties and perused the record.

06. The record reveals that the petitioner had earlier filed a writ petition, i.e., OWP No. 2357/2015, wherein he prayed for a writ of prohibition restraining the respondents from disturbing the peaceful possession of the petitioner and his family over the Set/Flat No. 4-L, Tulsi Bagh, Srinagar and also sought a direction to the respondents to provide him security and to frame a fair and transparent policy for providing security to persons facing threat perception, and to implement the same in letter and spirit. The said writ petition was dismissed by the Hon’ble Division Bench of this Court on 18.02.2021, holding that there was no merit in the petition. The interim directions were also vacated and, as a necessary corollary, the petitioner’s continued occupation of the Government accommodation was held to be bad in law. The petitioner was also directed to hand over possession of the said accommodation within one month.

07. Thereafter, the petitioner filed another writ petition, i.e., WP(C) No. 2303/2024, seeking directions to allow him to continue in Government RP No. 75/2024 accommodation and to quash the eviction notice dated 21.09.2024, however, the petitioner failed to disclose the fact of the earlier writ petitions filed and adjudicated on the same subject matter.

08. Learned counsel for the respondents brought to the notice of the Court the filing and dismissal of the earlier writ petition and submitted that the petitioner had not approached the Court with clean hands. This Court, upon considering the fact that the petitioner had failed to disclose the earlier proceedings and had suppressed material facts, dismissed the writ petition with costs of Rs. 20,000/- to be paid by the petitioner.

09. The grounds on which review is sought and the contentions raised are to be considered in terms of Rule 65 of the J&K High Court Rules, 1999. Rule 65 reads 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 XLVII Rule I of the Code.”

10. The scope of review, as envisaged under Order XLVII Rule 1 of the Code of Civil Procedure, is very limited and must be confined strictly to the grounds enumerated therein. An application for review would lie only if there is an error apparent on the face of the record or for any other sufficient reason, the non- consideration of which would result in a failure of justice. A review cannot amount to a re-hearing of the appeal, re-appraisal of findings, or re-evaluation of evidence on record, and identifying errors of that nature would fall within the ambit of appellate jurisdiction, which the review court does not possess.

11. The Hon’ble Apex Court, in “Kamlesh Verma v. Mayawati”, (2013) 8 SCC 320, while observing that review proceedings have to be strictly confined to the scope and ambit of Order XLVII Rule 1 of the Code of Civil Procedure, summarized the governing principles as under: “Summary of the principles: RP No. 75/2024

20. Thus, in view of the above, the following grounds of review are maintainable as stipulated by the statute: 20.1. When the review will be maintainable: (i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him; (ii) Mistake or error apparent on the face of the record; (iii) Any other sufficient reason. The words “any other sufficient reason” have been interpreted in Chhajju Ram v. Neki [(1921-22) 49 IA 144 : (1922) 16 LW 37 : AIR 1922 PC 112] and approved by this Court in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius [AIR 1954 SC 526 : (1955) 1 SCR 520] to mean “a reason sufficient on grounds at least analogous to those specified in the rule”. The same principles have been reiterated in Union of India v. Sandur Manganese & Iron Ores Ltd. [(2013) 8 SCC 337 : JT (2013) 8 SC 275] . 20.2. When the review will not be maintainable: (i) A repetition of old and overruled argument is not enough to reopen concluded adjudications. (ii) Minor mistakes of inconsequential import. (iii) Review proceedings cannot be equated with the original hearing of the case. Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error. The mere possibility of two views on the subject cannot be a ground for review. The error apparent on the face of the record should not be an error which has to be fished out and searched. The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition. Review is not maintainable when the same relief sought at the time of arguing the main matter had been negative.” (iv) (v) (vi) (vii) (viii) (ix)

12. The grounds taken in the present review petition are a repetition of the earlier submissions and touch upon the merits of the case already adjudicated upon in the writ petition. The same cannot be re-agitated in review jurisdiction, as that would amount to an appeal in disguise, which is impermissible in law. In RP No. 75/2024 fact, the petitioner, under the guise of review, is seeking to re-agitate and re- argue the questions that have already been addressed and decided.

13. In “M/s Jain Studios Ltd. V. Shin Satellite Public Com. Ltd.’, AIR SCW 2006, 3592, Hon’ble the Supreme Court has held that: “11. So far as the grievance of the applicant on merits is concerned, the learned counsel for the opponent is right in submitting that virtually the applicant seeks the same relief which had been sought at the time of arguing the main matter and had been negatived. Once such a prayer had been refused, no review petition would lie which would convert rehearing of the original matter. It is settled law that the power of review cannot be confused with appellate power which enables a superior Court to correct all errors committed by a subordinate Court. It is not rehearing of an original matter. A repetition of old and overruled argument is not enough to reopen concluded adjudications. The power of review can be exercised with extreme care, caution and circumspection and only in exceptional cases.”

14. The submission that the non-disclosure was not intentional, and that the continuation order was passed thereafter, is also without merit and does not come to the aid of the petitioner. The petitioner has already argued on these grounds, when it was pointed out by the respondents that he had to handover the possession of Government accommodation in terms of judgment dated 18.02.2021.

15. In light of the aforesaid, this Court is of the considered view that the grounds raised by the review petitioner do not fall within the limited scope of review. The petitioner is, in fact, seeking to re-agitate the merits of the case, which is not permissible.

16. Learned counsel for the petitioner prays that he is unable to pay the cost imposed, therefore, in the interest of justice, the costs are modified and reduced to Rs. 5,000/-, to be deposited by the petitioner. RP No. 75/2024

17. In view of the aforesaid, there is no merit in this review petition and the same is, accordingly, dismissed. (Sindhu Sharma) Judge Jammu: 26.11.2025 Michal Sharma/PS Whether approved for reporting : Yes/No