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
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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
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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
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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.
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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
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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.
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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
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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,
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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
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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
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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, this11
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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
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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.
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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
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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
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