Ali Mohmmad Wani vs Qazi Abdul Rashid

In civil Revision petition 33/96 titled Ali Mohmmad Wani Vs. Qazi Abdul Rashid, Single Bench of this court presided over by Hon'ble Justice

A.Q.Parray passed the following order:""Mr. H.I.Hussain.

This Revision is delayed by one year and has been filed only to protract the proceedings pending in the court below. So it is being dismissed for

want of prosecution and being time barred. Record of the file be sent back alongwith copy of this order. File be consigned to records.

Srinaqar 5121996. Sd/A.Q.ParrayJ

Petitioner through counsel has moved the instant motion for review of the above order. The grounds for review put forth are that the petitioner's

counsel reached late in High Court at 11.45A.M.,, when the case had been already taken up and above order of dismissal passed. The

observation of the Hon'ble Court that revision petition has been filed beyond one year, is not based on facts, in so far as the order of District Judge

Srinagar sought to be revised in the revision petition, is dated 6.4.1996 and the revision petition has been filed in the High Court on 1.7.96 well

within period of limitation prescribed by Rule 50(2) of High court Rules. This observation of the High Court is an error apparent on the face of

record, hence the order required to be reviewed.

Counsel for respondents, Mr. H.I.Hussain submits that as the order sought to be reviewed has been passed by Hon'ble Justice A.Q.Parray,

who has ceased to be the Judge of the court, therefore, the application cannot be heard by this Bench. However, this contention is not tenable in

so far as the case has been assigned to this Bench under the orders of Hon'ble Justice persuant to the orders passed thereto under Rule 51(5) of J

and K High court Rules.

Mr. Nehvi, submits that as the court has dismissed the revision for being time barred on account of an error apparent on record, therefore, order

merits to be reviewed.

Mr. H.I.Hussain, counsel for respondents submits that order in question is in two parts. The dismissal of the revision petition is based not only

on ground of revision being time barred, but also for nonappearance and default in prosecution by the revision petitioner. The, counsel conceds

that the observation of the court that the revision petition is time barred, is not supported by the facts of the case. Instead the revision against order

dated: 6.4.1996 of District Judge, Srinagar filed on 1.7.1996 is within 90 days prescribed period as laid down by Rule 52(2) of the High Court

Rules.

The counsel for respondents contends that the review petition is incompetent, in so far as the order sought to be reviewed also incorporate

dismissal of revision for want of prosecution. As per applicant's own case as placed before the court in the application for review, the revision

petitioner's counsel was not present when the case was called. The remedy was to seek restoration of the revision petition rather than review of the

order. Petitioner has not even made out any cause muchless sufficient cause for his absence on the material date and time before the court. Besides

the counsel also submits that the application for review is not supported by the prescribed certificate of the Advocate.

From record it is seen that revision has been dismissed not only for delay but also for nonprosecution. Nonappearance and nonprosecution of

the revision petition in the facts and circumstances of the case, cannot be subject to review though setting aside of order for dismissal of

nonprosecution could have been solicited and prayed for through the proper restoration motion and that is not the case here. Even so rjo sufficient

cause has been made out to warrant setting aside of the order.

Rule 51(2) of the High Court Rules inter alia provide that an application for review of judgment or order shall contain a certificate by the

Advocate of the Court in the prescribed form as under:

I.... Advocate for the above named..... petitioner do hereby certify that I have perused the judgment and the relevant record of the case and in my

opinion the grounds contained in the petition are good and sufficient for the review sought.

The Rule provides that incase aforementioned prescribed certificate is not appended or attached or placed with the petition/application, court

shall not entertain the review petition/application. The Rule is couched in mandatory form. In absence of the certificate the court is barred to

entertain the review. In Bashir Ahmad Dar Vs. State and others, SLJ 1985 J and K 100, the D.B. of this court observed.

....The language of Rule 51 is mandatory and it is ordered by this Rule that ""no such application shall be entertained by the court without the

aforesaid certificate."" The form of the certificate is also prescribed by the Rule. We, therefore, are not inclined to entertain this review petition

because it does bear the certificate of the Advocate as required by Rule 51 of the Jammu and Kashmir High Court Rules. The petition is,

therefore, dismissed....

The reference to AIR 1998 S.C. 1353 by the counsel for petitioner, is not going to advance his case any further on the question of his

noncompliance with Rule 51{2) of the High court Rules and his failure to prove sufficiency, reasonable cause for his nonappearance on material

date namely 5.12.1996. The Apex Court in above case laid down that liberal approach should be adopted while applying the norms and standards

in the matter of sufficient ""cause test"" in condoning the delay within the context of section 5 of Limitation Act. The reason for adopting such justice

oriented approach have been also spelled out.

Another case referred is AIR 1998 J and K 84. In this case the court held that where an application for readmission of appeal alongwith

application for condonation of delay has been dealt with U/S 151 of CPC and not U/S 5 of Limitation Act, review petition cannot lie as same

cannot be held to be an error apparent on face of record. The court also held that while application for condonation of delay for readmission of

appeal was decided and a definite finding returned on the question of sufficient cause, same cannot be looked into over again in exercise of powers

of jurisdiction. This authority is not also applicable to the case since neither question of condonation of delay nor exercise of powers under Section

151 CPC arises in the facts and circumstances of this case.

Third case referred by the counsel for petitioner is AIR 1984 Patna 354, which relates to a matter where one of plaintiff had died during the

pendency of suit and despite application for substitution of his legal representatives having been taken note of by the court, the suit continued and

was decreed in the name of deceased plaintiff, the court held that the inadvertence in not passing formal order in brining heirs of deceased plaintiff

on record, is a clerical error which can be corrected U/S I5l and 152 CPC. Obviously, the authority has no application to the facts and

circumstances of the case. In the result, the review petition is dismissed. Inform the court below of the decision, while sending back the record.