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Judgment
Mr. N. Paul Vasanthakumar, C.J. This condonation delay application is filed seeking to condone the delay of 05 years and 181 days in filing
the review petition against the order made in LPA No. 243/2006 dated 31.08.2007.
The reason stated in the application seeking to condone delay and filing review petition is that in a connected appeal (LPA No.39/2010) which
was disposed of on 01.05.2010, Division Bench granted liberty to the petitioner for filing appropriate proceedings for recalling/ reviewing of the
order dated 31.08.2007 and if the said order is recalled or reviewed, the result thereof will bind the parties irrespective of dismissal of LPA
No.39/2010.
It is to be seen that the said liberty was granted on 01.05.2010, however, this application seeking condoning delay with review petition was filed
on 30.03.2013. There is no explanation for the delay which had occurred from 01.05.2010 to 30.03.2013. In such circumstances, no ground is
made out to condone the delay.
On merits, learned counsel appearing for the review petitioner argued that the Division Bench judgment dated 31.08.2007 is liable to be
reviewed on the ground that the writ petition (OWP) No.481/2005 filed by the petitioner was not dismissed on merits but on the ground that the
petitioner was having an effective, alternate remedy of filing statutory appeal under Section 7 of the Jammu & Kashmir Migrant's Immovable
Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997, for short the Migrant Act, and the appeal filed pursuant to the said
order of the learned Single Judge under Section 7 of the Migrant Act was dismissed by relying upon the order of the Division Bench dated
31.08.2007. The appeal was filed by the petitioner before the appellate authority during the pendency of the LPA No.243/2006 i.e. on
07.07.2007. The petitioner having filed an appeal before the appellate authority under Section 7 of the Migrant Act during the pendency of the
LPA, he could have very well withdraw the LPA and raise all his contention before the appellate authority.
On perusal of the order of the Division Bench dated 31.08.2007, it is evident that the learned counsel who appeared for the petitioner argued
the LPA on merits and after considering the submissions on merits, the Division Bench gave a finding which reads as follows:
In the agreement to sell it was categorically stipulated that till the entire consideration money was paid the appellant would not be empowered to
take possession of the property in any manner nor he would have the authority to use or construct any house or any property on it in any manner.
The agreement to sell also stipulated that full consideration money would be paid by the first week of January, 1998 failing which the respondent
could forfeit 25% of the earnest money (Rs.50,000.00). The findings recorded by the District Magistrate seen in light of the stipulations in the
agreement to sell leave no room for doubt that the possession of the appellant over the property in question was unauthorized within the meaning of
the Act and it plainly attracted the provisions of Section 5 of the Act.
On hearing Mr. Qayoom, we find no merit in the appeal. It is, dismissed.
The scope of review of an order is very limited and it cannot be a forum to re-argue the matter already decided and this cannot be also used as
a tool for changing the opinion/ view of the Court. The said position is explained by the Hon'ble Supreme Court in the decisions reported in M/s.
Northern India Caterers (India) Ltd., v. Lt. Governor Of Delhi, (1980) 2 SCC 167, Ajit Kumar Rath v. State Of Orissa (1999) 9 SCC
596, Khela Banerjee v. City Montessori School, (2013) 7 SCC 615 and Kamlesh Verma v. Mayawati(2013) 8 SCC 320. In such
circumstances, the review application filed by the petitioner seeking review of the order dated 31.08.2007 with condone delay cannot be
entertained and the same are dismissed.