Mohammad Himayun Gani (Dr.) vs State and Others

Mohammad Yaqoob Mir, J.—By medium of this petition, the order dated 28.5.2010 sought to be reviewed is quoted here-under:

I have heard the attorney of the Petitioner and gone through the writ petition as also connected documents. On consideration of the grounds

projected in the petition, I am satisfied that the petition deserves to be admitted to hearing.

Admit. Post admission notice. Counter within four weeks. Rejoinder, if any, within one week thereafter.

List after ensuing summer vacation

Record of the proceedings of the instant petition would indicate that on 22.3.2011, due to non availability of the counsel for the Respondents

Mr. A. M. Magray, Sr. AAG, request on his behalf was made by Mr. Thakur, GA, for listing the case next week. Petitioner had insisted that the

matter may not be treated as part heard so that the Registry is free to list the matter before any other available Bench and it was recorded ""Registry

to list the matter in accordance with rules."" Petition was listed on 29.3.2011 before this Bench but it was directed that it shall be listed in terms of

order dated 22nd March, 2011. The object was that matter shall be placed before the Bench which has passed the order.

Again the matter was listed on 11.4.2011 before another Coordinate Bench but again Registrar Judicial has been asked to proceed with the

matter in terms of order dated 22.3.2011. The Registrar Judicial seem to have prepared a report based on which matter has been assigned to this

Bench again.

Petitioner made a submission that in terms of order under review, when the learned Court has recorded satisfaction that the petition deserves to

be admitted to hearing, there was no requirement of post admission notice and filing of counter affidavit, instead petition should have been allowed.

Such submission may not be tenable but the question is as to whether the review petition is to be heard by the same Bench which has passed the

order under review.

In terms of Rule 65 of the J & K High Court Rules, 1999, application for review is to be entertained only on the grounds mentioned in Order

XLVII rule (1) of the Code whereas in terms of Rule 66(4) of the High Court Rules has to be disposed of by the Court in accordance with Order

XLVII of the Code of Civil Procedure. In terms of Order XLVII Rule (1), on the grounds enumerated therein, aggrieved person can apply for

review of the order to the Court which passed the order.

Rule 3(l)(h) of the J & K High Court Rules, 1999 defines the ""Court"" as:

(h) 'Court' means the High Court of Jammu and Kashmir and includes a Bench thereof consisting of one or more Judges.

When the Hon'ble Judge who has passed the judgment or order has neither retired nor transferred by rule of abundant caution, for maintaining

propriety, it would not be appropriate for the Coordinate Bench to review that judgment or order except for clerical or arithmetical or any other

such error. Same practice being in vogue has hardened into rule. The departure has to be by exception.

The present case has been again assigned to this Bench so is taken up for consideration by way of exception

The grounds as available for review in terms of Order XLV1I Rule (1) are:

discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge of the aggrieved

party 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.

Petitioner's contention is that when the learned Court was satisfied that the petition deserves to be admitted, petition should have been allowed.

Legal language for the Petitioner is something new as he could not carry that it is only for the purposes of admission of the petition, satisfaction has

been derived which for admitting a petition is the requirement and then post admission notice followed by the completion of pleadings is essential

for absolute adjudication of the matter.

While viewing the submissions on the grounds enumerated in Order XLVII Rule (1) CPC as quoted above, no case for review is made out.

From the further submission of Petitioner, it appears that his grievance is that after admission it may take long time for final disposal of the

petition but learned Court has taken care of the same by recording ""counter affidavit within four weeks, rejoinder within one week thereafter"" and

has also recorded ""list after ensuing summer vacation. The Respondent No. 2 has filed the counter affidavit on 16.6.2010, rest of the Respondents

have not filed but before the expiry of four weeks, Petitioner has filed the instant review petition so has protracted the disposal of the main petition.

Perhaps Petitioner would be satisfied if the main petition is disposed of at an earliest. Registry to take; steps for listing the same in next week

before the available Bench according to roster.

Disposed of as above.

Copy of the order be send to Registrar Judicial, Jammu/Srinagar for information.