Mohammad Jamal Shergujri @APPELLANT@Hash State Of Jammu & Kashmir & Ors

By medium of this review petition, the petitioner seeks review of final judgment of this Court dated 26th of April, 2018, passed in SWP No.

887/2018; MP No.01/2018, in terms whereof, this Court, on consideration of the matter and after hearing the learned counsel for the parties, observed

as under:

“Admittedly, the claim of the petitioner is time barred and cannot survive with reference to application of principle of delay and latches, otherwise

also the petitioner has remained satisfied with his appointment and subsequent promotions made from time to time till he retired in the year 2006.

In the above background, the relief prayed for being hit by the principle of delay and latches, which forms a ground for dismissal of the writ petition.

Accordingly, the writ petition is dismissed in limini.â€​

What requires to be stated, at the outset, is that in the instant review petition, the petitioner has touched the merits of the case, which, in a review

petition, is unwarranted as per law. It is well settled that the scope of review of an order is very limited and it cannot be a forum to re-argue the

matter already decided by the Court. A review cannot also be used as a tool for changing the opinion/ view of the Court. In a review petition, it is only

an error, apparent on the face of the record, which can be considered and gone into by the Court.Â

Law on the subject is no more res integra. The Apex court of the country, in case titled ‘Kamlesh Verma v. Mayawati & Ors.’ reported in

‘(2013) 8Supreme Court Cases 320’, while dealing with a similar issue, held as under:

“13.Review of the earlier order cannot be done unless the court is satisfied that material error, manifest on the face of the order, undermines its

soundness or results in miscarriage of justice. This Court, in Col. Avtar Singh Sekhon v. Union of India & Ors. [1980 (Supp) SCC 562], held as under:

“12. A review is not a routine procedure. Here we resolved to hear Shri Kapil at length to remove any feeling that the party has been hurt without

being heard. But we cannot review our earlier order unless satisfied that material error, manifest on the face of the order, undermines its soundness or

results in miscarriage of justice. In Sow Chandra Kante v. Sheikh Habib this Court observed :

…..A review of a judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error

has crept in earlier by judicial fallibility…. The present stage is not a virgin ground but review of an earlier order which has the normal feature of

finality.â€​

An error which 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 the

record justifying the Court to exercise its power of review. A review is by no means an appeal in disguise whereby an erroneous decision is re-heard

and corrected, but lies only for patent error. This Court, in Parsion Devi & Ors. v. Sumitri Devi & Ors., [JT 1997 (8) SC 480 : (1997) 8 SCC 715],

held as under:

“7. It is well settled that review proceedings have to be strictly confined to the ambit and scope of Order 47 Rule 1 CPC. In Thungabhadra

Industries Ltd. v. Govt. of A.P. this Court opined:

What, however, we are now concerned with is whether the statement in the order of September 1959 that the case did not involve any substantial

question of law is an ‘error apparent on the face of the record’). The fact that on the earlier occasion the Court held on an identical state of

facts that a substantial question of law arose would not per se be conclusive, for the earlier order itself might be erroneous. Similarly, even if the

statement was wrong, it would not follow that it was an ‘error apparent on the face of the record’, for there is a distinction which is real, though

it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterised as vitiated by ‘error

apparent’. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent

error.’ (emphasis ours) 8. Again, in Meera Bhanja v. Nirmala Kumari Choudhury while quoting with approval a passage from Aribam

Tuleshwar Sharma v. Aribam Pishak Sharma this Court once again held that 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.

Under Order 47 Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An

error which 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 the record

justifying the court to exercise its power of review under Order 47 Rule 1 CPC. In exercise of the jurisdiction under Order 47 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.â€​

Error contemplated under the rule must be such which is apparent on the face of the record and not an error which has to be fished out and

searched. It must be an error of inadvertence. The power of review can be exercised for correction of a mistake but not to substitute a view. The

mere possibility of two views on the subject is not a ground for review. This Court, in Lily Thomas & Ors. v. Union of India & Ors., [(2000) 6 SCC

224], held as under:

“54. Article 137 empowers this Court to review its judgments subject to the provisions of any law made by Parliament or any rules made under

Article 145 of the Constitution. The Supreme Court Rules made in exercise of the powers under Article 145 of the Constitution prescribe that in civil

cases, review lies on any of the grounds specified in Order 47 Rule 1 of the Code of Civil Procedure which provides:

Application for review of judgment.-(1) Any person considering himself aggrieved-Â

(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 to the court

which passed the decree or made the order.’

Under Order 40 Rule 1 of the Supreme Court Rules no review lies except on the ground of error apparent on the face of the record in criminal cases.

Order XL Rule 5 of the Supreme Court Rules provides that after an application for review has been disposed of no further application shall be

entertained in the same matter.

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It follows, therefore, that the 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 the statute dealing with the exercise of power. The review cannot be treated like an appeal in disguise. The mere

possibility of two views on the subject is not a ground for review. Once a review petition is dismissed no further petition of review can be entertained.

The rule of law of following the practice of the binding nature of the larger Benches and not taking different views by the Benches of coordinated

jurisdiction of equal strength has to be followed and practised. However, this Court in exercise of its powers under Article 136 or Article 32 of the

Constitution and upon satisfaction that the earlier judgments have resulted in deprivation of fundamental rights of a citizen or rights created under any

other statute, can take a different view notwithstanding the earlier judgment.

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Otherwise also no ground as envisaged under Order XL of the Supreme Court Rules read with Order 47 of the Code of Civil Procedure has been

pleaded in the review petition or canvassed before us using the arguments for the purposes of reviewing the judgment in Sarla Mudgal case, [JT 1995

(4) SC 331] It is not the case of the petitioners that they have discovered any new and important matter which after the exercise of due diligence was

not within their knowledge or could not be brought to the notice of the Court at the time of passing of the judgment. All pleas raised before us were in

fact addressed for and on behalf of the petitioners before the Bench which, after considering those pleas, passed the judgment in Sarla Mudgal case.

We have also not found any mistake or error apparent on the face of the record requiring a review. Error contemplated under the rule must be such

which is apparent on the face of the record and not an error which has to be fished out and searched. It must be an error of inadvertence. No such

error has been pointed out by the learned counsel appearing for the parties seeking review of the judgment. The only arguments advanced were that

the judgment interpreting Section 494 amounted to violation of some of the fundamental rights. No other sufficient cause has been shown for

reviewing the judgment. The words ‘any other sufficient reason appearing in Order 47 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 approved by this Court in

Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius, [AIR 1954 SC 526] Error apparent on the face of the proceedings is an error

which is based on clear ignorance or disregard of the provisions of law. In T.C. Basappa v. T. Nagappa, [AIR 1954 SC 440] this Court held that such

error is an error which is a patent error and not a mere wrong decision. In Hari Vishnu Kamath v. Ahmad Ishaque [AIR 1955 SC 233], it was held:

…. 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 on either side were unable to

suggest any clear-cut rule by which the boundary between the two classes of errors could be demarcated.Â

Mr. Pathak for the first respondent contended on the strength of certain observations of Chagla, C.J. in â€" ‘Batuk K. Vyas v. Surat Borough

Municipality, [AIR 1953 Bom 133′] that no error could be said to be apparent on the face of the record if it was not self-evident and if it required an

examination or argument to establish it. This test might afford a satisfactory basis for decision in the majority of cases. But there must be cases in

which even this test might break down, because judicial opinions also differ, and an error that might be considered by one Judge as self-evident might

not be so considered by another. The fact is that what is an error apparent on the face of the record cannot be defined precisely or exhaustively, there

being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case.’

Therefore, it can safely be held that the petitioners have not made out any case within the meaning of Article 137 read with Order XL of the Supreme

Court Rules and Order 47 Rule 1 CPC for reviewing the judgment in Sarla Mudgal case. The petition is misconceived and bereft of any substance.â€​

In a review petition, it is not open to the Court to re-appreciate the evidence and reach a different conclusion, even if that is possible. Conclusion

arrived at on appreciation of evidence cannot be assailed in a review petition unless it is shown that there is an error apparent on the face of the

record or for some reason akin thereto. This Court, in Kerala State Electricity Board v. Hitech Electrothermics & Hydropower Ltd. & Ors., [JT 2005

(7) SC 485], held as under:Â

“10. ………In a review petition it is not open to this Court to reappreciate the evidence and reach a different conclusion, even if that is possible.

Learned counsel for the Board at best sought to impress us that the correspondence exchanged between the parties did not support the conclusion

reached by this Court. We are afraid such a submission cannot be permitted to be advanced in a review petition. The appreciation of evidence on

record is fully within the domain of the appellate court. If on appreciation of the evidence produced, the court records a finding of fact and reaches a

conclusion, that conclusion cannot be assailed in a review petition unless it is shown that there is an error apparent on the face of the record or for

some reason akin thereto. It has not been contended before us that there is any error apparent on the face of the record. To permit the review

petitioner to argue on a question of appreciation of evidence would amount to converting a review petition into an appeal in disguise.â€​

Review is not re-hearing of an original matter. The power of review cannot be confused with appellate power which enables a superior court to

correct all errors committed by a subordinate court. A repetition of old and overruled argument is not enough to re-open concluded adjudications. This

Court, in Jain Studios Ltd. v. Shin Satellite Public Co. Ltd., [JT 2006 (7) SC 40 : (2006) 5 SCC 501], held as under:

“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.\

When a prayer to appoint an arbitrator by the applicant herein had been made at the time when the arbitration petition was heard and was

rejected, the same relief cannot be sought by an indirect method by filing a review petition. Such petition, in my opinion, is in the nature of ‘second

innings’ which is impermissible and unwarranted and cannot be granted.â€​

Review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order XLVII Rule 1 of CPC. In

review jurisdiction, mere disagreement with the view of the judgment cannot be the ground for invoking the same. As long as the point is already dealt

with and answered, the parties are not entitled to challenge the impugned judgment in the guise that an alternative view is possible under the review

jurisdiction.â€​

A cue can, in this behalf, be also had from the decision rendered by a Division Bench of this High Court in the case of ‘State of JK & Ors. vs.

Govt.Handloom Silk Weaving Factory & Ors.’, reported in ‘2016 (2) JKJ 795(HC)’, of which I was the author, wherein, it has been held as

follows:

“13. At the very outset it needs to be kept in mind that review jurisdiction of the Court if limited. It is settled law that it is only an error apparent on

the face of the record which can be considered and one into by the Court. In the present review petition, the grounds of facts of law urged in review

petitions, as narrated above, including the submissions made at the Bar by the learned Counsels appearing in these review Petitions, which in content

and substance were the same as taken in the respective review petitions, cannot in any manner be considered as errors on the fact of record. Instead

the grounds sought to be raised and urged may constitute grounds of appeal alone. In fact, the instant review petitions on grounds enumerated herein

appear to be disguised Second Appeals. As noticed above, the grounds taken by the review petitioners are either that the findings recorded by the

Court are not legally tenable, or that the same are perverse, or that the same are unacceptable. A judgment may be wrong, erroneous incorrect,

perverse, legally untenable, etc. etc., the only course available for the aggrieved party is to go in appeal. Such grounds do not constitute errors of fact

or of law on the face of the record as would call for a review.â€​Â

In the above background coupled with the law discussed hereinabove, I do not find any error, apparent on the face of the record, in the judgment

dated 26th of April, 2018, passed by this Court in SWP No.887/2018: IA No.01/2018, as would warrant its recall on review. The review petition shall,

therefore, stand dismissed.Â