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2004 Supreme(J&K) 198
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
S.K. Gupta,Permod Kohli, JJ.
Kalu Ram - Appellant
Versus
Special Tribunal, J&K, Jammu & Ors. - Respondent
Revision (LPA)(W) No. 15/2004
Decided On : 10 June, 2004
Advocate For Appellant: B.L. Kalgotra
Review jurisdiction cannot be exercised to correct erroneous findings of fact and law. The review Court can interfere only if there is error apparent on the face of the record.
Headnote:
Review - Validity of order passed by writ Court - Code of Civil Procedure - Order 41 Rule 19 - AIR 1981 J&K 31, AIR 2001 J&K 4, AIR 1985 SC 207, AIR 1987 SC 2055, AIR 1986 SC 441, AIR 2001 SC 266 - The court examined the validity of the order passed by the writ Court and held that the appeal was not decided without hearing the appellant. The findings recorded in the impugned judgment were found to be based on facts on record, and no error apparent on the face of the record was pointed out. The review petition was dismissed.
Fact of the Case:
Review sought of the judgment dismissing a Letters Patent Appeal preferred by the review petitioner against the judgment of the writ Court. The petitioner argued that the appeal was decided without affording him full opportunity of being heard and that the findings recorded in the impugned judgment on certain questions were erroneous.
Finding of the Court:
The court found that the appeal was not decided without hearing the appellant and that the findings recorded in the impugned judgment were based on facts on record. No error apparent on the face of the record was pointed out.
Issues: Validity of order passed by writ Court, grounds for review, erroneous findings in the impugned judgment
Ratio Decidendi: The court declined to interfere with the findings recorded in the impugned judgment as there was no error apparent on the face of the record. Review jurisdiction cannot be exercised to correct erroneous findings of fact and law.
Final Decision: The review petition was dismissed as there was no merit in the grounds canvassed before the court.
Review is sought of the judgment dated 9-3-2004 in LPA (OW) No. 617 of 1999 whereby a Letters Patent Appeal preferred by the review petitioner against the judgment of the writ Court in OWP No. 421 of 1992 has been dismissed.
2. Vide the impugned order this Court while examining the validity of the order passed by the writ Court has held that there are concurrent findings of all the authorities/ forums except the one whereby the case was remanded. It has been observed that the writ Court rightly declined to interfere with the order impugned therein.
3. Learned counsel appearing for the petitioner has primarily urged two grounds before us.
(i) that the impugned judgment has been passed without hearing the petitioner
(ii) Judgment needs to be reviewed in view of findings recorded by the court.
4. Mr. Kalgotra, learned counsel appearing for the petitioner has vehemently argued that the appeal was decided without affording him full opportunity of being heard as the case was adjourned for further arguments and came to be decided without hearing the counsel for the petitioner (appellant in Letters Patent Appeal). He accordingly invokes provisions of Order 41 Rule 19 of Code of Civil Procedure.
5. One of us (Justice Permod Kohli) is a party to the order under review.
6. The appeal was taken up for hearing on 8-3-2004 when the learned counsel for the appellant argued the matter for almost half of the day. Not only the arguments on behalf of the appellant were heard, but Mr. K.S. Puri, learned counsel appearing for the opposite side was also heard. At the end of the day Mr. Kalgotra insisted for making further submissions and accordingly the case was adjourned to next day for making further submissions, if any. On the following day i.e. 9-3-2004 the case was called before break but Mr. Kalgotra was not present. It was again taken up after the break. He again did not appear. The Court accordingly passed order dated 9-3-2004 and following observations were recorded regarding non-appearance of the learned counsel for the petitioner:
"It may be mentioned that though Mr. Kalgotra made submissions at length yesterday, he sought time to make further submissions. We accordingly postponed hearing for the day. Today when the case was taken up before the break, Mr. Kalgotra did not appear. We passed over the case till after the lunch break, but Mr. Kalgotra did not turn up to make the submissions."
7. Mr. Kalgotra has referred the judgments reported as AIR 1981 J&K 31 (Ghulam Qadir v. Sikander), AIR 2001 J&K 4 (J&K Bank Ltd v. Abdul Samad Chiloo), and urged that where the appeal is decided on merits in absence and without hearing the appellant, the order is not sustainable and the court has the power to order re-hearing of the appeal under Order 41 Rule 19 of Code of Civil Procedure.
8. We have carefully gone through the law enunciated in the afore-said judgments. This is not a case where the appeal was decided on merits without hearing the appellant. As observed above, Mr. Kalgotra was heard at length and he concluded his arguments and even the counsel for the other-side was heard but Mr. Kalgotra insisted for making further submissions which he never made and did not appear on the next date of hearing. The Court had no option but to pass the order. While passing the order all arguments addressed by Mr. Kalgotra have been noticed and dealt with. Petitioner has not raised any grievance that any of the argument of Mr. Kalgotra has not been taken note of while passing the impugned judgment. It is not a case of re-hearing as envisaged under Order 41 R 19 CPC. We are unable to accept this contention of the learned counsel.
9. The second ground urged by Mr. Kalgotra is that the findings recorded in the impugned judgment on certain questions is erroneous. He has urged the grounds for review as noticed in the memo of appeal from grounds (e) to (h). We have carefully examined these grounds in the memo of review petition and canvassed b
