Point of Law: Application for review of judgment - Powers of review cannot be exercised as an inherent power nor can an appellate power be exercised in guise of power of review. After holding this, Supreme court found that High Court overstepped jurisdiction vested in Court under Order 47 Rule 1 CPC.

JUDGMENT :

1. Review of judgment dated 16th October 2018, passed in the Appeal, bearing CFA no.19/2016, titled Dr. Nazir Ahmad Dhar vs. Musthaq Ahmad Dhar and others, is sought for in petition on hand.

2. Heard and considered.

3. Review petitioner, aggrieved of judgment and decree dated 27th November 2015, passed by 2nd Additional District Judge, Srinagar (hereinafter referred to as “Trial Court”) in a Civil Suit, titled Dr. Nazir Ahmad Dhar vs. Mushtaq Ahmad Dhar and others, had filed an appeal, which was diarized and registered as CFA no.19/2016. This Court by the judgment, under review, upheld the Trial Court judgment and decree and dismissed the Appeal of review petitioner.

4. Review of judgment dated 16th October 2018 is prayed for on the ground that there is an error apparent on the face of record in respect of the conclusions drawn by this Court at paragraph 15 of the judgment. It is contended that once evidence is admissible and relevant, the evaluation of evidence so produced is not entirely a matter of discretion with the court inasmuch as evidence was required to be appreciated by the 1st Appellate Court. The appeal is stated to be in continuation to the proceedings. The Court is said to have contravened the provisions of Code of Civil Procedure and ignored the evidence. It is also contended that in paragraph 17, the Court has dealt with question of transferring the moneys from foreign country to India without having channeled it through the banks and that in civil proceedings the court was required to be concerned with the fact of transfer and not its methodology, more so the Court has ignored the evidence establishing the fact that defendants had received the money from appellant/petitioner. To observe that money had not been routed through banks, is of no consequence so long as it is established that the moneys sent by appellant/petitioner had actually been received by defendants, which fact was acknowledged by them in their communications and that the Court has not seen and examined the record and ignored important evidence. It is also averred that in paragraph 18 of the judgment under review, the Court has again dealt with the issue of admissibility of evidence and the conclusion drawn by the Court is in ignorance of material existing on record inasmuch as the primary evidence was admissible in evidence had it been available and since the primary evidence was not available, therefore, the Court had allowed appellant/petitioner to produce secondary evidence. The Court has not identified as to which document was inadmissible.

5. It is pertinent to mention here that while considering abovementioned contentions made in the review petition, the scope and ambit of Section 114 read with Order XLVII Rue 1 of the Code of Civil Procedure is to be taken into consideration.

6. The grounds on which review can be sought are enumerated in Order XLVII Rule 1 CPC, which reads as under:

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

(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 of the court which passed the decree or made the order.”

7. An application for review would lie, among others, when an order suffers from an error apparent on the face of record and permitting the same to continue would lead to failure of justice. Limitations on exercise of power of review are well settled.