Serial No. 101

Daily Supply. List-1

HIGH COURT OF JAMMU AND JAMMU

AT JAMMU

(Through Virtual Mode)

CM (M) No.94/2020

CM No.4589/2020

Caveat No. 1021/2020

C/w

RPOWP No. 13/2018

CM No. 4125/2020

CM No. 4126/2020

Wali Mohammad Sofi

….. Petitioner(s)

Through: -

None

V/s

Wali Mohammad Kirmani and Anr.

….. Respondent(s)

Through: -

Mr. Sameer Hassan Dar, Advocate

CORAM:

Hon’ble Mr Justice Ali Mohammad Magrey, Judge.

(ORDER)

01.02.2021

RPOWP No. 13/2018

01.

The petitioner, by medium of this review petition, is seeking review of order

passed on 15^th of May, 2018 in OWP No. 808/2017, in terms whereof this Court,

while allowing the writ petition, directed that in light of the fact that application

under section 152 CPC has been decided without notice to the successor-in-interest

in the land in question, namely, the petitioner, the order passed by the learned

District Judge, Baramulla, which has resulted in gross failure of justice, is set aside

with further direction that the application shall be re-heard after notice to the

persons interested in the property, and subject to the outcome of the Police

investigation.

02.

What requires to be stated, at the outset, is that in the instant review petition,

the review petitioner has touched the merits of the case, which, in a review

petition, is unwarranted as per well settled position of law. The grounds urged in

the review petition have already been decided and findings returned thereon by the

Court and, if the review petitioner was aggrieved of the said findings, he ought to

have availed the remedy under law for challenging the same in appropriate Court.

In fact, the instant review petition, on grounds enumerated therein, appears to be a

disguised appeal. The grounds taken by the review petitioner 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., but, the only course available for

the aggrieved party is to go in appeal the said judgment. Such grounds do not

constitute errors of fact or of law on the face of the record as would call for a

review.

03.

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. It is not open to the Court,

dealing with review of its decision, to re-appreciate the evidence and reach a

different conclusion, even if that is possible. Conclusion arrived at, on appreciation

of evidence and after hearing the rival parties, cannot be assailed in a review

petition, unless it is shown that there is an error apparent on the face of the record.

So far as the grievance of the review petitioner on merits of the case is concerned,

virtually the review petitioner seeks the same relief which he had sought at the

time of arguing the main matter and had been negatived. Once such a prayer has

been refused, no review petition would lie which would convert rehearing of the

original matter. It is well 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 has to be exercised with extreme care, caution

and circumspection, that too, only in exceptional cases.

04.

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) 8 Supreme

Court Cases 320?, while dealing with a similar issue, at paragraph Nos. 13, 15 to

19, laid down as under:

“13. Review of the earlier order cannot be done unless the court

is satisfi