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2004 DIGILAW 188 (JK)

Kalu Ram v. Special Tribunal, J&K, Jammu

2004-06-10

PERMOD KOHLI, S.K.GUPTA

body2004
Per: Permod Kohli, J 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. 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 before us. All the grounds relate to the merits of the case. As a matter of fact what has been urged is that the judgment is erroneous on facts and in law. He has also referred to AIR 1985 SC 207 (M/s Variety Emporium v. V.R.M. Mohd Ibrahim Naina); AIR 1987 SC 2055 (Dipak Banarjee v. Lilabati); AIR 1986 SC 441 (Ganga Bishan & Ors. As a matter of fact what has been urged is that the judgment is erroneous on facts and in law. He has also referred to AIR 1985 SC 207 (M/s Variety Emporium v. V.R.M. Mohd Ibrahim Naina); AIR 1987 SC 2055 (Dipak Banarjee v. Lilabati); AIR 1986 SC 441 (Ganga Bishan & Ors. v. Jai Narain) and AIR 2001 SC 266 (Ram Lakhan v. Presiding Officer & Ors.). In case Ram Lakhan v. Presiding Officer, AIR 2001 SC 286, the Advocate on record engaged by the appellant was unable to appear due to ill- health and another Advocate who was required to mention had to leave the court due to ill-ness of his son and the appeal came to be dismissed in default. Under these circumstances the Court re-called the order by exercising power of review under Order 47 Rule 1. In case Ganga Bishan and others v. Jai Narain, AIR 1986 SC 441, the Apex Court observed as under: "Ordinarily the Supreme Court would be averse to interfere under Art 136 of the Constitution with the concurrent findings of fact recorded by the High Court and the Trial Court. But where there are material irregularities affecting the said findings or where the court feels that justice has failed and the findings are likely to result in unduly excessive hardship, the Supreme Court could not decline to interfere merely on the ground that the findings in question are findings of fact." In case Dipak Banarjee v. Lilabati Chakraborty, AIR 1987 SC 2055, the Apex Court observed as under:- "It is true that normally this Court is too reluctant to interfere with the concurrent findings of fact. But if the essential ingredients necessary for finding of a fact have not in fact been found by the Courts below then this Court is bound to examine the question where injustice or wrong is done,." In case M/s Variety Emporium v. R.M. Mohd Ibrahim Naina, AIR 1985 SC 207, the Apex Court held as under:- "Concurrent findings of lower Court has relevance on the question whether Supreme Court should exercise its jurisdiction under Art 136 of the Constitution to review a particular decision. That jurisdiction has to be exercised sparingly. But, that cannot mean that injustice must be perpetuated because it has been done two or three times in a case. That jurisdiction has to be exercised sparingly. But, that cannot mean that injustice must be perpetuated because it has been done two or three times in a case. The burden of showing that a concurrent decision of two or more courts or Tribunals is manifestly unjust lies on the appellant. But once that burden is discharged, it is not only the right but the duty of Supreme Court to remedy the injustice. 10. It is accordingly contended that the findings recorded by the Court are required to be set aside being contrary to facts on record. 11. We have examined the findings recorded by the Court. The same were borne out from the record. Mr. Kalgotra has failed to find out anything that the finding is not based on facts on record, in which the view taken is erroneous. 12. It is settled proposition of law that review jurisdiction cannot be exercised to correct the erroneous findings of fact and law. The review Court can interfere only if there is error apparent on the face of the record. Neither from the grounds specified in the memo of review petition nor from the judgment impugned any error apparent on the face of the record has been pointed out. The validity of erroneous judgment or order can only be examined by an appellate Court and not by the review Court as it amounts to re-hearing of the entire matter. There is no error apparent on the face of the record, enabling us to interfere with the findings recorded in the impugned judgment in exercise of the review jurisdiction. We accordingly decline to interfere. There is no merit in this review petition on both the grounds canvassed before us. This review petition is accordingly dismissed.