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2009 DIGILAW 474 (JK)

Mukhtar Ahmad Wani v. Mohd. Ramzan Wani

2009-10-05

SUNIL HALI

body2009
1. In his capacity as a partner of Shopian Oil Agency, a suit came to be filed before learned Sub Judge Shopian, seeking restraint on the respondents-defendants not to shift the oil depot from the place where it was originally located. In the interim application filed before the Court, an order of status quo came to be passed regarding grant of No Objection Certificate in favour of the contesting defendant therein. A further direction came to be issued by the Court that during the pendancy of the suit supply of Kerosene Oil be diverted to some other agency by way of an interim arrangement. Said order came to be questioned in this Court in Revision Petition no. 2/2009, primarily on the grounds that; (a) Looking to the scope of the suit the trial Court has travelled beyond the scope of the pleadings in deciding the application; (b) Issue regarding the maintainability of the suit being barred by Section 69 of the Partnership Act, it was required to be considered before issuance of interim directions, and (c) that on same cause of action a civil suit has been filed before learned District Judge Pulwama wherein it is contended that the license issued in favour of the contesting defendant by the Oil Company, is palpably wrong. The present suit was not maintainable. 2. After hearing parties this Court vide its order dated 24.4.2009 allowed the revision petition and set aside the order of the trial court. The import of the order passed by the this Court while dealing with the controversy raised in the suit was that the core issue was not addressed by the trial Court while issuing the order of status quo. This Court also directed that during the pendancy of the civil suit, supply of kerosene oil be made available to the petitioner. 3. Review has been filed by the present petitioner on the grounds viz. This Court also directed that during the pendancy of the civil suit, supply of kerosene oil be made available to the petitioner. 3. Review has been filed by the present petitioner on the grounds viz. (a) that while directing supply of Kerosene Oil in favour of the petitioner in the revision petition, an error has been committed by allowing the supply in favour of the petitioner, as he was not in possession of a valid license; (b) That with regard to the applicability of Section 69 of the Partnership Act, it is contended that the issue involved in the suit was the exclusion of the petitioner as a business partner and as such the said Section was not attracted in the present case, and (c) that the license was granted in favour of Shopian Oil Agency and not in the name of the petitioner, which fact had been overlooked. 4. I have heard learned counsel for the parties. In order to understand and examine the controversy, it is relevant to note the principle which governs the power of the Court in the matter. Order 47 Rule 1 (1) of the Code of Civil Procedure reads thus:- "(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 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 order made against him, may apply for a review of judgment to the Court which passed the decree or made the order." 5. The import of the order clearly reveals that if there is a mistake apparent on the face of the record, than alone review petition is maintainable. The import of the order clearly reveals that if there is a mistake apparent on the face of the record, than alone review petition is maintainable. Where, without any elaborate argument, one could point to the error and say that here is a substantial point of law which stares one in the face and there could reasonable be no two opinions entertained about it, a clear case of error apparent on the face of the record would be made out. 6. Now examining the order in the present controversy, it be seen that the ambit and scope of the controversy involved in the suit was as to whether No Objection Certificate granted in favour of the petitioner therein was within the precincts of law. Undoubtedly the basis for seeking such a relief was that petitioner was a partner in the firm. On the first question regarding the applicability of Section 69 of the Partnership Act, this Court has not returned any finding as to whether the suit could be maintained without adhering to Section 69. While dealing with the arguments of the petitioner therein, this Court has directed the trial Court to address itself on this issue during the course of the trial. The contention of the petitioner that scope and applicability of Section 69 has been determined by this Court is not correct. 7. Regarding second contention that the supply of Kerosene Oil is ordered, when admittedly the petitioner did not have the license issued by the Director Consumer Affairs & Public Distribution Department, Srinagar, it be noted that no such finding has been given by the Court as to whether the petitioner therein was in possession of a valid license or not. Since this controversy did not arise in the present case, the question of dealing with this issue did not arise. All that the petitioner has tried to convey is that while deciding the Revision Petition this Court has allowed that supply to be continued in favour of the petitioner who was not possessed of a valid license. 8. While dealing with this question, the Court has referred to various orders passed by the respondents and the Principal District Judge Pulwama, whereby supply made earlier to the petitioner was discontinued vide order dated 16.10.2006. 8. While dealing with this question, the Court has referred to various orders passed by the respondents and the Principal District Judge Pulwama, whereby supply made earlier to the petitioner was discontinued vide order dated 16.10.2006. The object of giving this direction was in context of the directions given by the trial Court by directing that some alternate arrangement be made till the controversy between the parties is settled by the Court. There is no adjudication which was required to be made by the Court in respect of this issue as it directly did not arose in the suit. The direction to allow supply of Kerosene Oil to the petitioner was made in the backdrop indicated hereinabove and it was never intended to convey that petitioner was in possession of a valid license or not. This issue was to be determined by respondent no.7. 9. I am told at the Bar that requisite order has been issued in this behalf, for which the present petitioner has adequate remedy, which he may avail, if he so chooses. 10. The third contention raised in the review petition was that the license was granted to the firm and not to the petitioner. Petitioner being alien in the firm was not entitled to receive Kerosene Oil. 11. This again was not the controversy involved in the revision petition. As noted in the judgment, the petitioner has already filed a civil suit before learned District Judge Pulwama where all these questions have been raised and this Court was not called upon to determine any such issue. 12. From the aforementioned discussion, it is clearly revealed that neither there is any mistake nor any error apparent on the face of the record. By virtue of the present review petition the petitioner has raised issues which have never been dealt with by this Court, as admittedly no such controversy was involved in the revision petition. The Court cannot review an order by addressing itself to the controversy raised in the review petition, which is alien to the nature of controversy involved in the revision petition. None of the issues raised by the review petitioner arose in the case which have been decided by this Court in the revision petition. The Court cannot review an order by addressing itself to the controversy raised in the review petition, which is alien to the nature of controversy involved in the revision petition. None of the issues raised by the review petitioner arose in the case which have been decided by this Court in the revision petition. Reliance has been placed in the judgment reported as AIR 2006 SC, 592, in which the Court has observed as follows:- "It is not correct to contend that the Court while exercising its review jurisdiction in any situation whatsoever cannot take into consideration a subsequent event. In a case relating to disqualification of members by Board of Control of Cricket in India (Board) when the Court accepts its own mistake in understanding the nature and purport of the undertaking given by the counsel appearing on behalf of the Board and its correlation with as to what transpired in the AGM of the Board held subsequently, the subsequent event may be taken into consideration by the Court for the purpose of rectifying its own mistake." 13. There is no dispute with this proposition of law that any subsequent event, which has not been taken note by the Court, is capable of review. The other judgment reported as AIR 2005 SC, 2087 deals with the question that if certain facts have not been brought to the notice of the Court but were found existing therein, the Court can correct the error. 14. As stated hereinabove, the contention raised by the petitioner in his review petition do not cover the controversy involved in the revision petition. The Court in its judgment has not returned any finding on these issues. It is in this view of the matter that present review petition is not maintainable. 15. As already discussed above, review by no means is an appeal in disguise whereby an erroneous decision is re-heard and corrected but lies only for rectifying a patent error. 16. The questions discussed herein above are not purely questions of law and also not an error apparent on the face of the record. These questions cannot be decided without elaborate arguments and deliberations, more particularly when these never formed the basis of the controversy involved in the revision petition. 17. I, therefore, find no merit in this review petition, which is, accordingly, dismissed.