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2017 DIGILAW 460 (JK)

Shahid Hussain v. Mahtaba Begum

2017-07-27

ALOK ARADHE

body2017
JUDGMENT : This application has been filed seeking review of the order dated 30.05.2017 passed by this Court in CIMA No.515/2012. 2. Facts giving rise to the filing of this review petition is that the respondents have assailed the validity of the order dated 16.11.2012 passed by the lower Appellate Court by which the judgment and decree dated 04.02.2011 passed by the Trial Court was set aside and the matter was remitted to the Trial Court for decision afresh. 3. This appeal was filed under the provisions of Order 43 Rule 1(u) of the Code of Civil Procedure, which was decided by this Court. The relevant extracts of Order 43 Rule 1(u) CPC reads as under: “Order XLIII. 1. Appeals from order -------- ---------- (u) an order under rule 23 or rule 23-A of Order XLI remanding a case, where an appeal would lie from the decree of the Appellate Court.” 4. Learned counsel for the petitioner submitted that the order suffers from the error apparent on the face of record on the ground that this Court while deciding the appeal has not formulated the substantial questions of law. In support of his submissions, learned counsel for the petitioner has referred to the decisions of the Supreme Court in the cases of Naryanan v. Kumaran, 2004 (4) SCC 26 ; M. M. Thomas v. State of Kerala and another, 2000 (1) SCC 666 and decisions of this court in the cases of Gohli and anr. v. Bal Krishan, 2007 Legal Eagle (J&K) 131, Shabir Ahmad Shah and anr. v. Abdul Gani and ors, 2013 Legal Eagle 403, Mohd. Yaqoob Banday v. Ab. Hamid Banday and ors, 2013 Legal Eagle 406. 5. From a perusal of the decision rendered by the Supreme Court in the case of Narayanan (supra), it is evident that same deals with appeal under Section 100 of the Code of Civil Procedure where formulating the substantial question of law is a sine qua non. In the instant case, the appeal was not filed under Section 100 of the CPC but under Order 43 Rule 1(u) of the CPC. Therefore, the order passed by this court does not suffer from any error apparent on the face of record warranting interference of this Court in exercise of review jurisdiction. 6. In the result, I do not find any merit in the review petition. Accordingly, the same is dismissed.