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2018 DIGILAW 522 (JK)

Mir Engineers & Builders v. Sanjay Diesels

2018-07-16

ALI MOHD.MAGREY

body2018
JUDGMENT : Ali Mohd. Magrey, J. 1. The petitioner, through the medium of instant review petition, seeks review of final judgment of this Court dated 13th of March, 2015, passed in 561-A No. 146/2012; Cr. MP No. 306/2012, in terms whereof, it was observed as under: "For the aforesaid reasons, this petition is dismissed alongwith connected miscellaneous petition. Interim direction, if any, subsists shall stand vacated. As mentioned earlier, the complaint in question has been filed 29.04.2008. Since then almost six years have passed by now, unfortunately, the complaint continues to be at its initial stage. One is anguished to notice the state of affairs, which, of course, is not attributable to the trial Court. The fault lies elsewhere. Therefore, it is a fit case where it needs to be mentioned in clear terms that let the delaying tactics be given a quietus and let the trial start so that the case is brought to its logical end. The Registry is directed to send down the trial court records forthwith through whatever speedy mode he may think fit. The petitioner-accused is directed to present himself before the trial court on 23.03.2015. The trial court shall complete the process in terms of Section 242 Cr. P.C. on 23.03.2015 itself, proceed with the matter thereafter and make efforts to decide the case as expeditiously as possible. If the petitioner-accused does not appear before the trial court on 23.03.2015, the trial court shall take all coercive measures available to it under law to procure his attendance. It is provided that in case the date fixed hereinabove happens to be a close day/holiday for any unforeseen reason, the petitioner-accused shall present himself before the trial court on the next available working day of the court." 2. Learned counsel for the review petitioner has raised two issues with reference to adjudication and allowing the review petition, which the same are detailed out as under: 1. Whether there was any legally enforceable debt on the date of drawal of cheque.? 2. Whether CJM Jammu lacks the jurisdiction to hold trial in view of the judgment of the Supreme Court titled Dashrath Rupsingh Rathod v. State of Maharashtra & Anr.: 2014 (4) JKJ 14[SC] Dashrath Roop Rathod v. State, reported in (2014) 9 SCC 129 .? With respect to issue No. 1 Mr. 2. Whether CJM Jammu lacks the jurisdiction to hold trial in view of the judgment of the Supreme Court titled Dashrath Rupsingh Rathod v. State of Maharashtra & Anr.: 2014 (4) JKJ 14[SC] Dashrath Roop Rathod v. State, reported in (2014) 9 SCC 129 .? With respect to issue No. 1 Mr. B.A. Bashir, Senior Advocate, appearing on behalf of review petitioner stated that there was no debt liability on behalf of the petitioner on the date of drawal of cheque. Perusal of record reveals that this issue has already been decided at length by this Court in an earlier 561-A No. 114 of 2008 vide judgment dated 25.02.2009 and registering the issue the Court has already returned a finding and decided the issue with reference to dismissing the petition. In this view of the matter, it is held that the petitioner has re-agitated the issue which was decided on merits earlier. Needless to mention in the aforementioned judgment, the court at para-6 of the judgment had considered the question as to whether the "security cheque" when presented for encashment, if yes, when? In para-7 of the judgment the court has already answered the aforementioned question and held that when the party defaults in performance of the contract and the amount of debt becomes enforceable the "security cheque" have been presented for encashment. The bouncing of such cheque gives rise to filing of complaint under section 138 Negotiable Instrument Act, 1881. In para-9 of the judgment the court has also held that in the present fact and circumstances of the case whether there is legally enforceable debt is a fact to be proved by the respondents and open to be disputed by the petitioner, therefore, the contention of the learned counsel that "Security Cheque" cannot be presented for encashment is not tenable. Para 12 of the judgment is important in view of the issue raised and decided earlier, with reference of holding that the issue which arises for consideration is whether Rs. 73,35,000/- was legally recoverable debt from the petitioner, the same was left to the decision of the trial Magistrate because the same needs trial. Reference of the judgments made by learned counsel for the petitioner titled "Indus Airways Private Limited and Ors. 73,35,000/- was legally recoverable debt from the petitioner, the same was left to the decision of the trial Magistrate because the same needs trial. Reference of the judgments made by learned counsel for the petitioner titled "Indus Airways Private Limited and Ors. v. Magnum Aviation Private Limited and Anr., reported in (2014) 12 Supreme Court Cases 539 : 2014 (4) JKJ 8 [SC] and case titled Sudhir Kumar Bhalla v. Jagdesh Chand and Ors., reported in (2008) 7 Supreme Court Cases 137". In the facts and circumstances of the case with reference to the issue raised in the review petition does touch the merit of the case, therefore, the judgments are distinguishable. 3. What requires to be stated, at the outset, is that in the instant review petition, the petitioner has touched the merits of the case, which, in a review petition, is unwarranted as per law. The grounds urged in the review petition have already been decided and findings returned thereon by the Court and, if the 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. Such grounds do not constitute errors of fact or of law on the face of the record as would call for a review. 4. 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. 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 petitioner on merits is concerned, virtually the 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. 5. 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, held as under: "13. Review of the earlier order cannot be done unless the court is satisfied that material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice. This Court, in Col. Avtar Singh Sekhon v. Union of India & Ors. [1980 (Supp) SCC 562], held as under: "12. A review is not a routine procedure. Here we resolved to hear Shri Kapil at length to remove any feeling that the party has been hurt without being heard. But we cannot review our earlier order unless satisfied that material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice. In Sow Chandra Kante v. Sheikh Habib this Court observed: 1. .....A review of a judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility.... The present stage is not a virgin ground but review of an earlier order which has the normal feature of finality." 15. .....A review of a judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility.... The present stage is not a virgin ground but review of an earlier order which has the normal feature of finality." 15. An error which is not self-evident and has to be detected by a process of reasoning can hardly be said to be an error apparent on the face of the record justifying the Court to exercise its power of review. A review is by no means an appeal in disguise whereby an erroneous decision is re-heard and corrected, but lies only for patent error. This Court, in 2010 (5) JKJ 574 [SC] Parsion Devi & Ors. v. Sumitri Devi & Ors. [JT 1997 (8) SC 480 : (1997) 8 SCC 715 ], held as under: "7. It is well settled that review proceedings have to be strictly confined to the ambit and scope of Order 47 Rule 1 CPC. In Thungabhadra Industries Ltd. v. Govt. of A.P. this Court opined: 11. What, however, we are now concerned with is whether the statement in the order of September 1959 that the case did not involve any substantial question of law is an 'error apparent on the face of the record'. The fact that on the earlier occasion the Court held on an identical state of facts that a substantial question of law arose would not per se be conclusive, for the earlier order itself might be erroneous. Similarly, even if the statement was wrong, it would not follow that it was an 'error apparent on the face of the record', for there is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterised as vitiated by 'error apparent'. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for 'patent error.' (emphasis ours) 8. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for 'patent error.' (emphasis ours) 8. Again, in Meera Bhanja v. Nirmala Kumari Choudhury while quoting with approval a passage from Aribam Tuleshwar Sharma v. Aribam Pishak Sharma this Court once again held that review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1 CPC. 9. Under Order 47 Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the court to exercise its power of review under Order 47 Rule 1 CPC. In exercise of the jurisdiction under Order 47 Rule 1 CPC it is not permissible for an erroneous decision to be 'reheard and corrected'. A review petition, it must be remembered has a limited purpose and cannot be allowed to be 'an appeal in disguise." 16. Error contemplated under the rule must be such which is apparent on the face of the record and not an error which has to be fished out and searched. It must be an error of inadvertence. The power of review can be exercised for correction of a mistake but not to substitute a view. The mere possibility of two views on the subject is not a ground for review. This Court, in Lily Thomas & Ors. v. Union of India & Ors., [ (2000) 6 SCC 224 ], held as under: "54. Article 137 empowers this Court to review its judgments subject to the provisions of any law made by Parliament or any rules made under Article 145 of the Constitution. The Supreme Court Rules made in exercise of the powers under Article 145 of the Constitution prescribe that in civil cases, review lies on any of the grounds specified in Order 47 Rule 1 of the Code of Civil Procedure which provides: 1. The Supreme Court Rules made in exercise of the powers under Article 145 of the Constitution prescribe that in civil cases, review lies on any of the grounds specified in Order 47 Rule 1 of the Code of Civil Procedure which provides: 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 to the court which passed the decree or made the order. Under Order 40 Rule 1 of the Supreme Court Rules no review lies except on the ground of error apparent on the face of the record in criminal cases. Order XL Rule 5 of the Supreme Court Rules provides that after an application for review has been disposed of no further application shall be entertained in the same matter. ....................... 56. It follows, therefore, that the power of review can be exercised for correction of a mistake but not to substitute a view. Such powers can be exercised within the limits of the statute dealing with the exercise of power. The review cannot be treated like an appeal in disguise. The mere possibility of two views on the subject is not a ground for review. Once a review petition is dismissed no further petition of review can be entertained. The rule of law of following the practice of the binding nature of the larger Benches and not taking different views by the Benches of coordinated jurisdiction of equal strength has to be followed and practised. Once a review petition is dismissed no further petition of review can be entertained. The rule of law of following the practice of the binding nature of the larger Benches and not taking different views by the Benches of coordinated jurisdiction of equal strength has to be followed and practised. However, this Court in exercise of its powers under Article 136 or Article 32 of the Constitution and upon satisfaction that the earlier judgments have resulted in deprivation of fundamental rights of a citizen or rights created under any other statute, can take a different view notwithstanding the earlier judgment. ............................. 58. Otherwise also no ground as envisaged under Order XL of the Supreme Court Rules read with Order 47 of the Code of Civil Procedure has been pleaded in the review petition or canvassed before us using the arguments for the purposes of reviewing the judgment in Sarla Mudgal case, [JT 1995 (4) SC 331]. It is not the case of the petitioners that they have discovered any new and important matter which after the exercise of due diligence was not within their knowledge or could not be brought to the notice of the Court at the time of passing of the judgment. All pleas raised before us were in fact addressed for and on behalf of the petitioners before the Bench which, after considering those pleas, passed the judgment in Sarla Mudgal case. We have also not found any mistake or error apparent on the face of the record requiring a review. Error contemplated under the rule must be such which is apparent on the face of the record and not an error which has to be fished out and searched. It must be an error of inadvertence. No such error has been pointed out by the learned counsel appearing for the parties seeking review of the judgment. The only arguments advanced were that the judgment interpreting Section 494 amounted to violation of some of the fundamental rights. No other sufficient cause has been shown for reviewing the judgment. The words 'any other sufficient reason appearing in Order 47 Rule 1 CPC' must mean 'a reason sufficient on grounds at least analogous to those specified in the rule' as was held in Chhajju Ram v. Neki, [ AIR 1922 PC 112 ] and approved by this Court in Moran Mar Basselios Catholicos v. Most Rev. The words 'any other sufficient reason appearing in Order 47 Rule 1 CPC' must mean 'a reason sufficient on grounds at least analogous to those specified in the rule' as was held in Chhajju Ram v. Neki, [ AIR 1922 PC 112 ] and approved by this Court in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius, [ AIR 1954 SC 526 ] Error apparent on the face of the proceedings is an error which is based on clear ignorance or disregard of the provisions of law. In T.C. Basappa v. T. Nagappa, [ AIR 1954 SC 440 ] this Court held that such error is an error which is a patent error and not a mere wrong decision. In Hari Vishnu Kamath v. Ahmad Ishaque [ AIR 1955 SC 233 ], it was held: 23. ... It is essential that it should be something more than a mere error; it must be one which must be manifest on the face of the record. The real difficulty with reference to this matter, however, is not so much in the statement of the principle as in its application to the facts of a particular case. When does an error cease to be mere error, and become an error apparent on the face of the record? Learned Counsel on either side were unable to suggest any clear-cut rule by which the boundary between the two classes of errors could be demarcated. Mr. Pathak for the first respondent contended on the strength of certain observations of Chagla, C.J. in - 'Batuk K. Vyas v. Surat Borough Municipality, [ AIR 1953 Bom 133 ] that no error could be said to be apparent on the face of the record if it was not self-evident and if it required an examination or argument to establish it. This test might afford a satisfactory basis for decision in the majority of cases. But there must be cases in which even this test might break down, because judicial opinions also differ, and an error that might be considered by one Judge as self-evident might not be so considered by another. This test might afford a satisfactory basis for decision in the majority of cases. But there must be cases in which even this test might break down, because judicial opinions also differ, and an error that might be considered by one Judge as self-evident might not be so considered by another. The fact is that what is an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case.' Therefore, it can safely be held that the petitioners have not made out any case within the meaning of Article 137 read with Order XL of the Supreme Court Rules and Order 47 Rule 1 CPC for reviewing the judgment in Sarla Mudgal case. The petition is misconceived and bereft of any substance." 17. In a review petition, it is not open to this Court to re-appreciate the evidence and reach a different conclusion, even if that is possible. Conclusion arrived at on appreciation of evidence cannot be assailed in a review petition unless it is shown that there is an error apparent on the face of the record or for some reason akin thereto. This Court, in Kerala State Electricity Board v. Hitech Electrothermics & Hydropower Ltd. & Ors., [JT 2005 (7) SC 485], held as under: "10. ......In a review petition it is not open to this Court to reappreciate the evidence and reach a different conclusion, even if that is possible. Learned Counsel for the Board at best sought to impress us that the correspondence exchanged between the parties did not support the conclusion reached by this Court. We are afraid such a submission cannot be permitted to be advanced in a review petition. The appreciation of evidence on record is fully within the domain of the appellate court. If on appreciation of the evidence produced, the court records a finding of fact and reaches a conclusion, that conclusion cannot be assailed in a review petition unless it is shown that there is an error apparent on the face of the record or for some reason akin thereto. It has not been contended before us that there is any error apparent on the face of the record. It has not been contended before us that there is any error apparent on the face of the record. To permit the review petitioner to argue on a question of appreciation of evidence would amount to converting a review petition into an appeal in disguise." 18. Review is not re-hearing of an original matter. The power of review cannot be confused with appellate power which enables a superior court to correct all errors committed by a subordinate court. A repetition of old and overruled argument is not enough to re-open concluded adjudications. This Court, in Jain Studios Ltd. v. Shin Satellite Public Co. Ltd., [JT 2006 (7) SC 40: (2006) 5 SCC 501 ], held as under: "11. So far as the grievance of the applicant on merits is concerned, the learned counsel for the opponent is right in submitting that virtually the applicant seeks the same relief which had been sought at the time of arguing the main matter and had been negatived Once such a prayer had been refused, no review petition would lie which would convert rehearing of the original matter. It is 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 can be exercised with extreme care, caution and circumspection and only in exceptional cases. 12. When a prayer to appoint an arbitrator by the applicant herein had been made at the time when the arbitration petition was heard and was rejected, the same relief cannot be sought by an indirect method by filing a review petition. Such petition, in my opinion, is in the nature of 'second innings' which is impermissible and unwarranted and cannot be granted." 19. Review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order XLVII Rule 1 of CPC. In review jurisdiction, mere disagreement with the view of the judgment cannot be the ground for invoking the same. As long as the point is already dealt with and answered, the parties are not entitled to challenge the impugned judgment in the guise that an alternative view is possible under the review jurisdiction." 6. In review jurisdiction, mere disagreement with the view of the judgment cannot be the ground for invoking the same. As long as the point is already dealt with and answered, the parties are not entitled to challenge the impugned judgment in the guise that an alternative view is possible under the review jurisdiction." 6. A cue can, in this behalf, be also had from the decision rendered by a Division Bench of this High Court in the case of 'State of J&K & Ors. v. Govt. Handloom Silk Weaving Factory & Ors.', reported in 2016 (2) JKJ 795 [HC]', of which I was the author, wherein, it has been held as follows: "13. At the very outset it needs to be kept in mind that review jurisdiction of the Court if limited. It is settled law that it is only an error apparent on the face of the record which can be considered and one into by the Court. In the present review petition, the grounds of facts of law urged in review petitions, as narrated above, including the submissions made at the Bar by the Learned Counsels appearing in these review Petitions, which in content and substance were the same as taken in the respective review petitions, cannot in any manner be considered as errors on the face of record. Instead the grounds sought to be raised and urged may constitute grounds of appeal alone. In fact, the instant review petitions on grounds enumerated herein appear to be disguised Second Appeals. As noticed above, the grounds taken by the review petitioners 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., the only course available for the aggrieved party is to go in appeal. Such grounds do not constitute errors of fact or of law on the face of the record as would call for a review." 7. Applying the ratio of the law laid down above to the case on hand, it is manifestly clear that the scope of a review is very limited. The power of review is exercised when some mistake or error, apparent on the face of the record, is found. Applying the ratio of the law laid down above to the case on hand, it is manifestly clear that the scope of a review is very limited. The power of review is exercised when some mistake or error, apparent on the face of the record, is found. A mistake or an error, apparent on the face of the record, means a mistake or an error which is, prima facie, visible and does not require any detailed examination. Such an error must strike one on mere looking at the record and should not require any long-drawn process of reasoning on the points where there may, conceivably, be two opinions. In the present case, the petitioner has not been able to point out any error, apparent on the face of the record, but, on the contrary, under the guise of the instant review petition, the petitioner is challenging the order passed by this Court, which is under review. 8. In the above background coupled with the law discussed hereinabove, I do not find any error, apparent on the face of the record, in the judgment dated 13th of March, 2015, passed by this Court in 561-A No. 146/2012; Cr. MP No. 306/2012, as would warrant its recall on review. The review petition shall, therefore, stand dismissed. 9. Registry is directed to send down the trial court records forthwith through whatever speedy mode. 10. The petitioner is directed to appear before the trial Court on 18.08.2018. 11. The trial court shall proceed in the matter as directed in terms of this Court order dated 13th of March, 2015 passed in 561-A No. 146/2012.