Research › Search › Judgment

J&K High Court · body

2018 DIGILAW 550 (JK)

Abdul Aziz Mir v. Mushtaq Ahmad Khan

2018-07-21

JANAK RAJ KOTWAL

body2018
JUDGMENT : 1. Heard Mr. J. H. Reshi, Advocate, appearing on behalf of the petitioner and perused the record. 2. By the medium of this application filed under section 114 read with Order 47 Rule 1 Code of Civil Procedure (for short the Code), petitioner seeks review and thereby setting aside of the judgment dated 03.07.2018 rendered by this Court (Bench) in CR No. 43/2013 (hereinafter to the referred as the impugned judgment). 3. To start with, learned counsel, while referring to paragraph 2 of the impugned judgment, seeks to point out that, whereas this Court has obliquely referred to the Division Bench judgment in LPA No. 73/2007 filed by the decree holder, the order dated 24.03.2015 (annexure-B) passed by this Court, whereby the petitioner was granted leave to file appeal against the order and decree under execution, the judgment dated 20.05.2015 (annexure-C) rendered by a learned Division Bench in LPA No. 59/2015, whereby LPA against the order dated 24.03.2015 was dismissed and the order dated 07.09.2015 (annexure-D), whereby SLP filed by the decree holder against LPA judgment dated 20.05.2015 was also dismissed by the Hon’ble Apex Court, have been ignored. Learned counsel submitted that this Court has committed error apparent on the face of the record by ignoring these orders/judgment. 4. The aforementioned ground of review of the impugned judgment is not only without any substance, but is misconceived too, given the core question raised for determination of this Court in the revision petition. The revision petition was directed against an order, whereby the trial/executing court had dismissed petitioner’s application under section 47 of the Code filed in the execution proceedings commenced by the decree holder for execution of decree dated 24.06.1997 and the question raised for determination of this Court, as formulated in paragraph 6 in the impugned judgment, undisputedly was: “whether the trial court lacked inherent jurisdiction to entertain and try the suit, having regard to the subject matter thereof and therefore, the judgment and decree dated 24.06.1997 are nullity for having been passed without jurisdiction?” 5. In paragraph No. 2 of the impugned judgment, this Court has referred to the relevant background facts leading to the filing of the revision petition before this Court. In paragraph No. 2 of the impugned judgment, this Court has referred to the relevant background facts leading to the filing of the revision petition before this Court. Reference has also been made to the order dated 24.03.2015 (supra), whereby this Court granted the petitioner leave to file appeal against the judgment and decree 24.06.1997 under execution as also to the LPA judgment dated 20.05.2015, whereby LPA against the order dated 24.03.2015 was dismissed. 6. The question raised before this Court in the revision petition related to the jurisdiction of the trial court to pass the judgment and decree under execution as the plea taken by the petitioner was that right of prior purchase was not available in respect of the given suit property in terms of section 5 of the Jammu and Kashmir Right to Prior Purchase Act (for short the Act). This question has been determined and answered by this Court on the basis of the law governing the field. The determination of the said question has no bearing with the reasons for which this Court vide order dated 24.03.2015 had granted the petitioner leave to file the appeal against the judgment and decree under execution and the reasons for which learned Division Bench dismissed the LPA against the said order vide judgment dated 20.05.2015, which got confirmation of the Supreme Court with the dismissal of the SLP on 07.09.2015. The grounds on which execution of a decree can be objected under section 47 of the Code are certainly different than the grounds on which leave to file appeal against a judgment can be granted to a person, who is not party to the judgment. 7. The other grounds of review of the impugned judgment as stated in this application and similarly demonstrated by the learned counsel at bar with vehemence indicate nothing but petitioner’s dissatisfaction with the reasoning recorded by this Court in determining the aforementioned question and dismissing the revision petition filed by the petitioner. The points raised inter alia relate to interpretation of section 9 of the Code and sections 5 and 9 of the Act given by this Court. Petitioner seems to convey that this Court has committed error of law on various counts and the interpretation to various provisions should have been given in a different way. The points raised inter alia relate to interpretation of section 9 of the Code and sections 5 and 9 of the Act given by this Court. Petitioner seems to convey that this Court has committed error of law on various counts and the interpretation to various provisions should have been given in a different way. In that, this application suffers from forum malum because under order 47 Rule 1 of the Code, review of a judgment can be sought only on the specified grounds mentioned therein, one of them being “some mistake or error apparent on the face of the record.” The errors as pointed out by the petitioner certainly do not fall in the category of the errors apparent on the face of the record. 8. This Court after analysis of the facts of the case and law governing the field has inter alia held that ‘lack of jurisdiction to hear a suit cannot be correlated with the non availability of the relief claimed in the suit’, that ‘only the court’ which can grant a relief, can decide the question as to whether such relief in respect of a suit property is available or not’ and that ‘it is the civil court, which can hear a suit for pre-emption and can decide whether right of prior purchase in respect of a given suit property is available or not'. This Court has also held that section 9 of the Act deprives right of prior purchase of the parties to the sale when the sale is made by the joint owner and that objection in terms of section 9 can be raised only against a vendor who had been party to the sale qua which right to prior purchase has been claimed. Redress for petitioner’s dissatisfaction with the view taken by this Court may lie somewhere else but not by invoking section 114 read order 47 of the Code. 9. Viewed thus, there is absolutely no merit in this review petition and the same is, therefore, dismissed in limine. 10. Redress for petitioner’s dissatisfaction with the view taken by this Court may lie somewhere else but not by invoking section 114 read order 47 of the Code. 9. Viewed thus, there is absolutely no merit in this review petition and the same is, therefore, dismissed in limine. 10. Before closing the matter, I may say that this review application has given me chance to notice a technical mistake in the heading of the copy of the impugned judgment dated 03.07.2018 (supra) placed on record as at the top of the first page thereof the number of the civil revision is written as ‘43/2016’ instead of ‘43/2013’ though at the bottom of each page the number is correctly written as ‘43/2013’. I, thus, order correction of this mistake, which is inadvertent indeed, and direct the Registry to make correction in the original judgment on the file, if the mistake occurs there too. 11. Since this matter relates to Srinagar Wing, the Registry shall send the record to that Wing after maintaining index in the Jammu Wing.