Research › Search › Judgment

J&K High Court · body

2019 DIGILAW 165 (JK)

Mushtaq Ahmd Chaloo v. Mohamad Ayoub Chaloo

2019-03-28

RASHID ALI DAR

body2019
JUDGMENT : 1. Review of order dated passed by this Court in CR No. 10/2019 has been sought in terms of instant petition, while pleading that the relevance of the documents referred at Para 11 of the review petition needs to be considered, in light of the observations made by this Court while dismissing the review petition at para 11 (page 12) of the said judgment. 2. For appreciating the force of contentions raised on behalf of the petitioner herein it may be necessary to give a brief reference of the facts in which the review petition has been filed by the petitioner herein. 3. The suit had been filed by the respondent herein before the court of learned Additional District Judge, Srinagar in terms of Section 37 of Code of Civil Procedure wherein an application was filed by the petitioner herein for grant of leave to defend the suit. The said application was disposed of by learned trial court on 07-09-2017. The learned trial court had found the ground put forth for grant of leave to be illusory and sham and accordingly granted conditional leave. The petitioner has been directed to deposit an amount of Rs. 6,20,000/- in the court or in the alternative deposit cash security. Thereafter the review petition was filed before said court and same was dismissed vide order dated 23.01.2019 with an opinion that no ground had been made out for the same. 4. Intervention of this Court was sought by medium of CR No. 10/2019 with the plea that orders passed by the learned trial court was bad. The same petition was dismissed vide order dated 19.02.2019. In the petition, the ground had been taken that the approach of the learned trial court in passing order dated 07.09.2017 and 23.01.2019 was improper and had virtually incapacitated the petitioner herein to defend the suit. According to the petitioner leave granted had to be unconditional and there should have been no order for deposition of the amount or for having the security deposition. 5. Mr. Bhat learned counsel appearing for the petitioner has laid emphasis on the contentions put forth in terms of para 8 of the instant petition. Reference of the judgment of Hon’ble Apex Court in AIR 1977 SC 577 and Delhi High Court in AIR 2001 Delhi 341 has been given at the same page. 5. Mr. Bhat learned counsel appearing for the petitioner has laid emphasis on the contentions put forth in terms of para 8 of the instant petition. Reference of the judgment of Hon’ble Apex Court in AIR 1977 SC 577 and Delhi High Court in AIR 2001 Delhi 341 has been given at the same page. Reference has also been made of the judgment of this court in AIR 2011 J&K. 6. It is his further contention of learned counsel that since this court had been of the view that if on receipt of the inquiry, ordered on complaint (filed by the petitioner herein against the respondent before the learned CJM, Srinagar regarding the cheque in question) that the respondent had taken undue advantage of the trust and the confidence and virtually retained one cheque from the cheque book, cognizance had been taken, ground for grant of unconditional leave might have been made out. Reference is also made of Annexure II of the instant petition in terms of which application has been forwarded by learned CJM to SHO police station concerned for lodging the FIR, in case commission of cognizable offence was made out and in case application had been moved by the applicant for lodgment of the FIR. The SHO had to furnish compliance report before 20th September 2015. The order has been passed on 8th September 2015. Copy of the FIR, if any, registered has not been brought on record earlier when revision petition was heard and disposed of. Even now no such copy has been produced. Rather arguments is raised that the police has furnished the report, uncertified copy of which is on record, bearing date 18-09-2015 making mention of how it proceeded in the matter and during the process so made, copies of the bills were produced and some other documents including those of Sales Tax Department had been gone through and it found that the respondent herein had kept cheque in his custody. However, action if any taken is not made known. It also does found reference in order passed while dismissing the revision petition. The concerned police officer has made reference of statement of present petitioner and some other persons and framed the opinion, which admittedly was not accepted by the Court for taking cognizance against the respondent and for opining the respondent committed any offence. It also does found reference in order passed while dismissing the revision petition. The concerned police officer has made reference of statement of present petitioner and some other persons and framed the opinion, which admittedly was not accepted by the Court for taking cognizance against the respondent and for opining the respondent committed any offence. Even police has not lodged any FIR on it as per material before court, if it was directed to lodge FIR and if any cognizable offence had been committed. 7. The scope for interference for reviewing an order is limited to cases which fall within the parameters delineated under order 47 of CPC read with Section 114. The remedy by way of review is on the foundation of an implied admission of human fallibility and desire to serve truth, so that ends of justice may be attained. It requires to be borne in mind that the legality of order passed by learned Additional District Judge on 23.01.2019 and earlier order had to be seen in the revision petition which was dismissed on 19.02.2019. The review if any required to be made of the order passed in the revision is to be seen in that background. The observation in the order dated 19.02.2019 passed by this court, had reference to the production of the documents mentioned therein regarding the cognizance etc viz-a-viz the trial court and not this Court. Admittedly no document had been produced before learned trial court to bring under cloud the veracity of the case as put forth in terms of the suit filed against the present petitioner. While viewing the instant case in light of the events quoted above, I am of the opinion that there has been no error apparent on the face of the record on the part of this court which needs to be looked into by exercising powers under Section 114 CPC read with Section 47 of CPC. Any other sufficient cause as meant by the statute too is not meted out. Power of review cannot be substituted for an appeal nor review can be an appeal in disguise. Their Lordship of Hon’ble Apex Court in numerous cases have enunciated that the power of review with the courts is to have correct Ex-debito Justitiate the errors which are apparent on the face of the record. Power of review cannot be substituted for an appeal nor review can be an appeal in disguise. Their Lordship of Hon’ble Apex Court in numerous cases have enunciated that the power of review with the courts is to have correct Ex-debito Justitiate the errors which are apparent on the face of the record. It cannot be exercised on the premise that material now placed before superior court, if had been presented before the court of inferior jurisdiction, a contrary offence may have been framed. It was for the petitioner himself to produce any material he intended to rely before the trial court either earlier or when order was passed in Review Petition. This Court cannot upset the course adopted by learned trial court for exercise of discretion in the manner referred supra this background. 8. In view of the observation made hereinabove, no ground for interference is made out. Petition is held liable for dismissal and is accordingly dismissed.