Kalu Ram vs J and K Special Tribunal and Others

Permod Kohli, J.—Review is sought of the judgment dated 9-3-2004 in LPA (OW) No. 617 , of 1999 whereby a Letters Patent Appeal

preferred by the review petitioner against the judgment of the writ Court in OWP No. 421 of 1992 has been dismissed.

Vide the impugned order this Court while examining the validity of the order passed by the writ Court has held that there are concurrent findings

of all the authorities/ forums except the one whereby the case was remanded. It has been observed that the writ Court rightly declined to interfere

with the order impugned therein.

Learned counsel appearing for the petitioner has primarily urged two grounds before us.

(i) that the impugned judgment has been passed without hearing the petitioner

(ii) Judgment needs to be reviewed in view of findings recorded by the court.

Mr. Kalgotra, learned counsel appearing for the petitioner has vehemently argued that the appeal was decided without affording him full

opportunity of being heard as the case was adjourned for further arguments and came to be decided without hearing the counsel for the petitioner

(appellant in Letters Patent Appeal). He accordingly invokes provisions of Order 41 Rule 19 of Code of Civil Procedure.

One of us (Justice Permod Kohli) is a party to the order under review.

The appeal was taken up for hearing on 8-3-2004 when the learned counsel for the appellant argued the matter for almost half of the day. Not

only the arguments on behalf of the appellant were heard, but Mr. K.S. Puri, learned counsel appearing for the opposite side was also heard. At

the end of the day Mr. Kalgotra insisted for making further submissions and accordingly the case was adjourned to next day for making further

submissions, if any. On the following day i.e. 9-3-2004 the case was called before break but Mr. Kalgotra was not present. It was again taken up

after the break. He again did not appear. The Court accordingly passed order dated 9-3-2004 and following observations were recorded

regarding non-appearance of the learned counsel for the petitioner:

It may be mentioned that though Mr. Kalgotra made submissions at length yesterday, he sought time to make further submissions. We accordingly

postponed hearing for the day. Today when the case was taken up before the break, Mr. Kalgotra did not appear. We passed over the case till

after the lunch break, but Mr. Kalgotra did not turn up to make the submissions.

Mr. Kalgotra has referred the judgments reported as AIR 1981 J&K 31 (Ghulam Qadir v. Sikander) J. and K. Bank Ltd. Vs. Abdul Samad

Chiloo, , and urged that where the appeal is decided on merits in absence and without hearing the appellant, the order is not sustainable and the

court has the power to order re-hearing of the appeal under Order 41 Rule 19 of Code of Civil Procedure.

We have carefully gone through the law enunciated in the afore-said judgments. This is not a case where the appeal was decided on merits

without hearing the appellant. As observed above, Mr. Kalgotra was heard at length and he concluded his arguments and even the counsel for the

other-side was heard but Mr. Kalgotra insisted for making further submissions which he never made and did not appear on the next date of

hearing. The Court had no option but to pass the order. While passing the order all arguments addressed by Mr. Kalgotra have been noticed and

dealt with. Petitioner has not raised any grievance that any of the argument of Mr. Kalgotra has not been taken note of while passing the impugned

judgment. It is not a case of re-hearing as envisaged under Order 41 Rule 19 CPC. We are unable to accept this contention of the learned

counsel.

The second ground urged by Mr. Kalgotra is that the findings recorded in the impugned judgment on certain questions is erroneous. He has

urged the grounds for review as noticed in the memo of appeal from grounds (e) to (h). We have carefully examined these grounds in the memo of

review petition and canvassed before us. All the grounds relate to the merits of the case. As a matter of fact what has been urged is that the

judgment is erroneous on facts and in law. He has also referred to Variety Emporium Vs. V.R.M. Mohd. Ibrahim Naina, ; Dipak Banerjee Vs.

Lilabati Chakraborty, ; Ganga Bishan and Others Vs. Jai Narain, and AIR 2001 SC 266 (Ram Lakhan v. Presiding Officer and Ors.).

In case Ram Lakhan v. Presiding Officer AIR 2001 SC 286, the Advocate on record engaged by the appellant was unable to appear due to ill-

health and another Advocate who was required to mention had to leave the court due to ill-ness of his son and the appeal came to be dismissed in

default. Under these circumstances the Court re-called the order by exercising power of review under Order 47 Rule 1.

In case Ganga Bishan and Others Vs. Jai Narain, , the Apex Court observed as under:

Ordinarily the Supreme Court would be averse to interfere under Article 136 of the Constitution with the concurrent findings of fact recorded by

the High Court and the Trial Court. But where there are material irregularities affecting the said findings or where the court feels that justice has

failed and the findings are likely to result in unduly excessive hardship, the Supreme Court could not decline to interfere merely on the ground that

the findings in question are findings of fact.

In case Dipak Banerjee Vs. Lilabati Chakraborty, , the Apex Court observed as under:-

It is true that normally this Court is too reluctant to interfere with the concurrent findings of fact. But if the essential ingredients necessary for finding

of a fact have not in fact been found by the Courts below then this Court is bound to examine the question where injustice or wrong is done,.

In case Variety Emporium Vs. V.R.M. Mohd. Ibrahim Naina, , the Apex Court held as under:-

Concurrent findings of lower Court has relevance on the question whether Supreme Court should exercise its jurisdiction under Art 136 of the

Constitution to review a particular decision. That jurisdiction has to be exercised sparingly. But, that cannot mean that injustice must be

perpetuated because it has been done two or three times in a case. The burden of showing that a concurrent decision of two or more courts or

Tribunals is manifestly unjust lies on the appellant. But once that burden is discharged, it is not only the right but the duty of Supreme Court to

remedy the injustice.

It is accordingly contended that the findings recorded by the Court are required to be set aside being contrary to facts on record.

We have examined the findings recorded by the Court. The same were borne out from the record. Mr. Kalgotra has failed to find out anything

that the finding is not based on facts on record, in which the view taken is erroneous.

It is settled proposition of law that review jurisdiction cannot be exercised to correct the erroneous findings of fact and law. The review Court

can interfere only if there is error apparent on the face of the record. Neither from the grounds specified in the memo of review petition nor from

the judgment impugned any error apparent on the face of the record has been pointed out. The validity of erroneous judgment or order can only be

examined by an appellate Court and not by the review Court as it amounts to re-hearing of the entire matter. There is no error apparent on the face

of the record, enabling us to interfere with the findings recorded in the impugned judgment in exercise of the review jurisdiction. We accordingly

decline to interfere. There is no merit in this review petition on both the grounds canvassed before us. This review petition is accordingly dismissed.