AI Structured Summary
Not yet generated for this judgment
Judgment
Muzaffar Jan, J.—This petition has been submitted to review the judgment dated 27.5.1999 delivered in civil miscellaneous Appeal No.
103/96 by brother G.D Sharma, J.
Record reveals that a suit to declare the plaintiff-petitioner lessee of the portion of the premises in Shah cinema measuring 9780. sq. ft situated at
Qamarwari, Srinagar, was filed against the Union of India, its functionaries, functioneries of the State Government and two private individuals,
Nazir Ahmad and Abdul Qayoom. The petitioner also claimed compensation for loss suffered by him on account of his unauthorised eviction by
security forces from the suit premises and, in alternative for further direction to the official respondents to acquire the property in accordance with
law. Alongwith the suit an application for interim relief with the prayer that the official respondents should not pay any rent or compensation for the
area measuring 9780 sq.ft. to any person, excepting the petitioner, was also filed before the trial court. The trial court considered the interim
application on merits and, after hearing learned counsel for parties, passed the following order on 14.10.1995.
For these reason, therefore, as the important question of fact and law are involved and are to be adjudicated upon in the case, I think, it will be
proper to ask the security forces to deposit the rent of the disputed portion before the court and the Nazir of this court will keep it in the fixed
deposit in Jammu and Kashmir Bank Ltd., Branch Office Amira Kadal, Srinagar, till the matter is finally decided.
This order dated 14.10.1995 was challenged in CIMA No. 103/96 by Nazir Ahmad Shah in this Court. After hearing counsel for the parties this
court (brother Justice G.D Sharma) allowed the appeal vide order dated 27.5.1999 and set-aside the order of the trial court. It is against this order
dated 27.5.1999 that the plaintiff-petitioner has filed this review petition.
The main grounds taken in the review petition are that several documents submitted on record, establishing the tenancy of the petitioner in the suit
property, have not been considered while passing the order dated 27.5.1999 which has caused failure of justice. The respondents in their Income
Tax returns have admitted acceptance of rent from the plaintiff-petitioner as a tenant and this fact has been over-looked by the court. The order
suffers from error of law apparent on the face of the record insofar as the petitioner has been equated with a tenant who has voluntarily created a
new lease without the consent of the landlord in favour of the security forces. It is the petitioner who is entitled to occupational charges from
security forces. The judgment impugned in the appeal has been set-aside under a misconception of facts and circumstances made out from the
record and in order to correct the mistake on the record, the review petition be allowed.
The stand taken by the respondents is that the review petition is not maintainable as none of the ground recognised by law exist, nor have been
shown to exist, warranting review of the judgment. The court has considered the entire material submitted on record and passed the order on
merits. The appreciation or mis-appreciation of material existing on record does not constitute grounds for review. The petitioner is not a tenant of
the respondents and the respondents have not reflected the acceptance of rent from the petitioner as their tenant in the income tax returns which is
evident from the attested true copy of the returns certificate issued by the Income Tax authorities. The status of the petitioner is yet to be
determined in the proceedings pending before the trial court. The petitioner has remedy to claim damages against the party who forceably
dispossessed him. The law does not countenance the positions where a tenant has been dispossessed by a third party (not by the landlord) and the
tenant, thereafter, accepted his dispossession and starts recovering rent from the third party. The security forces took the possession of the entire
cinema and since the petitioner is not a tenant, he cannot claim any compensation from the respondents. On these objections on factual and legal
aspects no grounds are made out to review the order dated 27.5.1999. Therefore, the review petition be rejected.
Heard learned counsel for the parties at length.
Order XLVII of the CPC provides the grounds on which review can lie against a decree or order. The recognised grounds for review are:
a) discovery of new and important matter or evidence, which after the experience of the due diligence, was not within the knowledge of the party
seeking review and or could not be produced by said party at the time when the decree was passed or order made;
b) on account of some mistake or error apparent on the face of the record;
c) for any other sufficient reason.
It appears that the petitioners is seeking review on grounds (b) and (c) above reflected.
What constitutes an error apparent on the face of the record' has to be left to be determined judicially on the facts of each case. If a counsel
cannot properly explain the legal position, it is not a ground for review. Real distinction exists between a 'mere erroneous decision' and an 'error
apparent on the face of record; An error which has to be established by a long drawn process of reasoning on points and where more than one
view is possible, cannot be said to be an error apparent on the face of record. 'Error' contemplated by Order XLVII CPC means an error which is
patent and can be identified without any elaborate argument or which at a stares at the face. Failure to raise a plea, irrespective of its nature, is not
an error on the face of the record. A review is not intended to be in the nature of an appeal and is not provided to induce the court to change its
former view. If a decision is delivered by conscious application of mind leading to a result, which one party may consider to be erroneous, that is
not a ground for review. Taking a wrong view for review. These are some of the limitations laid down by the courts with regard to the exercise of
jurisdiction of review. The Division of this Court in case Muhammad Yousuf Magray v. Haji Ghulam Hassan 1998 SLJ 180 has ruled that an error
apparent on the face of record must be such a patent error which, in one glance, can be detected without advancing long drawn arguments on
either side; where there are two possible views regarding the interpretation or application of law vis-a-vis the particular facts of a case, taking one
view- even if it is erroneous- cannot be said to be an error apparent on the face of record. Even if a decision or order is erroneous in law or on
merits, it cannot be held that it is an error apparent on the face of the record. No hard and fast rule can be laid down to declare or to point out a
certain error to be an error apparent on the face of the record. The exercise of power under review will depend upon the peculiar facts of each
case.
Having regard to the provisions of Order XLVII CPC and the principles laid down by the courts and considering the facts and circumstances of
the present petition, it can be seen that the grounds stated by the petitioner for seeking review of the judgment do not constitute valid grounds for
review of the judgment. In the judgment sought to be reviewed, as regard the status of the petitioner, it has been categorically stated as under:-
After considering the respective contention of the learned counsel for the parties and going through the record, it becomes clear that respondent
No. 5 (petitioner herein) had not established a prima facie case in order to show that he was the tenant of the premises measuring 9782 sft in Shah
Cinema. He was to establish this fact after leading cogent evidence"".
The above finding has been recorded after consideration of material on record and all aspects of the case on merits. Whether the finding is wrong
or right requires re-appreciation and re-evaluation of the material existing on record, which is not permissible. As already observed that an
erroneous finding, assuming it to be so, as contended by the counsel for the petitioner, cannot be reversed in review jurisdiction. The finding in the
present case has been recorded after examining the record. Nothing has been submitted to show that the learned Judge did not go through the
record or did not consider the relevant and admissible evidence or material. The finding of the court is prima facie and it has been left open to the
petitioner to prove his claimed status in trial after leading cogent evidence.
This court in the judgement sought to be reviewed has further observed :
In other words he (petitioner herein) has failed to establish prima facie his title, right or interest in the premises in question.
This again is a finding recorded by the court upon taking a view on consideration of the record. It is, therefore, not justified from the record to hold
that the court had not considered the relevant material on record. On the contrary the observations of the court are based on material existing on
record.
As regards the observation of the Hon'ble Judge that the tenant dispossessed by a third party cannot claim rent on behalf of the original owner,
the relevant portion of the order passed by brother G.D. Sharma, J. is reproduced as under:-
It is established proposition of law that a tenant cannot rent from a third person because such a mode is prohibited under J&K Shops and Rent
Control Act as Sub-letting itself becomes a ground for eviction. The Transfer of Property Act also does not permit the acceptance of rent by a
lessee who can claim only the loss suffered by him by unauthorised eviction.
The contention of learned counsel for the petitioner that the said finding is contrary to law is devoid of any basis and needs to be rejected for
multiple reasons. Firstly, an erroneous decision of law cannot be accepted to be an error apparent on the face of record. Secondly, it is correct
proposition of law that unauthorised Sub-letting is a ground for eviction and that a lessee, who has been dispossessed by a third party can claim
damages against the third party. In a situation where a person has been dispossessed from the premises by a third party (not by the landlord), it is
important in law to determine the status of the person dispossessed. The remedy available will entirely depend upon the rights of the person
dispossessed qua the premises from which he is dispossessed. It is sell settled law that a person in settled possession can be dispossessed in
accordance with the procedure established by law. Dispossession affected by means others than legal, entail certain consequences. The party
dispossessed can claim restoration of possession or damages, depending upon the nature of right of the party dispossessed. In the instant case, the
petitioner is yet to establish his status as a tenant, his forcible dispossession and his right in the premises from which he has been dispossessed. The
petitioner in the suit has sought declaration for restoration of possession and also declaration for assessment of loss suffered by him. He has also
sought a direction for payment of occupational compensation to him. Whether the petitioner is entitled to these reliefs or not, is a matter which will
have to be decided by the trial court at the termination of the trial. At this interim stage, what petitioner claims is that the official respondents should
not pay rent to the ownes of Shah Cinema for the premises in question. Such a relief cannot be granted. In the judgment sought to be reviewed
brother Sharma J took the view that there questions can be determined during the trial of the suit. As to the occupational charges, which the
petitioner claims, is again a question to be established by him during trial. It is on these premises that the order of the trial court was set aside.
In my opinion, therefore, the petitioner cannot seek review of the judgment as the grounds on which review is sought are not available. The
decision sought to be reviewed, having been delivered in a miscellaneous appeal, has been made subject to the final decision in the case and it
cannot be said that the prima facie findings recorded by this Court are unsustainable. No ground has been made out for review of the judgment
dated 27.5.1999 passed in Civil Misc. Appeal No. 103/1996. This review petition is, accordingly, dismissed.
During the pendency of the review petition, this court had passed an order on 23.12.1999 in terms of which this Court had stayed the release
of the compensation/ rent with regard to the area measuring 9782 sq. ft and had directed that the same be deposited in a scheduled bank initially
for a period of 3 months. Consequent to the dismissal of the review petition, the said order is also vacated. Release of the amount, if any so
deposited in the scheduled bank alongwith interest thereon, shall be governed by the terms of order dated 27.5.1999 passed in CIMA No. 103/
1996 by this Court.
Records, if any summoned, to be returned to the concerned quarters.