Dismissing Plea On Ground Of Laches At Post-Admission Stage Not An Apparent 'Error Of Law' Warranting Review: Jammu & Kashmir High Court

“The question of delay and laches could not have been entertained and considered by the court after the admission of the writ petition cannot by any stretch of imagination said to be ground available to the petitioner to seek review of the judgment/order under review either on the ground that the judgments supporting the said contention of the petitioner came to be discovered after the passing of the judgment under review or on the ground that entertaining and accepting the ground of delay and laches at post-admission stage is an apparent error of law”, Chief Justice N Kotiswar Singh & Justice Javed Iqbal Wani observed.

The pronouncement to this effect came in response to a review petition filed by petitioner seeking reconsideration of the court's previous judgment dated June 28, 2022.

In this matter, the petitioner alleged that his land was taken over illegally by the respondents in 1953 to construct a police station without acquiring it lawfully. As a consequence, the petitioner approached the court and prayed for a writ of mandamus to direct the respondents to hand over possession of the land to the petitioner or initiate proceedings under the Land Acquisition Act and pay compensation as per the present market value.

The respondents, in their reply, denied the petitioner's claims and raised a preliminary objection that the petition is barred by laches, as it was filed after around 68 years without a reasonable explanation for the delay.

After admitting the petition for hearing, the court required the respondents to file a counter affidavit, which reiterated their stand on the doctrine of laches. The petitioner did not file any rejoinder, and subsequently, the petition was dismissed.

The petitioner seeks a review of the judgment/order on two primary grounds. Firstly, the dismissal of the petition based on delay and laches after it was admitted for hearing is contested. Secondly, the petitioner asserted that there is an apparent error of law in the original judgment that requires proper consideration, as it is applicable to their case.

Adjudication on the matter Justice Wani for the bench at the very outset clarified that once a judgment is pronounced or order is made, the court becomes is functus officio (ceases to have control over the matter) and as such a judgment or order becomes final and cannot be altered, changed, varied or modified, however, the doctrine of the review is an exception to this principle of law and can be allowed in certain circumstances only as provided and envisaged under Section 114 read with Order 47 CPC.

Explaining the principles of law concerning the review of a court's judgment the bench observed that the power of review is a substantive right but can only be exercised on limited grounds, as prescribed in Order 47 Rule 1 of the Code of Civil Procedure. The court clarified that a review is not an appeal in disguise, and an erroneous decision cannot be reheard and corrected under the review jurisdiction.

Deliberating on the petitioner's contention that the plea of delay and laches could not be entertained after the admission of the petition, the court held that the respondents had raised the plea of delay and laches at both pre-admission and post-admission stages, and the petitioner did not contest it during the hearing.

As such, the court found no merit in the argument that the plea was considered at the wrong stage and accordingly the review petition was dismissed.

Case Title: Abdul Rashid Wani Vs UT of J&K

Citation: 2023 LiveLaw (JKL) 197

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