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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF APRIL, 2022
PRESENT
THE HON’BLE MR. JUSTICE B. VEERAPPA
AND
THE HON’BLE MR. JUSTICE H. P. SANDESH REVIEW PETITION NO.73/2021 IN WRIT PETITION No.25502/2018(S-CAT)
BETWEEN:
1 . CENTRAL BOARD OF DIRECT TAXES, NORTH BLOCK, NEW DELHI-110001, REP. BY ITS CHAIRPERSON.
2 . UNION OF INDIA, MINISTRY OF FINANCE, NORTH BLOCK, NEW DELHI-110001, REP. BY ITS UNDER SECRETARY.
...PETITIONERS
(BY SRI M.B. NARGUND, ASG A/W SRI B. PRAMOD, CGSC )
AND:
1 . SMT. ANURADHA GOYAL, W/O SATISH GOYAL, AGED 65 YEARS, R/AT FLAT NO.304, DHEERAJ MANOR, 24, R
2 KENSINGTON ROAD, ULSOOR, BENGALURU-560008.
2 . SRI PRAVIN KISHORE PRASAD S/O LATE NAWAL KISHORE PRASAD, AGED ABOUT 61 YEARS, R/AT FLAT NO.H-71, DIAMOND DISTRICT-150, KODIHALLI, GOLF VIEW AVENUE, OFF.OLD AIRPORT ROAD, BENGALURU-560008.
3 . SRI SATISH GOYAL, S/O LATE S. B. GOYAL, AGED 64 YEARS, R/AT FLAT NO.304, DHEERAJ MANOR, 24, KENSIGTON ROAD, ULSOOR, BENGALURU-560008.
...RESPONDENTS
(BY SMT. ANURADHA GOYAL, PARTY IN PERSON FOR R1; SRI PRAVIN KISHORE PRASAD, PARTY IN PERSON FOR R2; SRI SATISH GOYAL, PARTY IN PERSON FOR R3) …
THIS REVIEW PETITION IS FILED UNDER ORDER 47 RULE 1 READ WITH SECTION 114 OF CODE OF CIVIL PROCEDURE, PRAYING TO REVIEW THE ORDER DATED 21/01/2020 PASSED BY THIS COURT IN WRIT PETITION NO. 25502/2018 (S-CAT) AND ISSUE ANY OTHER WRIT OR DIRECTION WHICH THIS COURT DEEMS IT FIT IN THE CIRCUMSTANCES OF THE CASE.
THIS REVIEW PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS IS COMING ON FOR PRONOUNCEMENT OF ORDERS THIS DAY, B.VEERAPPA J., MADE THE FOLLOWING:
3 O R D E R
The present review petition is filed for review of the order dated 21st January, 2020 made in Writ Petition No.25502/2018 by a Co-ordinate Bench of this Court allowing the writ petition filed by the respondents; setting aside the order dated 7.2.2018 passed in O.A.Nos.621-623/2016 by the KAT and consequently directing the review petitioners herein to ensure that notional promotion of the respondents herein is considered as it was done in the case of D.B. Manival Raju - applicant in O.A.No.170/01698/2015 which was disposed of by the Central Administrative Tribunal on 21.6.2017.
I Facts of the case
The present respondents, filed O.A.Nos.621-623/2016 before the Central Administrative Tribunal, Bengaluru Bench to set aside the three orders dated 19.10.2015 as per Annexures-19, 20 and 21 and direct the review petitioners herein to grant applicants/respondents pro-forma/notional promotion to the post of Principal Commissioners of Income Tax and consequential retirement benefits as per ACC list dated 30.1.2015 Annexure-A5 for the panel year 2013-14 from 31.5.2014 when the posts were
4 created as per CBDT Notification-Annexure-A4, contending that the applicants/respondents through an All India Civil Service Examination conducted by the Union Public Service Commission (UPSC) were appointed to the Indian Revenue Service (IRS) and joined service in the Cadre of ITO Group 'A'/Assistant Commissioners of Income Tax and secured their regular promotions and finally reached to the post of Commissioner of Income Tax (CIT). Applicants retired on 30.9.2013, 25.5.2014 and 31.12.2014 respectively. It was further contended that the Department prepared a list of eligible candidates from the cadre of CIT to be promoted as Principal CIT against these 300 newly created posts of Principal CIT. The Departmental Promotion Committee (DPC) considered the eligible candidates and submitted its recommendations to the Appointments Committee of Cabinet (ACC) for approval of the proposal for empanelment of officers for promotion to the post of Principal CIT against the panel year 2013- 14 which was approved on 30.1.2015 and the names of the present applicants were figured at Serial Nos.11, 27 and 38 respectively in the list of officers approved in the regular panel. On the same day, the Department of Revenue, Ministry of Finance issued an order
5 Annexure-A6 giving effect to the approval of the ACC. Unfortunately, by the time, the order Annexure-A6 could be issued, these applicants had got already retired from service and consequently, they could not be promoted despite their names having been found in the promotion list approved by the ACC. Hence, on these and several other grounds raised, the applicants sought the reliefs as prayed for before the Central Administrative Tribunal.
The Tribunal, after hearing both parties, by the order dated 7th February, 2018 dismissed the original applications and confirmed the instructions contained in Office Memorandums of the Department of Personnel and Training (DoPT), Annexures-A7 and A8, holding that there is no infirmity in the impugned orders as held by the Hon'ble Supreme Court in the case Union of India etc., etc - vs- K.V. Jankiraman and others1. Being aggrieved by the said orders passed by the Central Administrative Tribunal, Bengaluru, the present respondents filed a writ petition i.e., W.P. Nos.25502/2018 before this Court.
1 (1991)4 SCC 109
6 4. Considering the rival contentions urged by both parties on merits a Co-ordinate Bench of this Court held that the facts on record would reveal that the present respondents and one D.B. Manival Raju, served as Commissioners of Income Tax in the office of the 2nd petitioner-the Income Tax Department; the 1st applicant retired on 30.9.2013 while serving as Commissioner of Income Tax and 2nd and 3rd applicants, who were also holding similar post, retired on 25.5.2014 and 13.12.2014 respectively. Even before their retirement, an order, dated 31.05.2013, was issued by the 1st petitioner-Department where a decision was taken to increase the strength of Commissioners in the Income Tax Department by promoting them from the post of Commissioner by creating 184 additional posts as per Annexure-A by taking existing 116 posts to 300. Admittedly, as on that date, all the three applicants, were serving as Commissioners of Income Tax at different offices under the 2nd review petitioner. It is prior to implementation of the order, they had been relieved from their services as stated supra and as such, they were in consideration zone for the panel year 2013-14. It was further held that the names of the applicants were considered by the Appointments Committee of the Cabinet (ACC)
7 for promotion to the post of the 1st respondent-Anuradha Goyal shown at Sl.No.11, 2nd respondent-Pavin Kishore Prasad at Sl.No.27, 3rd respondent-Satish Goyal at Sl.No.38 (which is shown as Satish Chand Goyal) vide Annexure-A5 dated 30.1.2015 and the applicant one D.B. Manival Raju in earlier application was shown at Sl.No.97 in the said list. Since Sri D.B. Manival Raju approached the Tribunal by filing an application in O.A.No.1698/2015, his application for consideration of notional promotion was allowed, thereby indicated that as on the date, though his name was due for consideration and as he was not promoted, he was entitled to be considered for notional promotion and to ensure that his eligibility for all benefits as if, he were to be in service at that time. Thereafter, though the respondents herein also approached the Tribunal by filing O.A.Nos.621-623/2016 for the same relief, the same was rejected observing that however, in the subsequent proceedings initiated by the respondents, the Tribunal had ignored to look into its own earlier order, and also the reasoning assigned by the Tribunal to consider the prayer of D.B. Manival Raju for notional promotion and consequential benefits is ignored, while considering the respondents' applications. However, there was no
8 parity in the order passed by the Tribunal while considering the prayer of respondents which was similar to that of D.B. Manival Raju. Admittedly, the present review petitioners, who were parties to the order dated 21st January, 2020 passed in Writ Petition No.25502/2018 by a Co-ordinate Bench of this Court, have not challenged the said order and as such, it has attained finality.
Very curiously, the present review petitioners filed a writ petition i.e., W.P.No.13203/2020 on 28.7.2020 challenging the order dated 21.6.2017 made in O.A.No.170/01698/2015 by the Central Administrative Tribunal, Bengaluru Bench against one D.B. Manival Raju and a Coordinate Bench of this Court by the order dated 16th March, 2021 allowed the said writ petition and quashed the order dated 21.6.2017 passed by the Central Administrative Tribunal in O.A.No.170/01698/2015.
Thereafter, after one year one month i.e., on 20.2.2021, the present review petition is filed mainly on the ground that the order relied upon by this Court while allowing Writ Petition No.25502/2018 has been set aside by a Co-ordinate Bench of this Court on 16th March, 2021.
9 7. We have heard the learned Counsel for both parties to the lis. II - Arguments advanced by the learned Additional Solicitor General
Sri M.B. Nargund, learned Additional Solicitor General along with Sri B. Pramod, learned Central Government Standing Counsel for the review petitioners contended with vehemence that, the writ petition filed by the respondents was allowed, only on the ground that similar application filed by one D.B. Manival Raju was allowed by the same Bench of Central Administrative Tribunal and one of the Member, who passed the order was also the Member, in the earlier Bench while passing the order. He would further contend that the decision to file present review petition before this Court was preceded by filing Writ Petition No.13203/2020 in the case of D.B. Manival Raju which was pending consideration. The main grounds for review of the order passed in writ petition are that as per para-6.4.4 of the Department of Personal and Training/DoPT OM No.22011/5/86 - Estt(D) dated 10.4.1989, the promotion will be made in the order of the consolidated select list and such promotion will only have prospective effect even in cases
10 where the vacancies relate to previous years and therefore, the respondents cannot claim the promotion from the date of vacancy arose and as held by the Hon'ble Supreme Court in the case of Uttaranchal and Another -vs- Dinesh Kumar Sharma, seniority cannot be claimed from the date when vacancy arose. A Co- ordinate Bench of this Court while allowing the writ petition also observed that on the date of passing of the impugned order by this Court, the review petitioners herein, who were also parties to the case of D.B. Manival Raju, have not challenged the said order passed by the Central Administrative Tribunal and therefore, the Tribunal ought to have maintained parity while passing the orders. Thereby the review petitioners filed Writ Petition No. 13203/2020 on 28.7.2020 against the order dated 21.6.2017 made in O.A.No.170/01698/2015 by the Central Administrative Tribunal, Bengaluru Bench in the case of one D.B. Manival Raju and another. Subsequently, the Co-ordinate Bench of this Court allowed the said writ petition on 16.3.2021. Therefore, it is contended that the order passed by this Court needs to be reviewed.
The learned ASG would further contend that in view of the provisions of Order 47 Rule 1 r/w Section 114 of Code of Civil
11 Procedure, when the very proposition of the order relied upon by the Co-ordinate Bench while granting the relief in favour of the present respondents, has been subsequently removed by another Co-ordinate Bench in W.P.No. 13203/2020 on 16.3.2021, there is an error apparent on the face of the record and is also contrary to the principle of law, in view of the subsequent judgment dated 16.3.2021 rendered in Writ Petition No. 13203/2020, the present impugned order passed in W.P.No.25502/2018 requires review. The learned ASG would further contend that the writ petition filed by the present respondents was allowed in view of the fact that the order dated 21.6.2017 passed by the Central Administrative Tribunal in O.A. No.170/01698/2015 in the case of D.B. Manival Raju and another has been subsequently set aside by the other Co- ordinate Bench on 16th March, 2021 in W.P.No.13203/2020. As such, there is an error apparent on the face of the record which requires review in exercise of power under Order 47 Rule 1 r/w Section 114 of the Code Of Civil Procedure.
In support of his contentions, the learned ASG relied upon the following dictums of the Hon'ble Supreme Court:
12 i) M.M. Thomas -vs- State of Kerala and Another2 particularly pagragraphs-14 and 17 to the effect that the High Court as a court of record has a duty to itself to keep all its records correctly and in accordance with law. Hence, if any apparent error is noticed by the High Court in respect of any orders passed by it, the High Court has not only power, but a duty to correct it. The High Court's power in that regard is plenary. If such power of correcting its own record is denied to the High Court, when it notices the apparent errors, its consequence is that the superior status of the High Court will dwindle down. Therefore, it is only proper to think that the plenary powers of the High Court would include the power of review relating to errors apparent on the face of the record.
ii) Shivdev Singh and Others -vs- State of Punjab and Others3 particularly paragraph-10 that there is
2 (2000)1 SCC 666 3 AIR 1963 SC 1909
13 nothing in Article 266 of the Constitution to preclude a High Court from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it.
iii) A.R. Antulay -vs- R.S. Nayak4, paragraph-140 holding that the highest Court in the land should not, by technicalities of procedure forge fetters on its own feet and disable itself in cases of serious miscarriages of justice. It is said that 'Life of law is not logic; it has been experience'. Those who do not put the teachings of experience and the lessons of logic out of consideration would tell what inspires confidence in the judiciary and what does not. Judicial vacillations fall in the latter category and undermine respect of the judiciary and judicial institutions, denuding thereby respect for law and the confidence in the even-handedness in the administration of justice by
4 AIR 1988 SC 1531
14 courts. It would be gross injustice, to decide alternate cases on opposite principles. The power to alter a decision by review must be expressly conferred or necessarily inferred. The power of review — and the limitations on the power — under Article 137 are implicit recognitions of what would, otherwise, be final and irrevocable. No appeal could be made to the doctrine of inherent powers of the court either. Inherent powers do not confer, or constitute a source of jurisdiction. They are to be exercised in aid of a jurisdiction that is already invested. The remedy of the appellant, if any, is recourse to Article 137; nowhere else. This appears to me both good sense and good law.
iv) Moran Mar Basselios Catholicos -vs- Most Rev. Mar Poulose Athanasius5 particularly paragraph-34 to review the error apparent on the face of the record.
Therefore, sought to allow the review petition.
5 AIR 1954 SC 526
III - Arguments advanced on behalf of the Respondents
Per contra, Respondent No.3-Sri Satish Goyal-Party-in- Person while justifying the order passed by the Co-ordinate Bench of this Court, contended that this Court after hearing both parties by the order dated 21st January 2020 allowed the writ petition on merits placing reliance on the order dated 21.6.2017 passed by the Central Administrative Tribunal in the case of D.B. Manival Raju, the applicant in O.A.No.170/01698/2015 and the review petitioners issued notification dated 31.5.2013 even before their retirement. Therefore, there is no error apparent on the face of record in allowing the writ petition by the Co-ordinate Bench of this Court and directing the review petitioners to consider the notional promotion of the respondents. He would further contend that the order 21st January, 2020 passed in Writ Petition No.25502/2018 on merits placing reliance on the order dated 21.6.2017 in D.B. Manival Raju - applicant in O.A.No.170/01698/2015 has reached finality and writ petition -W.P.13202/2020 filed calling in question, the said order 21.6.2017 passed by the Central Administrative Tribunal, has been subsequently set aside by another Co-ordinate
16 Bench of this Court by the order dated 16.3.2021 by allowing the writ petition. Now the present review petition is filed after a lapse of one year one month i.e., on 20.2.2021 and infact, the order dated 21.1.2020 passed by the Co-ordinate Bench of this Court is in accordance with law and there is no error apparent on the face of the record.
Sri Pravin Kishore Prasad, respondent No.2-Party-in- Person while adopting the arguments of Sri Satish Goyal-Party-in- Person/respondent No.3 contended that the Division Bench of this Court by the order dated 21st January, 2020 allowed Writ Petition No.25502/2018 by deciding the case on facts and merits and merely because a subsequent order dated 16.3.2021 is rendered by another Co-ordinate Bench of this Court in Writ Petition No.13203/2020 because of change of law, is not a ground for review of the order. Admittedly, though the present review petitioners were parties to writ Petition No.13203/2020, they never brought notice of the subsequent order dated 21.6.2017 passed by the Co-ordinate Bench of this Court while allowing Writ Petition No.25502/2018 on merits wherein reliance was placed on the order
17 dated 21.6.2017 in D.B. Manival Raju - applicant in O.A.No.170/01698/2015 which has reached finality. Thereby, the review petitioners have not come to the Court with clean hands and there is no error apparent on the face of the record. Therefore, he sought to dismiss the review petition.
Smt. Anuradha Goyal, Party-in-Person/respondent No.1 adopting the arguments of respondent Nos.2 and 3 sought to dismiss the review petition.
The respondents/Parties-in-Person relied upon the following dictums of the Hon'ble Supreme Court:
i) Kamlesh Verma -vs- Mayawati and Others6 reported in paragraphs-9, 12.3 and 23;
ii) Inderchand Jain (Dead) through L.Rs., -vs- Motilal (Dead) through L.Rs.7 Paragraphs-7 to 11, 22 and 24; and also
iii) Review Petition (Civil) No.3948/2018 in Writ Petition (Civil) No.231/2016 and connected cases D.D. 11th January, 2021 (Bench consisting of four Hon'ble Judges of Supreme Court of India) holding that change in the law or subsequent
6 (2013)8 SCC 320 7 (2009)14 SCC 663
18 decision/judgment of a coordinate or larger Bench by itself cannot be regarded as a ground for review, dismissed the review petitions;
iv) Dr. Subramanian Swamy -vs- State of Tamilandu and others8 at paragraph-35;
v) Ram Sahu (Dead) through LRs., and Others -vs- Vinod Kumar Rawat and Others9
and sought to dismiss the review petition.
IV - Point for determination
In view of the above rival contentions urged by the learned Counsel for the parties, the only point that arises for our consideration is:
"Whether the review petitioners have made out a case to review the order dated 21st January 2020 passed by the Co-ordinate Bench of this Court in Writ Petition No.25502/2018 in exercise of power under Order XLVII Rule 1 r/w Section 114 of the Code of Civil Procedure?"
8 AIR 2015 SC 460 9 2020 SCC Online SC 896
19 V - Consideration 16. We have given our thoughtful consideration to the arguments advanced by the learned Counsel for the review petitioners as well as the Parties-in-Person and perused the entire material available on record carefully.
It is an undisputed fact that the respondents filed original applications before the Central Administrative Tribunal to quash the three orders dated 19.10.2015 issued by the present review petitioners and direct them to grant applicants/respondents pro- forma/notional promotion to the post of Principal Commissioners of Income Tax and consequential retirement benefits as per ACC list dated 30.1.2015 Annexure-A5 for the panel year 2013-14 from 31.5.2014 as per CBDT Notification-Annexure-A4. It was further case of the applicants before the Tribunal that the Departmental Promotion Committee (DPC) considering the eligible candidates submitted its recommendations to the Appointments Committee of Cabinet (ACC) for approval of the proposal for empanelment of officers for promotion to the post of Principal CIT against the panel year 2013-14 which was approved on 30.1.2015 and the names of
20 the present applicants were figured at Serial Nos. 11, 27 and 38 respectively in the list of officers approved in the regular panel. On the same day, the Department of Revenue, Ministry of Finance issued an order Annexure-A6 giving effect to the approval of the ACC. Unfortunately, by the time, the order Annexure-A6 could be issued, these applicants had got already retired from service and consequently, they could not be promoted despite their names having been found in the promotion list approved by the ACC and thereby, they sought the reliefs as prayed for before the Central Administrative Tribunal. The Tribunal dismissed the original applications and confirmed the instructions contained in Office Memorandums of the Department of Personnel and Training (DoPT), but in the case of D.B. Manival Raju - in identical circumstances on par with the present respondents/applicants/Parties-in-Person, the Tribunal by the order dated 21.6.2017, allowed O.A.No.170/01698/2015 and granted the reliefs as sought for therein.
It is also not in dispute that aggrieved by the said order, the present respondents/Parties-in-Person filed a writ petition i.e., W.P. No.25502/2018 before this Court challenging the order dated
21 7.2.2018 passed by the Tribunal and a Co-ordinate Bench of this Court after hearing both the parties and considering the case on merits, by the order dated 21st January, 2020 allowed the writ petition and set aside the order dated 7.2.2018 passed by the Tribunal in O.A.Nos.621-623/2016 holding that the applicants were entitled to the reliefs as sought for on par with D.B. Manival Raju - whose application was allowed by the Tribunal in O.A.No.170/01698/2015. The said order passed by this Court has reached finality. The present review petitioners, who were parties to the said writ petition have not challenged the said order which has reached finality, but very strangely filed Writ Petition No.13203/2020 challenging the order dated 21.6.2017 passed in O.A.No.170/01698/2015 in the case of D.B. Manival Raju wherein the present respondents/Parties-in-Person were not parties to the said proceedings without disclosing the fact that a Co-ordinate Bench of this Court by the order dated 21st January, 2020 while disposing Writ Petition 25502/2018 of the writ petition on merits also relied upon the order dated 21.6.2017 passed by the Tribunal in the case of D.B. Manival Raju in O.A.No.170/01698/2015. But in all fairness, it should have been brought to the notice of the
22 subsequent Co-ordinate Bench in the subsequent petition filed by the review petitioners wherein by the order dated 16th March, 2021 the writ petition was allowed and the order dated 21.6.2017 passed in the case of D.B.Manival Raju stated supra was set aside. But the present review petition is filed on 20.2.2021 after more than one year one month of passing of the order dated 21st January, 2020 by the Co-ordinate Bench of this Court allowing Writ Petition No.25502/2018 filed by the present respondents/Parties-in-Person mainly on the ground that subsequent Co-ordinate Bench has set aside the order dated 21.6.2017 in O.A.No.170/01698/2015 in the case of D.B. Manival Raju and thereby the present review petitioners are seeking review of the order dated 21st January, 2020 passed in Writ Petition No.25502/2018 in view of the provisions of Order XLVII Rule 1 of the Code of Civil Procedure.
It is also not in dispute that as on the date of the order dated 21st January, 2020 passed by the Co-ordinate Bench of this Court in Writ Petition No.25502/2018 while deciding the case on merits relied upon the order dated 21.6.2017 passed in O.A.No.170/01698/2015 in the case of D.B. Manival Raju which
23 was existing as on that date and binding on both parties. If the present review petitioners are really aggrieved by the said order, they ought to have filed an appeal before the Hon'ble Supreme Court instead of waiting one year one month and getting an order 16.3.2021 suppressing the order dated 21st January,2020 passed in Writ Petition No. 25502/2018 and thereby the review petition filed by the present review petitioners placing reliance on subsequent decision/change of law is not a ground for review in view of Explanation of provision of Order XLVII Rule 1 of the Code of Civil Procedure, which reads as under: "Explanation.-The fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment."
The Hon'ble Supreme Court while considering the provisions of Order XLVII Rule 1 of the Code of Civil Procedure in the case of Kamlesh Verma -vs- Mayawati and Others10 at paragraphs-15, 18, 19, 20, 20.1 and 20.2 has held as under:
10 (2013)8 SCC 320
" 15. An error which is not self-evident and has to be detected by a process of reasoning can hardly be said to be an error apparent on the face of the record justifying the Court to exercise its power of review. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error. This Court in Parsion Devi v. Sumitri Devi [(1997) 8 SCC 715] held as under : (SCC pp. 718-19, paras 7-9)
“7. It is well settled that review proceedings have to be strictly confined to the ambit and scope of Order 47 Rule 1 CPC. In Thungabhadra Industries Ltd. v. Govt. of A.P. [AIR 1964 SC 1372] this Court opined : (AIR p. 1377, para 11)
‘11. What, however, we are now concerned with is whether the statement in the order of September 1959 that the case did not involve any substantial question of law is an “error apparent on the face of the record”. The fact that on the earlier occasion the
25 court held on an identical state of facts that a substantial question of law arose would not per se be conclusive, for the earlier order itself might be erroneous. Similarly, even if the statement was wrong, it would not follow that it was an “error apparent on the face of the record”, for there is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterised as vitiated by “error apparent”. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error.’
Again, in Meera Bhanja v. Nirmala Kumari Choudhury [(1995) 1 SCC 170] while quoting with approval a passage from Aribam Tuleshwar Sharma v. Aribam Pishak Sharma [(1979) 4 SCC 389] this Court once again held that review proceedings are not by way of an appeal
26 and have to be strictly confined to the scope and ambit of Order 47 Rule 1 CPC.
Under Order 47 Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self- evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the court to exercise its power of review under Order 47 Rule 1 CPC. In exercise of the jurisdiction under Order 47 Rule 1 CPC it is not permissible for an erroneous decision to be ‘reheard and corrected’. A review petition, it must be remembered has a limited purpose and cannot be allowed to be ‘an appeal in disguise’.” (emphasis in original)
Review is not rehearing of an original matter. The power of review cannot be confused with appellate power which enables a superior court to correct all errors committed by a subordinate court. A repetition of old and overruled argument
27 is not enough to reopen concluded adjudications. This Court in Jain Studios Ltd. v. Shin Satellite Public Co. Ltd. [(2006) 5 SCC 501] , held as under : (SCC pp. 504-505, paras 11-12)
“11. So far as the grievance of the applicant on merits is concerned, the learned counsel for the opponent is right in submitting that virtually the applicant seeks the same relief which had been sought at the time of arguing the main matter and had been negatived. Once such a prayer had been refused, no review petition would lie which would convert rehearing of the original matter. It is settled law that the power of review cannot be confused with appellate power which enables a superior court to correct all errors committed by a subordinate court. It is not rehearing of an original matter. A repetition of old and overruled argument is not enough to reopen concluded adjudications. The power of review can be exercised with extreme care, caution and circumspection and only in exceptional cases.
When a prayer to appoint an arbitrator by the applicant herein had been made at the time when the arbitration petition was heard and was rejected, the same relief cannot be sought by an indirect method by filing a review petition. Such petition, in my opinion, is in the nature of ‘second innings’ which is impermissible and unwarranted and cannot be granted.”
Review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1 CPC. In review jurisdiction, mere disagreement with the view of the judgment cannot be the ground for invoking the same. As long as the point is already dealt with and answered, the parties are not entitled to challenge the impugned judgment in the guise that an alternative view is possible under the review jurisdiction.
Summary of the principles 20. Thus, in view of the above, the following grounds of review are maintainable as stipulated by the statute:
20.1. When the review will be maintainable:
(i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him;
(ii) Mistake or error apparent on the face of the record;
(iii) Any other sufficient reason.
The words “any other sufficient reason” have been interpreted in Chhajju Ram v. Neki [(1921- 22) 49 IA 144 : (1922) 16 LW 37 : AIR 1922 PC 112] and approved by this Court in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius [AIR 1954 SC 526 : (1955) 1 SCR 520] to mean “a reason sufficient on grounds at least analogous to those specified in the rule”. The same principles have been reiterated in Union of India v. Sandur Manganese & Iron Ores Ltd. [(2013) 8 SCC 337 : JT (2013) 8 SC 275]".
20.2. When the review will not be maintainable:
(i) A repetition of old and overruled argument is not enough to reopen concluded adjudications.
(ii) Minor mistakes of inconsequential import.
(iii) Review proceedings cannot be equated with the original hearing of the case.
(iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice.
(v) A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error.
(vi) The mere possibility of two views on the subject cannot be a ground for review.
(vii) The error apparent on the face of the record should not be an error which has to be fished out and searched.
31 (viii) The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition.
(ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived."
In the case of Ram Sahu (Dead through L.Rs. and Others -vs- Vinod Kumar Rawat and Others11, the Hon'ble Supreme Court at paragraph 33 held as under: "33.xxxxxxxxxxxxxxxxx 29. In Haridas Das v. Usha Rani Banik, (supra) this Court made a reference to the Explanation added to Order 47 by the Code of Civil Procedure (Amendment) Act, 1976 and held: “13. In order to appreciate the scope of a review, Section 114 CPC has to be read, but this section does not even adumbrate the ambit of
11 2020 SCC OnLine SC 896
32 interference expected of the court since it merely states that it ‘may make such order thereon as it thinks fit’. The parameters are prescribed in Order 47 CPC and for the purposes of this lis, permit the defendant to press for a rehearing ‘on account of some mistake or error apparent on the face of the records or for any other sufficient reason’. The former part of the rule deals with a situation attributable to the applicant, and the latter to a jural action which is manifestly incorrect or on which two conclusions are not possible. Neither of them postulate a rehearing of the dispute because a party had not highlighted all the aspects of the case or could perhaps have argued them more forcefully and/or cited binding precedents to the court and thereby enjoyed a favourable verdict. This is amply evident from the Explanation to Rule 1 of Order 47 which states that the fact that the decision on a question
33 of law on which the judgment of the court is based has been reversed or modified by the subsequent decision of a superior court in any other case, shall not be a ground for the review of such judgment. Where the order in question is appealable the aggrieved party has adequate and efficacious remedy and the court should exercise the power to review its order with the greatest circumspection.”" "33. In State of Haryana v. M.P. Mohla, (2007) 1 SCC 457 this Court held as under : (SCC pp. 465-66, para 27):
“27. A review petition filed by the appellants herein was not maintainable. There was no error apparent on the face of the record. The effect of a judgment may have to be considered afresh in a separate proceeding having regard to the subsequent cause of action which might have arisen but the same by
34 itself may not be a ground for filing an application for review.”"
While considering the provisions of Order 1 Rule XLVII of the Code of Civil Procedure in the case of S. Bagirathi Ammal -vs- Palani Roman Catholic Mission12 held that the error contemplated under Rule 1 of Order 47 CPC for permissibility of review must be such which is apparent on the face of the record and not an error which has to be fished out and searched. In other words, it must be an error of inadvertence. It should be something more than a mere error and it must be one, which must be manifest on the face of the record. When does an error cease to be mere error and becomes an error apparent on the face of the record depends upon the materials placed before the Court. If the error is so apparent that without further investigation or enquiry, only one conclusion can be drawn in favour of the applicant, the review will lie.
Admittedly, in the present case, it is not the case of the review petitioners that there is error apparent on the face of the record to review the order dated 21st January, 2020 passed by the
12 (2009) 10 SCC 464
35 Co-ordinate Bench of this Court in Writ Petition No.25505/2018, but the reason for filing the review petition is only because of change of law in a subsequent decision by another Co-ordinate Bench of this Court which is impermissible in view of the provisions of Explanation of the Order XLVII Rule 1 of the Code of Civil Procedure.
It is well settled that the first and foremost requirement while entertaining a review petition is that the order, review of which is sought, suffers from any error apparent on the face of the record and permitting the order to stand will lead to failure of justice. In the absence of any such error, finality attached to the judgment/order cannot be disturbed. An error, which is not self evident and to be detected by the process of reasoning, can hardly be said to be an error apparent on the face of the record, justifying the Court to exercise the power of review. Re-agitating the points already decided is impermissible in review proceedings and an error as contemplated under Order XLVII Rule 1 of Code of Civil Procedure, 1908, for permissibility of review, must be such, which is apparent on the face of the record and not an error which has to
36 be fished out and searched. In other words, it must be an error of inadvertence.
The Hon'ble Supreme Court while considering the powers of review under Article 137 of the Constitution of India in the case of Union of India v. Sandur Manganese & Iron Ores Ltd., and Others13 at paragraphs-12.3 and 23 held as under:-
"12.3. Any other sufficient reason. The words “any other sufficient reason” have been interpreted in Chhajju Ram v. Neki [(1921-22) 49 IA 144 : (1922) 16 LW 37 : AIR 1922 PC 112] and approved by this Court in Moran Mar Basselios Catholicos v. Mar Poulose Athanasius [AIR 1954 SC 526 : (1955) 1 SCR 520] , to mean “a reason sufficient on grounds, at least analogous to those specified in the rule”.
It has been time and again held that the power of review jurisdiction can be exercised for the correction of a mistake and not to substitute a view. In Parsion Devi v. Sumitri Devi [(1997) 8 SCC 715] , this Court held as under: (SCC p. 719, para 9)
13 (2013) 8 SCC 337
“9. Under Order 47 Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the court to exercise its power of review under Order 47 Rule 1 CPC. In exercise of the jurisdiction under Order 47 Rule 1 CPC it is not permissible for an erroneous decision to be ‘reheard and corrected’. A review petition, it must be remembered has a limited purpose and cannot be allowed to be ‘an appeal in disguise’.”
While considering the provisions of Sections 114, 113, 151 and Order XLVII Rule 1 of the Code of Civil Procedure in the case of Inderchand Jain (Dead) through L.Rs., -vs- Motilal (Dead) through L.Rs.,14 at paragraphs-7 to 11 has held as under:
14 (2009) 14 SCC 663
38 "7. Section 114 of the Code of Civil Procedure (for short “the Code”) provides for a substantive power of review by a civil court and consequently by the appellate courts. The words “subject as aforesaid” occurring in Section 114 of the Code mean subject to such conditions and limitations as may be prescribed as appearing in Section 113 thereof and for the said purpose, the procedural conditions contained in Order 47 of the Code must be taken into consideration. Section 114 of the Code although does not prescribe any limitation on the power of the court but such limitations have been provided for in Order 47 of the Code; Rule 1 whereof reads as under:
“17. The power of a civil court to review its judgment/decision is traceable in Section 114 CPC. The grounds on which review can be sought are enumerated in Order 47 Rule 1 CPC, which reads as under:
‘1. Application for review of judgment.—(1) Any person considering himself aggrieved—
39 (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed, or
(c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment of the court which passed the decree or made the order.’ ” [Ed.: As observed in State of W.B. v. Kamal Sengupta, (2008) 8 SCC 612 : (2008) 2 SCC (L&S) 735, SCC at p. 631, para 17]
An application for review would lie inter alia when the order suffers from an error apparent on
40 the face of the record and permitting the same to continue would lead to failure of justice. In Rajendra Kumar v. Rambai [(2007) 15 SCC 513 : AIR 2003 SC 2095] this Court held: (SCC p. 514, para 6)
“6. The limitations on exercise of the power of review are well settled. The first and foremost requirement of entertaining a review petition is that the order, review of which is sought, suffers from any error apparent on the face of the order and permitting the order to stand will lead to failure of justice. In the absence of any such error, finality attached to the judgment/order cannot be disturbed.”
The power of review can also be exercised by the court in the event discovery of new and important matter or evidence takes place which despite exercise of due diligence was not within the knowledge of the applicant or could not be produced by him at the time when the order was made. An application for review would also lie if the order has been passed on account of some
41 mistake. Furthermore, an application for review shall also lie for any other sufficient reason.
It is beyond any doubt or dispute that the review court does not sit in appeal over its own order. A rehearing of the matter is impermissible in law. It constitutes an exception to the general rule that once a judgment is signed or pronounced, it should not be altered. It is also trite that exercise of inherent jurisdiction is not invoked for reviewing any order.
Review is not appeal in disguise. In Lily Thomas v. Union of India [(2000) 6 SCC 224 : 2000 SCC (Cri) 1056 : AIR 2000 SC 1650] this Court held: (SCC p. 251, para 56)
“56. It follows, therefore, that the power of review can be exercised for correction of a mistake but not to substitute a view. Such powers can be exercised within the limits of the statute dealing with the exercise of power. The review cannot be treated like an appeal in disguise.”
In the case of Beghar Fourdation through its Secretary and Another -vs- Justice K.S. Puttaswamy (Retd) and Others in
42 Review Petition Diary No. 45777/2018 D.D. 11th January, 2021 while considering review petition, the Hon'ble Supreme Court has held as under:
"The present review petitions have been filed against the final judgment and order dated 26.09.2018. We have perused the review petitions as well as the grounds in support thereof. In our opinion, no case for review of judgment and order dated 26.09.2018 is made out, We hasten to add that change in the law or subsequent decision/judgment of a coordinate or larger Bench by itself cannot be regarded as a ground for review. The review petitions are accordingly dismissed."
Though the learned ASG relied upon the dictum of the Hon'ble Supreme Court in the case of M.M. Thomas -vs- State of Kerala and Another15 particularly paragraphs-14 and 16 wherein it has been held with regard to power and duty to review its own judgment that, the High Court, as a court of record, has a duty to itself to keep all its records correctly and in accordance with law.
15 (2000)1 SCC 666
43 Hence, if any apparent error is noticed by the High Court in respect of any orders passed by it, the High Court has not only power, but a duty to correct it. The High Court's power in that regard is plenary. If such power of correcting its own record is denied to the High Court, when it notices the apparent error, its consequence is that the superior status of the High court will dwindle down. Therefore, it is only proper to think that the plenary powers of the High Court would include the power of review relating to error apparent on the face of the record.
On careful perusal of the impugned order passed by the Co-ordinate Bench, this Court being a Court of record does not find any error apparent on the face of the record as the only ground taken by the review petitioners for review is the change in law made by the Co-ordinate Bench of this Court and the same is passed without bringing into the Court notice, the earlier order which is sought for review. Therefore, the said judgment has no application to the facts and circumstances of the present case.
Another judgment relied upon by the learned ASG for the review petitioners is in the case of Shivdev Singh and Others -vs-
44 State of Punjab and Others16 wherein a review petition came to be filed by persons who were not party to the previous proceedings. Under that circumstance and their interests though were sought to be affected by the decision, the Hon'ble Supreme Court dismissed the review petition. Admittedly, in the present case, the present review petitioners were parties to the orders passed by the Co- ordinate Bench, which is sought under review on merits as well as on decision passed in D.B. Manival Raju's case by the Central Administrative Tribunal. As such, the said judgment stated supra is not applicable to the facts and circumstances of the present case.
Another judgment relied upon by the learned ASG in the case of Moran Mar Basselios Catholicos and Another -vs- Most Rev. Mar Poulose Athanasius and Others17 wherein at paragraph-34 it is observed that the only defect pointed out was that no invitation of the meeting was given to the churches under the control of 1st defendant and certainly, there is an error apparent on the face of the record. Admittedly, as already stated supra, in the present case, except change of law passed in a subsequent judgment, the
16 AIR 1963 SC 1909 17 AIR 1954 SC 526
45 review petitioners have not made out any error apparent on the face of the record and thereby, the said judgment has no application to the facts and circumstances of the present case.
In another judgment relied upon by the learned ASG in the case of A.R. Antulay -vs- R.S. Nayak and Another18 (Criminal Appeal No. 468/1986) it has been held that the highest court in the land should not, by technicalities of procedure forge fetters on its own feet and disable itself in cases of serious miscarriages of justice. It is said that “Life of law is not logic; it has been experience”. But it is equally true as Cardozo said: “But Holmes did not tell us that logic is to be ignored when experience is silent”. Those who do not put the teachings of experience and the lessons of logic out of consideration would tell what inspires confidence in the judiciary and what does not, etc.
It was a case decided by the Hon'ble Supreme Court on merits of the criminal appeal while considering the constitutional provisions of Articles 131, 137, 139A, 136, 134, 140, 142, 145, 14, 21, 32 of the Constitution of India. In the case on hand, the review
18 AIR 1988 SC 1531
46 petition is filed under Order XLVII Rule 1 r/w Section 114 of the Constitution of India to review the order passed by the Co-ordinate Bench of this Court mainly on the ground of subsequent change in law by subsequent Co-ordinate Bench which is impermissible in view of the statutory provisions of Order XLVII Rule 1 Explanation of the Code of Civil Procedure. Thereby, the said judgment also has no application to the facts and circumstances of the present case.
VI - Conclusion
For the reasons stated above, the point raised in the present review petition is answered in the negative holding that the review petitioners have not made out any ground to review the order dated 21st January, 2020 made in Writ Petition No.25502/2018 passed by the Co-ordinate Bench of this Court in exercise of our review powers under Order XLVII Rule 1 r/w Section 114 of the Code of Civil Procedure.
VII - Result
In view of the above, we pass the following:
47 ORDER (i) The Review Petition filed by the Review petitioners is hereby dismissed as being devoid of any merits; and
(ii) No order as to costs.
Sd/-
Judge
Sd/- Judge
Nsu/-