Subject as aforesaid, any person considering himself aggrieved
(a) By a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred,
(b) By a decree or order from which no appeal is allowed by, this Code, or
ADVERTISEMENTS:
(c) By a decision on a reference from a Court of Small Causes, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.
All decrees or orders cannot be reviewed. The right of review has been conferred by S. 114 and Order XLVII, Rule 1 of the Code. Section 114 provides that any person considering himself aggrieved: (a) by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred,
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(b) by a decree or order from which no appeal is allowed by this Code, or (c) by a decision on a reference from a court of small causes, may apply for a review of the judgment to the court which passed the decree or made the order on any of the following grounds mentioned in Order XLVII, Rule 1, viz.
ADVERTISEMENTS:
(1) Discovery by the applicant 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 made, or
(2) On account of some mistake or error apparent, on the face of the record, or
(3) For any other sufficient reason, and the court may make such order thereon as it thinks fit.
Explanation:
ADVERTISEMENTS:
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 powers of review are intended for correction of mistakes or errors apparent on the face of the record. Under Orissa Board of Revenue Act, 1951, Section 7 confers no wider powers of review on Board or its delegate the commissioner them the powers of review under Order XLVII, Rule 1, C.P.C.
The persons who were not party to the main petition before the Administrative Tribunal filed review petition and also on independent application challanging the earlier decision of the Tribunal. The Tribunal dismissed the independent application as not maintainable but reviewed its earlier decision.
The Supreme Court in special leave petition against the reviewed order held that no question arises as to the maintainability of the review petition before the Tribunal after going through the entire dispute. The SLP was dismissed.
The judgment of Tribunal becomes final and binding as between parties. It cannot be challenged by a person who is not a party to main petition by filing review petition and by special leave petition to Supreme Court.
Condition precedent:
The expression “from which an appeal is allowed” appearing in clause (a) of Order XLVII, Rule 1 should be construed liberally keeping in mind the underlying principle involved in Order XLVII Rule 1 (cc) that before making review applications no superior court has been moved for getting the self same relief, so that for the self same relief two parallel proceedings before two forums are not taken.
1. Discovery of new and important matter or evidence:
The party seeking review must show that he exercised greatest care in adducing all possible evidence and that the new evidence is such as is relevant and that if it had been given in the suit it might possibly have altered the judgment. It is not the discovery of new and important evidence alone which entitles a party to apply for a review, but the discovery of any new and important matter which was not within the knowledge of the party when the decree was made.
The case cannot be reopened because the law has been modified by subsequent legislation. The ground for review, viz., new matter or evidence must be something which existed at the date of the decree; the decree cannot be reviewed on the ground of the happening of some subsequent event.
Accordingly, subsequent reversals of a judgment on which the decision was based, a subsequent decision in another case between the parties or a different view of the law taken by the court in a subsequent case are not grounds for review.
An application for review on the ground of discovery of new evidence should show that: (i) such evidence was available and of undoubted character; (ii) that the evidence was so material that its absence might cause a miscarriage of justice; and (iii) that it could not with reasonable care and diligence have been brought forward at the time of the decree. [1939 Cal. 42]. The applicant has, however, to satisfy that there was no remissness on his part.
After dismissal of eviction suit by landlord on grounds of bona fide need of landlord’s son for opening of a shop on assumption that available accommodation was shop in review petition it was brought to the notice of Supreme Court that alleged ‘shop’ was only ‘godown’ and room cannot be used as ‘shop’. The assumption by court that available accommodation was shop was erroreous and no review was allowed.
2. Mistake or error apparent on the face of the record:
It is not limited to a mistake of fact. It may be of law. Failure to consider a ruling is not such an error. It should be an error which can be seen by a mere perusal of the record without reference to any other extraneous matter.
Where, therefore, the legal position is clearly established by a well-known authority, but the Judge has by some oversight failed to notice the same and thus gone wrong, it will be a case coming within the category of an error apparent on the face of the record. The error has to be patent, and an ordinary error of law or a mere failure to interpret a complicated point of law correctly is not an error of law apparent on the face of the record.
An error of law will justify a review because an error apparent on the face of the record will also include an error of law. In a review petition the Court may correct an error apparent on the face of the record but cannot pass a fresh decree for the first time. In returning the plaint the Court directed that costs incurred should abide the result of the suit. But in review application the Court directed the plaintiff to pay the costs of the defendants. The Court is not justified in doing so.
In absence of error apparent on face of record successive review petition against one order is not permissible. Similar unexplained inordinate delayed second review petition in absence of error apparent on the face of record is not maintainable.
Review petition is not maintainable against the orders against which the special leave petition has already been dismissed by the Supreme Court. Review in such circumstances is subversive of judicial discipline.
The administrative tribunal interpreting service rules directs that the main applicants in main petition be considered for promotion to police service between a particular period and not thereafter.
The applicants to review petition were not within the zone of eligibility for consideration to promotion and they were chance of future promotion. Such applicants are not ‘aggrieved persons’ and are not directly affected by the impugned order of the Tribunal. Review petition by them cannot be maintained.
The order of dismissal was confirmed by the Administrative Tribunal and Supreme Court refused the grant of special leave petition against it. Thereafter the Tribunal reviewed its order and set aside the order of dismissal of employee. Such exercise of review power is deleterious to the judicial discipline.
Once the Supreme Court has confirmed the order passed by the Tribunal that becomes final. The Tribunal cannot have any power to review the previous order which stood merged with the order of the Supreme Court.
If the Tribunal had no knowledge of dismissal of the SLP it might, in certain circumstances, review its earlier order, e.g., if it was found that the order was vitiated by any manifest error of law apparent on the face of record. After receiving the order of Supreme Court, the Tribunal’s exercise of power is are audacious and without any judicial discipline.
When the decree allowed to become final, the executing court or reference court cannot amend the decree by exercising powers under Order XLVII, Rule 1 and section 151. Omission to award additional amounts, enhanced interest and solatium and Land Acquisition Act are not clerical or mathematical errors but that amounts to non-award in that regard.
The objection about tenancy was rejected on the ground that there was no material in support of the plea. The High Court in revision, in these circumstances ought not to have interfered in the absence of any factual basis in support of the plea of tenancy raised.
Ambit of review:
Where plea was taken that Court had delivered judgment without waiting for written notes to be submitted by the party. But there was nothing in order sheet to show that Court would be waiting to deliver judgment after having reserved the same till submission of written notes. Held, that unless it was borne out of record, Court was helpless in review proceedings and it was not supposed to take such evidence to establish something not on record in the review proceedings.
No scope of review:
Where plea was taken that decision was rendered in ignorance of settled principle of law. But it was found by the High Court that decision was not erroneous and there was not error in fact or law on the face of record, as earlier decision had conclusively determined issue between parties and it would operate as res judicata. As such, no ground for review could be made out.
Review of order passed by Writ Court not subject to Sections 154, 254 of Income-tax Act, 1961:
The question of review under Section 154 or 254 of the Income-tax Act may have different implication. A review of an order passed by this Court in writ jurisdiction is not subject to Section 154 or 254 of the Income-tax Act.
At the same time, Section 141 of the Code of Civil Procedure (C.P.C.) excludes its application to writ proceedings. Whereas the Appellate Side Rules (A.S. Rules) for Article 226 of the Constitution in Rule 53 provides that save and except as provided in the A.S. Rules and subject thereto the procedure provided in C.P.C. in regard to suits shall be followed, as far as it can be made applicable, in all proceedings for issue of a writ.
The A.S. Rules does not provide for any procedure for review. Therefore as far as it can be made applicable, the provisions of C.P.C. would apply in principle to a proceeding for review in connection with writ proceedings.
3. Any other sufficient reason:
These words have been interpreted by their Lordships of the Judicial Committee in Chajju Ram v. Neki, to mean a reason sufficient on grounds at least analogous to those specified in (1) and (2).
Their Lordships observed in Chajju Ram’s case that the Code contemplates procedure by way of review by the court which has already given judgment as being different from that by way of appeal to a court of appeal. The three cases in which alone mere review is permitted are those of a new material overlooked by excusable misfortune, mistake or error apparent on the face of the record, or any other sufficient reason.
The phrase “any other sufficient reason” means a reason at least analogous to those specified in the rule immediately previously, namely, excusable failure to bring to the notice of the court new and important matter or evidence or mistake or error apparent on the face of the record.
The rule set out above is definitive of the grounds on which a review is permissible, but apart from it the court has an inherent power under S. 151 to review its wrong orders or decisions passed previously. But recourse to the inherent powers of the court is not permissible to justify a court in granting a review which is specifically provided for in Order XLVII, Rule 1.
In view of the Explanation added by the amendment of 1976, a subsequent decision of the Supreme Court or a larger Bench of the same court taking a contrary view on the point covered by the judgment does not amount to a mistake or error apparent on the face of the record.
Failure of the court to take into consideration an existing decision of the Supreme Court taking a different or contrary view on a point covered by its judgment would amount to a mistake or error apparent on the face of the record. But a failure to take into consideration a decision of the High Court would not amount to any mistake or error apparent on the face of the record.
It is true that the Supreme Court has held that the dismissal of SLP without speaking order does not constitute res judicata. The principle of res judicata is founded on public policy that the parties cannot be permitted to have the controversy directly or substantially in issue between the same parties or those claiming under the parties in the subsequent suit in the same proceedings in the subsequent stages cannot be raised once over. It is a sound principle of public policy to prevent vexation.
But in the present case when the self-same main order was confirmed by the Supreme Court, the exercise of the review power under Order XLVII, Rule 1, and C.P.C. is deleterious to the judicial discipline. Once the Supreme Court has confirmed the order passed by the Tribunal that becomes final. Therefore, the Tribunal cannot have any power to review the previous order which stands merged with the order passed by the Supreme Court.
G.S. Gupta v. Basheer Ahmed:
The High Court is a court of plenary jurisdiction and therefore is in a position always to prevent miscarriage of justice or to correct grave and palpable errors committed by it. The principles set down in Order XLVII, Rule 1, C.RC. may be employed by way of analogy, and a case of review directly covered under that provision would nevertheless be considered a case of plenary jurisdiction for correction of grave and palpable error committed by the court.
With that point of view, the court has to refer to the provisions contained in Order XLVII, Rule 1. If the court decides a legal question incorrectly, that cannot be a ground for review. It is for the higher court to set right that finding.
Substantially allowing a petition for review of its judgment in a case relating to the partitioning of the assets of the former Cochin royal family, the Supreme Court comprising Justice V.R Krishna Iyer, Justice D.A. Desai and Justice and A.D. Koshal, observed on March 27, 1980, that once an error in their judgment was revealed, no sense of shame or infallibility complex – obsessed them or dissuaded the court from the anxiety to be ultimately right, not consistently wrong. The Court said that it was amending its judgment of July 30, 1979, having found “an error” therein.
Section 114 of the Code of Civil Procedure has to be read with Order XLVII, Rule 1. Rule 1 of Order XLVII prescribes the ground upon which an application for review can be granted. Under the rule, a person aggrieved by a decree or order may apply for review of the decree or order on discovery of new and important matter of 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.
In the case in hand, however, it is not the case of the first respondent that the judgment was required to be reviewed because of the discovery of new and important matter or evidence. His case is that there was a bona fide mistake and error in the judgment apparent on the face of record and, therefore, it was necessary to review the judgment.
Whether there is a mistake or error apparent on the face of record in a case depends on individual facts. However, it must be borne in mind, that in order to come to the conclusion that there is a mistake or error apparent on the face of record, it must be one which must be manifest on the face of record.
The error or mistake be so manifest, so clear, that no court would permit such an error or mistake to remain on the record. In coming to the finding that a mistake or error is apparent on the face of record, the court is not required to look into other evidence. Such mistake or error should appear in the order itself or from any other document, which it referred in the said order. If such error occurs then the court is definitely bound to review such judgment.
On directions of High Court, contrary to the scheme of Bank for employment of temporary employees, are liable to be set aside.
Contempt jurisdiction is of original nature and it is not a review jurisdiction.
The High Court recalled its earlier order reinstating a teacher’s services in another proceeding where he was not a party and no notice had been given to him in this regard. Such order of recall was set aside.
Where therefore the court affirmed the judgment of the appellate court in declaratory and injunction suit under an apparent wrong impression that the suit land was physically possessed by the plaintiff, the review of earlier judgment was proper.
Writ petition was dismissed in terms of ‘minutes of order’ tendered by counsel of parties. It is not a consent order but an order in invitum. It is reviewable and also appealable.
Division Bench of High Court dismissed the suit for specific performance of contract and ordered for refund of amount deposited with court receiver. It is not proper for single Judge to review and hold that direction for refund of money was bad as deposit related to another suit. The proper remedy to avail the appeal against Division Bench judgment.
Appeal and Review:
Where an appeal has been preferred a review application does not lie. But an appeal may be filed after an application for review. In such event the hearing of the appeal will have to be stayed. If the review succeeds the appeal becomes infructuous for the decree appealed from is superseded by a new decree. No court can, however, review its order after it has been confirmed on appeal.
In case of allotment of houses in self financing scheme question with regard concession of profit and overhead charges was concluded in writ petition of allot-tees and Supreme Court dismissed special leave petition against it. Still the High Court re-opened the issue and granted the concession. Supreme Court set aside the review order of the High Court on ground of its being without jurisdiction.
A party who is not appearing from a decree or order may, however, apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the appellate court the case on which he applies for the review.
The proceedings for review and appeal differ in many particulars. First the primary intention of a review is the reconsideration of the object of the suit by the same Judge under certain conditions, while an appeal is a re-hearing by another court or tribunal.
Secondly, a point which may be a good ground for an appeal may not be a good ground for an application for review, e.g., an erroneous view of evidence or of law is no ground for a review though it may be a good ground for an appeal.
A review does not of necessity re-open questions already decided between the parties. The matter in issue is reopened when the application for review is allowed, while in the case of an appeal, the matter is re-opened as soon as the appeal is admitted.
Order XLVII, C.P.C. contemplates three stages in a review petition. It is open to the court to reject the review application if it finds that on ground for review has been made out.
It may issue notice to the other side before passing a final order on the review application and then, after hearing the parties, dismiss or allow the review application. If the application for review is dismissed, the matter ends there. If the application is allowed, then the order sought to be reviewed may either be modified or set aside.
The review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order XLVII, Rule 1, C.P.C. The review petition has to be entertained only on the ground of error apparent on the face of the record and not on any other ground.
An error apparent on the face of the record must be such an error which must strike one on mere looking at the record and would not require any long-drawn process of reasoning on points where there may conceivably be two opinions. The limitation of powers of court under Order XLVII, Rule 1, C.P.C. is similar to the jurisdiction available to the High Court while seeking review of the orders under Article 226.
As observed in Satyanarayan Laxminarayan Hegde v. Mallikarjun Bhavanappa Tirumale, “Where an alleged error is far from self-evident and if it can be established, it has to be established by lengthy and complicated arguments, such an error cannot be cured by a writ of certiorari according to the rule governing the powers of the superior court to issue such a writ.”
It is well-settled that the review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order XLVII, Rule 1, C.P.C. The Division Bench dealing with the review proceedings clearly showed that it had overstepped its jurisdiction under Order XLVII, Rule 1, C.P.C. by merely styling the reasoning adopted by the earlier Division Bench as suffering from a patent error.
It would not become a patent or error apparent in view of the settled legal position. In substance, the review Bench has re-appreciated the entire evidence, sat almost as court of appeal and reversed the findings reached by the earlier Division Bench.
Right or wrong, the earlier Division Bench judgment had become final so far as the High Court was concerned. It could not have been reviewed by reconsidering the entire evidence with a view to finding out the alleged apparent error for justifying the invocation of review powers.
An error apparent on the face of record must be such an error which must strike one on mere looking at the record and would not require any long drawn process of reasoning on points where there may conceivably be two opinions.
It is well-settled that the review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order XLVII, Rule 1, C.P.C. In connection with the limitation of the powers of the court under Order XLVII, Rule 1, while dealing with similar jurisdiction available to the High Court while seeking to review the orders under Article 226 of the Constitution of India, the Supreme Court, in the case of Aribam Tuleshwar Sharma v. Aribam Pishak Sharma and others speaking through Chinnappa Reddy, J. has made the following pertinent observations:
“It is true there is nothing in Article 226 of the Constitution to preclude the 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.
But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the persons seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground.
But, it may not be exercised on the ground that the decision was “erroneous on merits. That would be the province of a Court of Appeal. A power of review is not to be confused with appellate power which may enable an appellate court to correct all manner of errors committed by the subordinate Court.”
It is well-settled that the review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order XLVII, Rule 1, C.P.C.
In the impugned judgment, the Division Bench of the High Court has clearly observed that they were entertaining the review petition only on the ground of error apparent on the face of the record and not on any other ground.
So far as that aspect is concerned, it has to be kept in view that an error apparent on the face on the record must be such an error which must strike one on mere looking at the record and would not require any long drawn process of reasoning on points’ where there may conceivably be two opinions.
In the impugned review judgment which is the basis of the ultimate consequential decision in second appeal for review, curiously enough the Division Bench having noted the limited nature of its jurisdiction under Order XLVII, Rule 1, reconsidered the entire evidence and almost sat in appeal against the findings and judgment recorded by the earlier Division Bench.
The Supreme Court is of the view that the aforesaid approach of the Division Bench dealing with the review proceedings clearly shows that it has overstepped its jurisdiction under Order XLVII, Rule 1, C.RC. by merely styling the reasoning adopted by the earlier Division Bench as suffering from a patent error.
It would not become a patent error or error apparent in view of the settled legal position indicated earlier. In substance, the review Bench has re-appreciated the entire evidence, sat almost as court of appeal and has reversed the findings reached by the earlier Division Bench.
Even if the earlier Division Bench findings were found to be erroneous, it would be no ground for reviewing the same, as that would be the function of an appellate Court. Right or wrong, the earlier Division Bench had become final so far as the High Court was concerned. It would not have been reviewed by reconsidering the entire evidence with a view to finding out the alleged apparent error for justifying the invocation of review powers.
Who can apply for review?
Rule 1 of Order XLVII says that any person considering himself aggrieved by a decree or order, etc. may apply for a review of judgment. The aggrieved person is one who has suffered a legal grievance, i.e., against whom a decision has been pronounced which has wrongfully affected his title or wrongfully deprived him of something which he was entitled to.
A legal representative may apply for a review. The court cannot review suo motu or on its own motion nor can a superior court direct an inferior court to review its previous decision.
Application where rejected:
An application for review shall be rejected where there is no sufficient ground for review.
Application where granted:
No application for review, however, shall be granted without previous notice to the opposite party to appear and oppose the application. It shall also not be granted on the ground of discovery of new matter or evidence which the applicant alleges was not within his knowledge at the time of the passing of the decree or order, without strict proof of such allegation. (Order XLVII, Rule 4).
Where the applicant for grant of temporary injunction restraining execution of, eviction decree, had participated in the eviction suit as constituted attorney of the tenant and caretaker of disputed premises without claiming to be tenant from the landlord and the objection to execution of the eviction decree filed by his wife was rejected, there could be no basis for grant of temporary injunction to the applicant.
The grant of temporary injunction to the applicant in review petition was extraordinary, when injunction had been refused to the applicant both by the trial court and the High Court.
Where the judge, or judges, or anyone of the judges, who passed the decree or made the order, a review of which is applied for, continues or continue attached to the court at the time when the application for review is presented, and is not or are not precluded by absence or other cause for a period of six months next after the application from considering the decree or order to which the application refers, such judge or judges or any of them shall hear the application, and no other judge or judges of the court shall hear the same. (Order XLVII, Rule 5).
The intention of the Legislature was that if an error apparent on the face of the record is sought to be pointed out then rule 5 provides that the judge or judges who had fallen into the alleged error should have an opportunity to reconsider it. The period of 6 months has been provided so that even at the expiry of six months’ delay if this rule could work it should be adhered to.
It cannot be construed to mean that the right of review itself would stand negatived if for some reason such judge or judges ceased to occupy the position or are not available for any length of time beyond six months. Such an interpretation would render the availability of the remedy dependent on circumstances over which an applicant has no control.
Where the application for a review is heard by more than one judge and the court is equally divided, the application shall be rejected. Where there is a majority, the decision shall be according to the opinion of the majority. (Order XLVII, Rule 6).
An order of the court rejecting the application for review shall not be appealable, but an order granting the application may be objected to at once by an appeal from the order granting the application or in any appeal from the decree or order finally passed or made in the suit.
In case the application has been rejected on failure of the applicant to appear, the court may restore the rejected application to the file on being satisfied that the applicant was prevented by sufficient cause from appearing upon such terms as to costs or otherwise as it thinks fit. (Order XLVII, Rule 7).
No application to review an order made on an application for a review or a decree or order passed or made on a review shall be entertained. (Order XLVII, Rule 9).
Maintainability of review:
Where money suit filed by plaintiff against State specific department of Union, i.e., forest department was not impleaded, held that there was no illegality as under principle of respondent superior, Union Government was liable to the extent prescribed under Article 300 of Constitution. Such non-impleadment was mere error and not, per se amount to error apparent in face of record. Therefore, review petition was rejected.