” Law has to bend before justice.”
The dictionary meaning of the word ‘review’ is ‘the act of looking, offer something again with a view to correction or improvement‘. It cannot be denied that the review is the creation of a statute. A judgment is open to review inter alia, there is a mistake apparent on the face of the record under Rule 47 Rule 1 Civil Procedure Code,1908. A review of a judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error had crept in earlier by judicial fallibility. A review is required to be confirmed to the grounds mentioned under Order 47 Rule 1 of CPC therein. A review petition has a limited purpose and cannot be allowed to be “an appeal in disguise”. 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 C.P.C. Review literally and even judicially means re-examination or reconsideration. Basic philosophy inherent in it is the universal acceptance of human fallibility. Yet in the realm of law the Courts and even the statutes lean strongly in favour of finality of decision legally and properly made. Exceptions both statutorily and judicially have been carved out to correct accidental mistakes or miscarriage of justice.
Fundamental rule: an order made by the Court was final and could not be altered:-
In Raja Prithvi Chand Lal Choudhury v. Sukhraj Raj, AIR 1941 FC 1, the Court observed that even though no rules had been framed permitting the highest Court to review its order yet it was available on the limited and narrow ground developed by the Privy Council and the House of Lords. The Court approved the principle laid down by the Privy Council in Rajunder Narain Rae v. Bijai Govind Singh, 1836 (1) Moo PC 117, that an order made by the Court was final and could not be altered : “…nevertheless, if by misprision in embodying the judgments, errors have been introduced, these Courts possess, by common law, the same power which the Courts of record and statute have of rectifying the mistakes which have crept in…. The House of Lords exercises a similar power of rectifying mistakes made in drawing up its own judgments, and this Court must possess the same authority. The Lords have however gone a step further, and have corrected mistakes introduced through inadvertence in the details of judgments, or have supplied manifest defects in order to enable the decrees to be enforced, or have added explanatory matter, or have reconciled inconsistencies.”
What are the circumstances to file review?:-
1) Three circumstances to file review:-
In Haridas Das’case, the Hon’ble Supreme Court considered that there were only three circumstances in which review of a judgment or order is permissible, viz.,
(i) discovery of new and important matters or evidence which after the exercise of due diligence was not within the knowledge of the appellant;
(ii) such important matter or evidence could not be produced by the applicant at the time when the decree was passed or order made; and
(iii) on account of some mistakes or error apparent on the face of the record or any other sufficient reason.
2) Five circumstances to file review:-
The Hon’ble Karnataka High Court had succinctly put it in G. Venkatesh v. C. Gangaiah , (2008) 3 ICC 435 that review was permissible under five circumstances viz.,
(i) review can be made only when there is an error apparent on the face of the record, (ii) if a party has not highlighted all aspects of the case, it is not a ground on the basis of Haridas Das’s case;
(iii) review of its order can be made only when there is an error apparent on the face of the record. Omission on the part of the learned counsel for the review petitioners to cite an authority of law does not amount to error apparent on the face of the record (on the basis of Doka Samuel’s case;
(iv) review court shall not act as an appellate Court, as noticed in Meera Bhanja’s case ; and
(v) counsel’s failure to cite authorities does not amount to error apparent on the face of the record.
Recent observations by the Supreme Court on ‘Review’ application:-
(1) It has to be the duty of the Registry of every High Court to place the matter before the concerned Judge/Bench, so that the review application can be dealt with in quite promptitude.
(2) It is the duty and obligation of a litigant to file a review and not to keep it defective as if a defective petition can be allowed to remain on life support, as per his desire.
(3) It is the obligation of the Counsel filing an application for review to cure or remove the defects at the earliest.
(4) There may be absence of diligence on the part of the litigant, but the Registry of the High Courts is required to be vigilant.
(5) Procrastination of litigation Procrastination of litigation, in this manner, is nothing but a subterfuge taken recourse to in a manner that can epitomize cleverness in its conventional sense.
(6) High Courts requested not to keep the applications for review pending, as that is likely to delay the matter in every Court and also embolden the likes of the petitioner to take a stand intelligently depicting the same in the application for condonation of delay. See. Sasi (D) through Lrs. Vs. Aravindakshan Nair and others, 2017 (4) ALT (SC) (DB).
The power of review is not an inherent power:- It must be conferred by law either specifically or by necessary implication. The review is also not an appeal in disguise. It cannot be denied that justice is a virtue which transcends all barriers and the rules of procedures or technicalities of law cannot stand in the way of administration of justice. Law has to bend before justice. If the Court finds that the error pointed out in the review petition was under a mistake and the earlier judgment would not have been passed but for erroneous assumption which in fact did not exist and its perpetration shall result in a miscarriage of justice nothing would preclude the Court from rectifying the error. See. Lily Thomas, Etc. Etc. vs Union Of India & Ors, 2000 (2) ALD (Cri) 686 = 2000 (1) ALT (Cri) 363. S. Nagaraj And Ors. vs State Of Karnataka And Anr., 1993 (3) SCALE 548.
Exceptions both statutorily and judicially have been carved out to correct accidental mistakes or miscarriage of justice:-
Review literally and even judicially means re-examination or reconsideration. Basic philosophy inherent in it is the universal acceptance of human fallibility. Yet in the realm of law the Courts and even the statutes lean strongly in favour of finality of decision legally and properly made. Exceptions both statutorily and judicially have been carved out to correct accidental mistakes or miscarriage of justice. Even when there was no statutory provision and no rules were framed by the highest Court indicating the circumstances in which it could rectify its order the Courts culled out such power to avoid abuse of process or miscarriage of justice.
What is the basis for exercise of the power of review? :-
“It is impossible to doubt that the indulgence extended in such cases is mainly owing to the natural desire prevailing to prevent irremediable injustice being done by a Court of last resort, where by some accident, without any blame, the party has not been heard and an order has been inadvertently made as if the party had been heard.” See. Rajunder Narain Rae v. Bijai Govind Singh, 1836 (1) Moo PC 117; Raja Prithvi Chand Lal Choudhury v. Sukhraj Raj, AIR 1941 FC 1; H.A. Mohan Kumar And Ors. vs P. Muralidhar And Ors., 2005 (5) ALD 552.
Power of review can be exercised for correction of the mistakes and not to substitute a view:-
Rectification of an order thus stems from the fundamental principle that justice is above all. It is exercised to remove the error and not for distributing finality. When the Constitution was framed the substantive power to rectify or recall the order passed by this Court was specifically provided by Article 137 of the Constitution. Our Constitution- makers who had the practical wisdom to visualize the efficacy of such provision expressly conferred the substantive power to review any judgment or order by Article 187 of the Constitution and Clause (c) of Article 145 permitted this Court to frame rules as to the conditions subject to which any judgment or order may be reviewed. In exercise of this power Order 40 had been framed empowering this Court to review an order in civil proceedings on grounds analogous to Order 47, Rule 1 of the Civil Procedure Code. The expression, or any other sufficient reason in the clause has been given an expanded meaning and a decree or order passed under misapprehension of true state of circumstances has been held to be sufficient ground to exercise the power. Apart from Order 40, Rule 1 of the Supreme Court Rules this Court has the inherent power to make such orders as may be necessary in the interest of justice or to prevent the abuse of process of Court. The Court is thus not precluded from recalling or reviewing its own order if it is satisfied that it is necessary to do so for sake of justice. “The mere fact that two views on the same subject are possible is no ground to review the earlier judgment passed by a Bench of the same strength.” See. H.A. Mohan Kumar And Ors. vs P. Muralidhar And Ors., 2005 (5) ALD 552.
There be an end of law suits:-
In this context, it is important to remember an observation in 1941. His Lordship Chief Justice Gwyer, speaking for the Federal Court in Raja Prithwi Chand Lall Choudhary v. Sukrai, 1941 FC 1 observed as follows:-
“This Court will not sit as a Court of appeal from its own decisions, nor will it entertain applications to review on the ground only that one of the parties in the case conceives himself to be aggrieved by the decision. It would in our opinion be intolerable and most prejudicial to the public interest if cases once decided by the Court could be re-opened and reheard: “There is a salutary maxim which ought to be observed by all Courts of last resort — Interest reipublicae ut sit finis litium. (It concerns the State that there be an end of law suits. It is in the interest of the State that there should be an end of law suits.) Its strict observance may occasionally entail hardship upon individual litigants, but the mischief arising from that source must be small in comparison with the great mischief which would necessarily result from doubt being thrown upon the finality of the decisions of such a Tribunal as this.”
Error apparent must strike the court at once and not on a prolonged sequential logical interpretation:-
Even if the Division Bench went beyond its powers in a writ appeal, it would be as erroneous decision and not an error apparent on the face of record and cannot be rectified through review jurisdiction under Order 47 Rule 1 of CPC. (See. Para 31), Pulugoru Gopal Reddy and others Vs. Mandal Revenue Officer, Tirupathi (Urban) Mandal, Tirupathi and another, 2014 (2) ALT 576 (DB), 2014 (3) ALD 414 (DB).
If the omission of the counsel to cite a case-law is not a ground for review:-
In Doka Samuel v. Dr. Jacob, (1997) 4 SCC 478 it was held that the omission of the counsel to cite an authority of law does not amount to an error apparent on the face of the record so as to furnish a ground of review. The Hon’ble Karnataka High Court clarified in B. Sharma Rao v. H.Q. Assistant, 1997 AIHC 911 (Kant) that possibility of two interpretations of a provision of law is no ground of review.
If an amendment of an Act which was brought out with retrospective effect:-
In Raja Shatrunjit v. Mohd. Azmat, (1971) 2 SCC 200, it was noticed that a review would lie if a judgment was rendered erroneously on account of an amendment of an Act which was brought out with retrospective effect. In Gulam Abbas v. Mulla Abdul , (1970) 3 SCC 643 when court did not consider a circular having the force of law, the Supreme Court considered it to be a ground to review its earlier judgment. In State of West Bengal v. Kamal, (2008) 8 SCC 612 it was noticed that an order or a decision or judgment could not be corrected merely because it was erroneous in law or on the ground that a different view could have been taken by the Court on a point of fact or law and that the review court could not sit in appeal over the decision under review. However, in Green View Tea and Industries v. Collector, (2004) 4 SCC 122, the Supreme Court held that review was permissible where the High Court did not consider the material evidence on record on the ground that it would constitute an error apparent on the face of the record.
The scope of a review:-
The scope of a review under section 114 CPC read with Order 47 Rule 1 CPC fell for consideration before the Hon’ble Supreme Court in Parsion Devi Vs. Sumitri Devi, (1997) 8 SCC 715. The Hon’ble Apex Court observed that a judgment may be open to review, inter alia, if there is an error apparent on the face of the record; such an error being self-evident and no requiring a process of reasoning to detect it. The Apex Court pointed out that review jurisdiction would not be applicable to an ‘erroneous decision’ which needed rehearing and correction and cautioned that a review petition could not be allowed to be an appeal in disguise. See. Anapalli Bhaskar and others Vs. Gudi Venkateswarlu and others, 2013 (6) ALD 83.
Observations in interim order are not a binding precedent:-
Non-consideration of interim orders which are not a binding precedent, while deciding the main matter, is not a ground to review the main order of Court. See. Bokka Sree Rama Krishna Vs. Osmania University, rep. by its Registrar and others, 2014 (2) ALT 652 (DB).
Review is permissible where the Court did not consider the material evidence on record on the ground that it would constitute an error apparent on the face of the record. A judgment may be open to review, if there is an error apparent on the face of the record. As I referred to above, review can be made only when there is an error apparent on the face of the record. If a party has not highlighted all aspects of the case, it is not a ground on the basis of Haridas Das‘s case. Omission on the part of the learned counsel for the review petitioners to cite an authority of law does not amount to error apparent on the face of the record on the basis of Doka Samuel‘s case. Review court shall not act as an appellate Court, as noticed in Meera Bhanja‘s case. It concerns the State that there be an end of law suits. It is in the interest of the State that there should be an end of law suits. As was held in 2016, in P. Narasimhulu Vs. Land Acquisition Officer, Madanapalle and others, 2016 (3) ALT 250 (DB), discovery of new matter or evidence to receive in support is not a ground for review. Section 5 of Limitation Act would apply to an appeal or any application other than an application under any of the provisions of Order 21, CPC Thus, it exempts only applications under Order 21, CPC and not any proceedings arising from the order passed on such applications such as revision and review petitions (See. Vardhineedi Narasimha Rao Vs. Gadiraju Bapiraju, 2015 (6) ALT 740). In Bobbala Ramchandra Reddy Vs. Dasoju Rama Linga Chary and others, 2015 (3) ALT 78, it was observed that ”Amendment of decree If a decree is drafted incorrectly, Court, under Section 152, CPC, can order for its correction to be in consonance with the judgment rendered by it”. Observing this, it was held that lower appellate court erroneously dismissed the said application holding that the remedy for the petitioner is either second appeal or Review. As was held in Anapalli Bhaskar and others Vs. Gudi Venkateswarlu and others, 2014 (1) ALT 67, while exercising review jurisdiction, a clear distinction is essential between an error apparent on the face of record and an erroneous decision.