Calcutta High Court (Appellete Side)
Rabindranath De vs Manick Chandra Sasmal & Ors on 6 September, 2011
Author: Dipankar Datta
Bench: Dipankar Datta
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IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
Present : Hon'ble Justice Dipankar Datta
R.V.W. Nos. 3101 to 3103 of 2004
Rabindranath De
Versus
Manick Chandra Sasmal & ors.
For the petitioner : Dr. Indrajit Mandal, Advocate
Mr. Amit Banerjee, Advocate
For the opposite parties : Mr. Asok Kumar Chakraborty, Sr. Advocate
Mr. P.R. Chakraborty, Advocate
Heard on : June 7, July 19 and August 2, 2011
Judgment on : September 6, 2011
1. These review petitions are directed against the common judgment and
order dated July 23, 2004 passed by a learned single Judge of this Court,
whereby His Lordship was pleased to dismiss three revisional applications (C.O.
Nos.1779 to 1781 of 1999) under Article 227 of the Constitution of India filed by
the petitioner. In the revisional applications, the petitioner impugned separate
but more or less identical judgments and orders dated March 12, 1999 passed by
the Additional District Judge, 2nd Court, Hooghly on Misc. Appeal Nos. 108 to
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110 of 1989, whereby the judgments and orders under appeal dated August 26,
1989 passed by the learned Munsif, 2nd Court, Arambagh on J. Misc. Case Nos.
110 to 112 of 1980 were set aside and, consequently, the applications under
Section 8, West Bengal Land Reforms Act, 1955 (hereafter the Act) filed by the
petitioner stood dismissed.
2. The short point that arose for decision before the learned Munsif was
whether an application under Section 8 of the Act at the instance of the
petitioner, a co-sharer of un-partitioned land adjoining the land transferred, was
maintainable or not. The learned Munsif recorded a finding that the "adjoining
lands possessed by the petitioner have longer common boundary than the
adjoining lands possessed by the opposite parties" and allowed the applications
based on the view "that the possession of one co-sharer will be deemed to be the
possession of other co-sharers". The learned Additional District Judge reversed
the judgments and orders under appeal relying on the decision of a learned single
Judge of this Court in Smt. Rekha Rani Maity & ors. v. Jagatpati Sashmal : 1995
WBLR (Cal) 263, wherein His Lordship held that when there is no partition, it
cannot be held that the pre-emptors are holding land adjoining the land
transferred.
3. Dr. Indrajit Mandal, learned advocate for the petitioner contended that
while dismissing the revisional applications, His Lordship did not notice the
judgment of a learned single Judge of this Court in Smt. Bula Kundu v. Sri
Nirmal Kumar Kundu and anr. : 2000 (1) CHN 505, wherein the decision in
Rekha Rani Maity (supra) was considered and it was ruled that in an application
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for pre-emption on the ground of adjoining ownership, it is not necessary that the
applicant must be the full owner of the adjoining holding; even a co-sharer of the
adjoining holding may apply for pre-emption. According to him, this decision was
directly on the issue raised by the petitioner and, therefore, the impugned
judgment and order suffers from an error apparent on the face of the record for
which it ought to be reviewed and the revisional applications reheard. The
Court's attention was also invited to the decision in Ramgati Khan v. Gobinda
Chandra Khan : 2006 (4) CHN 328, wherein another learned single Judge of this
Court held that the objection raised to the effect that the pre-emptor being a co-
owner of the contiguous plot cannot exercise his right of pre-emption cannot be
sustained in view of the decision in Bula Kundu (supra).
4. The decision of the Supreme Court in Board of Control for Cricket, India
and another v. Netaji Cricket Club and others : AIR 2005 SC 592 was also relied
on by him in support of the proposition that the words "sufficient reason" in
Order 47 Rule 1, Civil Procedure Code (hereafter the Code) is wide enough to
include a misconception of law or fact by a Court and an application for review
may be necessitated by way of invoking the doctrine 'actus curiae neminem
gravabit'.
5. He, accordingly, prayed for setting aside of the impugned judgment and
order on review and for re-hearing of the revisional applications.
6. The review petitions were opposed by Mr. Chakraborty, learned senior
advocate for the opposite parties. He contended that the grounds urged by the
petitioner in support of the prayer for review do not attract the provisions of
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Order 47 Rule 1 of the Code and, therefore, the petitions are liable to be
dismissed. According to him, no case of discovery of new or important matter or
evidence has been set up by the petitioner which, in spite of exercise of due
diligence, was not within his knowledge or could not be produced by him when
the revisional applications were dismissed by the judgment and order under
review. Additionally, it was urged that the petitions do not show the error or
mistake apparent on the face of the record with any degree of clarity. Failure of
the learned advocate representing a party to bring to the Court's notice a decision
that is relevant and material for a decision on the issue raised, he argued, is not
a ground for review under Order 47 Rule 1 and, thus, the petitioner is not
entitled to any relief based on the decision in Bula Kundu (supra). That apart, it
was submitted that the decision in Ramgati Khan (supra) was rendered after the
judgment and order under review was delivered and, therefore, the same can be
of no assistance to the petitioner having regard to the explanation in Rule 1 of
Order 47.
7. Regarding the Court's power to review its own judgment and/or order, Mr.
Chakraborty relied on the decisions in Moran Mar Basselios Catholicos and
another v. Most Rev. Mar Poulose Athanasius and ors. : AIR 1954 SC 526, Smt.
Meera Bhanja v. Smt. Nirmala Kumari Choudhury : AIR 1995 SC 455, Parsion
Devi v. Sumitri Devi : (1997) 8 SCC 715, and Tarapada Dey ors. v. Amitava Dey :
2009 (3) CHN 798. Based thereon, he submitted that this Court cannot be called
upon by the petitioner, in the guise of a review petition, to convert itself into a
Court of appeal and to re-hear the merits of the matter on the ground that if the
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revisional applications had been considered by it initially, it could have taken the
other view or even a contra view.
8. Mr. Chakraborty invited the Court's attention to the decision in State of
West Bengal and others v. Kamal Sengupta and another : (2008) 8 SCC 612,
wherein the earlier decision in Netaji Cricket Club (supra) came up for
consideration. Referring to paragraph 52 of the decision, he submitted that the
Supreme Court doubted the proposition of law laid down in the earlier decision
and ultimately ruled that the observation in paragraph 93 thereof must be
treated as confined to the fact of the case involving the controversy between the
rival cricket associations. Emphasis was laid on paragraph 22 of the decision by
him, wherein connotation of the term "mistake or error apparent" was explained.
9. Mr. Chakraborty lastly cited the decision in Union of India v. Raghubir
Singh : AIR 1989 SC 1933 for the proposition that it was not open to the learned
Judge deciding Bula Kundu (supra) to decide the correctness or otherwise of the
view expressed in Rekha Rani Maity (supra).
10. He, accordingly, urged that no review is permissible on facts and in the
circumstances of the present case on the basis of the ruling in Netaji Cricket
Club (supra), and prayed for dismissal of the review petitions.
11. There can be no two opinions that jurisdiction of the Court while hearing a
review petition is limited and a review does not lie to correct a wrong decision.
The aggrieved must in such case avail the remedy of appeal, if available. No
decision has been placed before this Court, having the effect of a binding
precedent, which lays down the law that if attention of the Court dealing with the
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matter is not drawn to a previous decision that is binding on it and a judgment
and/or order is passed in ignorance thereof, the same would constitute a ground
for review. It is humanly impossible for a judge to know all previous decisions on
the point and if a previous binding decision is not drawn to the judge's notice,
which could persuade him to follow the same, it is the party who did not cite
such previous decision favourable to him who must take the blame of not
assisting the judge effectively. A judicial decision, rendered previous to the
judgment and/or order under review, is not new material within the meaning of
Order 47 Rule 1 of the Code. Merely because the decision in Bula Kundu (supra)
was not considered while the revisional applications were dismissed is not
considered to be sufficient ground to review the judgment and order dated July
23, 2004. This Court quite agrees with the decision of the Delhi High Court in
Sanjeev Sarin and another v. Smt. Rita Wadhwa and ors. : 2002 AIHC 628
holding that Order 47 Rule 1 refers to evidence or other matters in the nature of
evidence and not the legal authority that was not brought to the notice of the
Court on the given date, and the Bench decision of the Jammu and Kashmir
High Court in National Insurance Co. v. Sultan Asim and anr. : 2005 AIHC 1616,
wherein it was held that a judgment rendered in ignorance of a binding decision
of the Court cannot be said to be an error apparent on the face of the record nor
can it be said to be discovery of new material.
12. The impugned judgment and order bears no reflection of consideration of
the amended provisions of Sections 8 and 2(6) of the Act introduced by the West
Bengal Land Reforms (Amendment) Act, 2000 (hereafter the Amendment Act),
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which were to operate retrospectively from August 7, 1969, whereby a co-sharer
of an adjoining land is entitled to seek pre-emption. However, having regard to
the ground that was urged in support of review on the merits of the impugned
judgment and order, this Court is in agreement with Mr. Chakraborty that the
petitioner has not been able to set up any case for review thereof under Section
114 of the Code read with Order 47 Rule 1 thereof.
13. In course of hearing the review petitions, however, one aspect that shocked
the Court's conscience was the absence of any reason in the impugned judgment
and order supporting dismissal of the revisional applications. It had been argued
by the learned advocate for the petitioner before His Lordship that in view of the
amended definition of the term "co-sharer of a raiyat in a plot of land" in Section
2(6) of the Act, taking effect retrospectively from August 7, 1969, the petitioner
was entitled to be treated as co-sharer of the plots of land, which had been
transferred to the opposite parties and, as such co-sharer, he could maintain the
applications under Section 8. The impugned judgment and order, running into 5
(five) pages, records the contention raised on behalf of the petitioner and those
raised on behalf of the opposite parties together with the decisions cited on their
behalf covering up to half of page 5. Thereafter, His Lordship proceeded to
observe as under:
"Learned counsel for the petitioner has urged that on a simple reading of the
definition in Section 26 [sic Section 2(6)] wherein co-sharer of a raiyat in a
plot has been defined which means a person other than the raiyat who an
(sic) undemarcated interest in the plot of land along with the raiyat. He goes
on urging that this change of word 'plot' in respect of holding used in the
aforesaid amendment which can be enforced with retrospective effect since
7.8.69 helps him a lot which I am of the view that cannot find favour with
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this Court as the definition is of no avail to the petitioner in any way and
that it cannot be simply said that the impugned order of the First Appellate
Court does not suffer from any material illegality calling for any interference.
Revision petition, accordingly, dismissed.
This order does govern in respect of the other two revision petitions."
14. Noticing absence of any reason in the impugned judgment and order,
which could perhaps be characterized as a serious mistake or grave error as one
might call it, this Court had called upon Mr. Chakraborty to advance argument
as to why in exercise of the inherent power of Court the impugned judgment and
order shall not be set aside.
15. Mr. Chakraborty referred to the decisions in Nain Singh v. Koonwarjee :
AIR 1970 SC 997, Patel Narshi Thakershi and ors. v. Pradyumansinghji
Arjunsinghji : AIR 1970 SC 1273, and Lily Thomas v. Union of India : (2000) 6
SCC 224 in support of his argument that inherent jurisdiction of the Court must
be exercised subject to the rule that if the Code does contain specific provisions
which would meet the necessities of the case, such provisions should be followed
without involving inherent jurisdiction and that a Court has no inherent power to
review its own judgment/order under Section 151 of the Code; the power of
review, if at all, has to be exercised within the narrow confines of Order 47 Rule 1
of the Code and under no other provision.
16. He also sought to sustain the impugned judgment and order by arguing
that since His Lordship was affirming the judgments and orders of the lower
appellate Court, elaborate reasons were not required to be given. Reference in
this connection was made to the decision in Girijanandini Devi and others v.
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Bijendra Narain Choudhary : AIR 1967 SC 1124, wherein it was observed as
follows:
"12. ***It is not the duty of the appellate court when it agrees with the view
of the trial court on the evidence either to restate the effect of the evidence or
to reiterate the reasons given by the trial court. Expression of general
agreement with reasons given by the court decision of which is under appeal
would ordinarily suffice."
17. The decision in K. Venkataramiah v. Seetharama Reddy : AIR 1963 SC
1526 was also relied on by him, wherein it was ruled that non-recording of any
reason by the High Court for admitting additional evidence under Order 41 Rule
27 of the Code would not vitiate such admission.
18. Before the submission of Mr. Chakraborty to the effect that even in exercise
of inherent power the impugned judgment and order cannot be reviewed
exercises this Court's consideration, it would be profitable to advert to certain
basic principles of law.
19. Scott, L.J. attempted to define the words "judicial decision" and "quasi-
judicial decision" in the decision in Cooper v. Wilson : (1937) 2 KB 309. The
relevant passage reads thus:
"A true judicial decision presupposes an existing dispute between two or
more parties, and then involves four requisites: (1) The presentation (not
necessarily orally) of their case by the parties to the dispute; (2) if the
dispute between them is a question of fact, the ascertainment of the fact
by means of evidence adduced by the parties to the dispute and often
with the assistance of argument by or on behalf of the parties on the
evidence; (3) if the dispute between them is a question of law, the
submission of legal argument by the parties, and (4) a decision which
disposes of the whole matter by a finding upon the facts in dispute and
application of the law of the land to the facts so found, including where
required a ruling upon any disputed question of law. A quasi-judicial
decision equally presupposes an existing dispute between two or more
parties and involves (1) and (2), but does not necessarily involve (3) and
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never involves (4). The place of (4) is in fact taken by administrative
action, the character of which is determined by the Minister's free choice."
20. A judicial decision rendered by a civil Court at the lowest level, not being a
Court of Small Causes, which fulfills the character of a judgment as defined in
Section 2(9) of the Code, must contain all the requisites (1) to (4) supra. This is
also the statutory mandate as ordained by Order 20 Rule 4(2) and Rule 5 of the
Code. Insofar as exercise of appellate jurisdiction is concerned, a judgment must
conform to the requirements of Order 41 Rule 31 of the Code. In exercise of
revisional jurisdiction, the High Court under Section 115 of the Code or the
District Court under Section 115A of the Code, as applicable to the State of West
Bengal, is empowered to make such order in the case as it thinks fit. The
requirement to record reasons in support of its order, it is noticed, is absent.
Does it mean that the High Court or the District Court need not record reasons
in support of its order that it makes while exercising revisional jurisdiction? The
question must be answered in the negative. The requirement to record reasons in
support of an order made on a revision petition is not excluded in the Code,
either expressly or by necessary implication, and therefore, such requirement has
to be read into the provisions of Section 115, a fortiorari, also in Section 115A
thereof. In all fairness, an order passed by the High Court or the District Court
exercising power of revision, even if it may not contain the history of the case,
every minute detail of what has been argued by advocates for the parties, and re-
appreciation and re-assessment of evidence [unless finding(s) on factual aspect(s)
returned by the inferior Court are considered to be perverse, and finding(s) on
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such factual aspect(s) require to be recorded), it must contain the decision of the
judge (meaning thereby the rational relation between the matters considered and
the conclusions reached) disposing of the whole matter including wherever
required, declaring what the law is. Howsoever brief the decision might be, a
reading thereof must reveal the reasons that prompted the judge to accept one
view in preference to the other view, and thereby decide the fate of the parties
before him. That the judge has applied the extant law to the proven facts
suggesting application of mind must be reflected. This process, if followed while
writing a judgment, would rule out subjectivity and ensure objectivity. Recording
of reasons by the Court for its decision is thus one of the fundamental principles
on which the judicial system in this country is structured.
21. Brother Sanjib Banerjee, J. in simple and clear language has formulated
the twin tests of "why" and "what" that a judicial decision invariably must meet,
the "why" connoting the 'reason' for sustaining the "what", which is the
'conclusion' [see In the matter of : Uniworth Resorts Limited, (2008) 1 CAL LT 1
(HC)].
22. The necessity to record reasons in a judicial order has been emphasised in
a catena of Supreme Court decisions. One may only refer to some of such
decisions.
23. Reason in a judicial order is considered to be its heartbeat and without the
same, the order is lifeless [see State of Orissa v. Dhaniram Luhar : (2004) 5 SCC
568].
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24. The Supreme Court in its decision in Cyril Lasrado v. Juliana Maria
Lasrado : (2004) 7 SCC 431, while examining an unreasoned order passed by the
High Court in exercise of power conferred by Article 226 of the Constitution, had
the occasion to observe that reasons introduce clarity in an order and on plainest
consideration of justice, the High Court ought to have set forth its reasons,
howsoever brief, in its order indicative of an application of its mind.
25. Any discussion on the issue of necessity to record reasons would be
incomplete without reference to a decision of recent origin in Kranti Associates
Private Limited v. Masood Ahmed Khan : (2010) 9 SCC 496, authored by Hon'ble
Asok Kumar Ganguly, J. The principles were succinctly summed up thus :
"47. Summarising the above discussion, this Court holds:
(a) In India the judicial trend has always been to record reasons, even in
administrative decisions, if such decisions affect anyone prejudicially.
(b) A quasi-judicial authority must record reasons in support of its
conclusions.
(c) Insistence on recording of reasons is meant to serve the wider principle
of justice that justice must not only be done it must also appear to be
done as well.
(d) Recording of reasons also operates as a valid restraint on any possible
arbitrary exercise of judicial and quasi-judicial or even administrative
power.
(e) Reasons reassure that discretion has been exercised by the decision-
maker on relevant grounds and by disregarding extraneous
considerations.
(f) Reasons have virtually become as indispensable a component of a
decision-making process as observing principles of natural justice by
judicial, quasi-judicial and even by administrative bodies.
(g) Reasons facilitate the process of judicial review by superior courts.
(h) The ongoing judicial trend in all countries committed to rule of law and
constitutional governance is in favour of reasoned decisions based on
relevant facts. This is virtually the lifeblood of judicial decision-making
justifying the principle that reason is the soul of justice.
(i) Judicial or even quasi-judicial opinions these days can be as different
as the judges and authorities who deliver them. All these decisions serve
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one common purpose which is to demonstrate by reason that the relevant
factors have been objectively considered. This is important for sustaining
the litigants' faith in the justice delivery system.
(j) Insistence on reason is a requirement for both judicial accountability
and transparency.
(k) If a judge or a quasi-judicial authority is not candid enough about
his/her decision-making process then it is impossible to know whether
the person deciding is faithful to the doctrine of precedent or to principles
of incrementalism.
(l) Reasons in support of decisions must be cogent, clear and succinct. A
pretence of reasons or 'rubber-stamp reasons' is not to be equated with a
valid decision-making process.
(m) It cannot be doubted that transparency is the sine qua non of restraint
on abuse of judicial powers. Transparency in decision-making not only
makes the judges and decision-makers less prone to errors but also
makes them subject to broader scrutiny. (See David Shapiro in Defence of
Judicial Candor, (1987) 100 Harvard Law Review 731-737).
(n) Since the requirement to record reasons emanates from the broad
doctrine of fairness in decision-making, the said requirement is now
virtually a component of human rights and was considered part of
Strasbourg Jurisprudence. See Ruiz Torija v. Spain, (1994) 19 EHRR 553,
at 562 para 29 and Anya v. University of Oxford, 2001 EWCA Civ 405
(CA), wherein the Court referred to Article 6 of the European Convention of
Human Rights which requires,
'adequate and intelligent reasons must be given for judicial decisions'.
(o) In all common law jurisdictions judgments play a vital role in setting
up precedents for the future. Therefore, for development of law,
requirement of giving reasons for the decision is of the essence and is
virtually a part of 'due process'."
26. The position in law is not at all different when a High Court judge exercises
power under Article 227 of the Constitution. The power of judicial
superintendence that a judge of the High Court exercises thereunder is not an all
pervasive power that can be exercised at the drop of a hat. It is within self-
imposed limitations that the power is exercised. Whether it is an order rejecting
or allowing an application, the Court must, howsoever briefly, indicate its mind
as to why it considers it unnecessary/necessary to interfere. The reason(s)
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assigned would establish the link between the mind of the judge to the
controversy in question and the decision or conclusion arrived at by him.
27. Recording of reasons would also serve one other salutary purpose. While
deciding matters that surface, the High Court ought to adopt a holistic approach
of leading by example. Unreasoned orders passed by the subordinate Courts and
Tribunals are an anathema to securing justice and when questioned in petitions
under Articles 226 or 227, are viewed by the High Court with displeasure, and at
times with suspicion. One area of concern is that despite arranging legal
education courses through the aegis of the Judicial Academies to equip the
judicial officers with all the modern techniques for discharging judicial duty
effectively and in the process to ensure better administration of justice, the
basics of delivering justice at times are forgotten. It is not an uncommon feature
for High Court judges to deliver lectures in the Judicial Academies stressing on
the need for delivering quality judgments. What ought to be borne in mind by a
judicial officer to deliver quality judgments need not be dilated here. But one of
the focal points of imparting lessons in this respect invariably is the necessity to
pass reasoned judgments/orders. There can be no greater disservice to the
people and the institution if we, as High Court judges, do not practice what we
preach. It does the judiciary no good by acting as super-lords by merely setting
forth what the arguments advanced were and accepting the arguments of one of
the litigating parties without even expending a single sentence standing for the
"why". It would set a dangerous trend if judicial officers, noticing absence of
reasons in judgments/orders passed by the High Court, feel encouraged to follow
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suit. In fact, disposal of an application for injunction or applications for addition
of party/amendment of pleadings by mechanical chant of statutorily sanctified
phrases has caught the attention of this Court many a time. It is experienced
that a good number of applications are filed challenging unreasoned orders,
resulting in addition to the already bursting docket. In the circumstances, it is
unthinkable that while writing judgments/orders, a judge of the High Court
would enjoy the liberty of writing unreasoned judgments/orders while upholding
or criticizing judgments/orders of judicial officers. The occasional aberrations, as
and when brought to the Court's notice, ought to be immediately interdicted and
remedied to promote justice.
28. The ratio of the decisions in Girijanandini Devi (supra) and K.
Venkataramiah (supra) cited by Mr. Chakraborty do not lend any assistance to
him. Insofar as the former decision is concerned, the ratio is not applicable here
because the point that was raised before His Lordship could not have been raised
before the lower appellate Court, the Act having been amended in 2000. There
was thus no question of affirming the judgment and order of the lower appellate
Court by generally concurring therewith, without considering whether the
amended provisions of the Act were at all applicable or not. A new point based on
the Amendment Act having been raised, it ought to have exercised the
consideration of His Lordship and dealt with, with the seriousness and attention
it deserved and not in the casual manner in which it was dealt, as reflected
supra. Regarding the latter decision, the Supreme Court construed "shall" in
Order 41 Rule 27 of the Code as not being mandatory. The requirement to record
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reasons in support of a judicial decision, over the years, has been recognised to
be a duty on the part of the Court and, therefore, this decision is of no help to
him.
29. At this stage, it would be worthwhile to note the recent shift regarding
requirement to record brief reasons even in appellate orders confirming orders
under challenge. One may usefully refer to the decisions in Divl. Forest Officer v.
Madhusudhan Rao : (2008) 3 SCC 469, and Chairman, Disciplinary Authority,
Rani Lakshmi Bai Kshetriya Gramin Bank v. Jagdish Sharan Varshney : (2009) 4
SCC 240. In the latter decision, it was held as follows:
"5. In our opinion, an order of affirmation need not contain as elaborate
reasons as an order of reversal, but that does not mean that the order of
affirmation need not contain any reasons whatsoever. In fact, the said
decision in State Bank of Bikaner & Jaipur v. Prabhu Dayal Grover,
(1995) 6 SCC 279, has itself stated that the appellate order should
disclose application of mind. Whether there was an application of mind or
not can only be disclosed by some reasons, at least in brief, mentioned in
the order of the appellate authority. Hence, we cannot accept the
proposition that an order of affirmation need not contain any reasons at
all. That order must contain some reasons, at least in brief, so that one
can know whether the appellate authority has applied its mind while
affirming the order of the disciplinary authority."
30. Having regard to the expanding horizons of the necessity to record reasons,
this Court is unable to accept Mr. Chakraborty's contention that an appellate
judgment/order need not even contain brief reasons, if it affirms the order under
challenge.
31. Borrowing wisdom from the decision in Uniworth (supra), it has to be held
that there is no element of "why" for the "what" in the impugned judgment and
order to stand on and to be fair to Mr. Chakraborty, he did not seek to join issue.
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32. Now the crux of the matter, i.e. whether for non-recording of reason the
impugned judgment and order deserves to be recalled in exercise of inherent
power needs to be considered.
33. What are inherent powers of a Court? The origin of the rule of inherent
powers may be traced to the maxim "quadolex aliquid alicui concedit, concedere
videtur id sine quo ipsa, ess uon potest". It means that when the law gives
anything to anyone, it gives also all those things without which the thing itself
could not exist [see Janata Dal v. H.S. Chowdhary : (1992) 4 SCC 305].
34. In Indian Bank v. Satyam Fibres (India) (P) Ltd. : (1996) 5 SCC 550, the
Supreme Court explained what inherent powers are, that are preserved by
Section 151 of the Code. Relevant passage from the decision reads thus:
"22.***Inherent powers are powers which are resident in all courts,
especially of superior jurisdiction. These powers spring not from legislation
but from the nature and the constitution of the tribunals or courts themselves
so as to enable them to maintain their dignity, secure obedience to its
process and rules, protect its officers from indignity and wrong and to punish
unseemly behaviour. This power is necessary for the orderly administration
of the court's business.
23.*** Similarly, where the court is misled by a party or the court itself
commits a mistake which prejudices a party, the court has the inherent
power to recall its order.***"
(emphasis supplied)
35. Section 151 of the Code saves the inherent power of the civil Courts to
make such orders as may be necessary for the ends of justice or to prevent abuse
of the process of Court. The power is unrestricted and undefined and, therefore,
needs to be exercised with care, caution and circumspection and not capriciously
or arbitrarily. Its exercise should only be in appropriate cases, ex debito justitiae,
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on sound principles to ensure that real and substantial justice is administered
for which alone the Courts exist.
36. That review of a judgment and/or order may be applied for and obtained
on the merits thereof if any of the conditions mentioned in Order 47 Rule 1 of the
Code is fulfilled, is not res integra. At the same time, a judgment/order which
apparently appears to be perfectly justified on the merits of the matter before the
Court, may also be reviewed not in exercise of power of review conferred by
statute but in exercise of the power of procedural review, which is inherent in
every Court of plenary jurisdiction, if it is proved to the satisfaction of the Court
that the decision suffers from a procedural impropriety striking at its root.
37. In support of the above view, one may usefully refer to the decision in
Kapra Mazdoor Ekta Union v. Birla Cotton Spg. and Wng. Mills Ltd. : (2005) 13
SCC 777. It was observed therein as follows:
"19. Applying these principles it is apparent that where a court or quasi-
judicial authority having jurisdiction to adjudicate on merit proceeds to do so,
its judgment or order can be reviewed on merit only if the court or the quasi-
judicial authority is vested with power of review by express provision or by
necessary implication. The procedural review belongs to a different category.
In such a review, the court or quasi-judicial authority having jurisdiction to
adjudicate proceeds to do so, but in doing so commits (sic ascertains whether
it has committed) a procedural illegality which goes to the root of the matter
and invalidates the proceeding itself, and consequently the order passed
therein. Cases where a decision is rendered by the court or quasi-judicial
authority without notice to the opposite party or under a mistaken
impression that the notice had been served upon the opposite party, or
where a matter is taken up for hearing and decision on a date other than the
date fixed for its hearing, are some illustrative cases in which the power of
procedural review may be invoked. In such a case the party seeking review
or recall of the order does not have to substantiate the ground that the order
passed suffers from an error apparent on the face of the record or any other
ground which may justify a review. He has to establish that the procedure
followed by the court or the quasi-judicial authority suffered from such
19
illegality that it vitiated the proceeding and invalidated the order made
therein, inasmuch as the opposite party concerned was not heard for no fault
of his, or that the matter was heard and decided on a date other than the
one fixed for hearing of the matter which he could not attend for no fault of
his. In such cases, therefore, the matter has to be reheard in accordance
with law without going into the merit of the order passed. The order passed
is liable to be recalled and reviewed not because it is found to be erroneous,
but because it was passed in a proceeding which was itself vitiated by an
error of procedure or mistake which went to the root of the matter and
invalidated the entire proceeding. In Grindlays Bank Ltd. v. Central Govt.
Industrial Tribunal, 1980 Supp SCC 420, it was held that once it is
established that the respondents were prevented from appearing at the
hearing due to sufficient cause, it followed that the matter must be reheard and decided again."
(underlining for emphasis)
38. A judicial decision that does not record any reason at all in support of the conclusion reached therein, in the considered view of this Court, is one other case which ought to fit in the illustrative cases discussed by the Supreme Court in Kapra Mozdoor Ekta Union (supra). Being bereft of reason, such decision is in breach of the principles of natural justice and, therefore, constitutes a procedural error or mistake. To assign reasons is one of the fundamentals of the justice dispensation system and any failure in this behalf has the result of denying justice to the party against whom the decision is rendered. In such case, the party losing the cause is unable to know why the arguments advanced on his behalf did not appeal to the judge to be credit-worthy. However, it is important to distinguish a judicial decision absolutely without any reason and that which contains at least some reason, the adequacy or the sufficiency whereof cannot be scrutinized in exercise of the power of procedural review. 20
39. This being the legal position, would this Court be unjustified in exercise of its inherent power to recall the impugned judgment and order to prevent injustice to a party?
40. Answer to this question is found in S. Nagaraj v. State of Karnataka : 1993 (4) Supp SCC 595, wherein the Supreme Court held that an order passed by it under mistake could be recalled to avoid injustice. Hon'ble R.M. Sahai, J. (as His Lordship then was) in weighty words expressed as follows:
"18. Justice is a virtue which transcends all barriers. Neither the rules of procedure nor technicalities of law can stand in its way. The order of the court should not be prejudicial to anyone. Rule of stare decisis is adhered for consistency but it is not as inflexible in administrative law as in public law. Even the law bends before justice. Entire concept of writ jurisdiction exercised by the higher courts is founded on equity and fairness. If the court finds that the order was passed under a mistake and it would not have exercised the jurisdiction but for the erroneous assumption which in fact did not exist and its perpetration shall result in miscarriage of justice then it cannot on any principle be precluded from rectifying the error. Mistake is accepted as valid reason to recall an order. Difference lies in the nature of mistake and scope of rectification, depending on if it is of fact or law. But the root from which the power flows is the anxiety to avoid injustice. It is either statutory or inherent. The latter is available where the mistake is of the court. In administrative law, the scope is still wider. Technicalities apart if the court is satisfied of the injustice then it is its constitutional and legal obligation to set it right by recalling its order."
(emphasis supplied)
41. The decision in A.R. Antulay v. R.S. Nayak : (1988) 2 SCC 602 is another classic example where the Supreme Court ex debito justitiae corrected a mistake committed by it earlier.
42. Hon'ble Sabyasachi Mukharji, J. (as His Lordship then was) held therein that an order of Court, be it administrative or judicial, which is given per 21 incuriam and in violation of certain constitutional limitations and in derogation of the principles of natural justice, can always be remedied by the Court ex debito justitiae. The basic fundamentals of the administration of justice are that no man should suffer because of the mistake of the Court. No man should suffer a wrong by technical procedure of irregularities. Rules or procedures are the handmaids of justice and not the mistress of justice. Ex debito justitiae, the Court must do justice to him. If a man has been wronged, so long as it lies within the human machinery of administration of justice, that wrong must be remedied. In doing so, even if there are any technicalities, the Supreme Court should not feel shackled and decline to rectify that injustice or otherwise the injustice noticed will remain forever a blot on justice.
43. Hon'ble Ranganath Misra, J. (as His Lordship then was) in a concurring judgment observed that once judicial satisfaction is reached that the direction was not open to be made and it is accepted as a mistake of the Court, it is not only appropriate but also the duty of the Court to rectify the mistake by exercising inherent powers. Mistake of the Court can be corrected by the Court itself without any fetters.
44. This Court would wish to conclude the discussion on the topic by quoting a passage from the judgment rendered by His Lordship, which is at page 688 of the report. It reads :
"To err is human, is the oft-quoted saying. Courts including the apex one are no exception. To own up the mistake when judicial satisfaction is reached does not militate against its status or authority. Perhaps it would enhance both."22
45. Inherent powers, it is said, do not confer, or constitute a source of, jurisdiction and they are to be exercised in aid of a jurisdiction that is already invested. The Courts of law discharge the judicial functions of the State. The High Court derives jurisdiction from Article 227 of the Constitution to exercise its power of superintendence over all subordinate Courts and tribunals throughout its territories. The power is not confined to administrative superintendence only but also includes the power of judicial superintendence and the Courts seek to administer justice between the litigants whenever the occasion so warrants. When it is brought to the notice of the High Court by a party that while exercising power of judicial superintendence it had dismissed its application and that he is groping in the dark to ascertain "why" the point urged by him did not find favour with it, would it be fair and proper to decline the prayer of such party on the specious ground that the provisions of Order 47 Rule 1 of the Code are not attracted although a judicial satisfaction is reached that the same suffers from a serious mistake or a grave error? Is it not the duty of the judge who delivered the judicial decision, if he is available, or his successor judge in the High Court to rectify the mistake or error committed by the former by recalling it and hearing the matter afresh for delivering a decision in the manner it is incumbent on him in law? To the mind of this Court, no amount of technical rules of procedure can be allowed to prevail over justice. On a procedural review, the mistake or error in procedure ought to be corrected not only to advance the cause of justice but also to instill confidence in the people that the Constitution that they gave unto themselves is not being subverted.
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46. This Court, accordingly, in exercise of its power of procedural review recalls the impugned judgment and order dated July 23, 2004 dismissing C.O. Nos.1779 to 1781 of 1999. The revisional applications shall be heard afresh. Put up the same for hearing in the monthly list of November, 2011.
47. In the result, R.V.W. Nos. 3101 to 3103 of 2004 stand disposed of. There shall be no order for costs.
Urgent photostat certified copy of this judgment and order, if applied, may be furnished to the applicant at an early date.
(DIPANKAR DATTA, J.) LATER : Mr. Chakraborty prays for stay of operation of this order. The prayer is considered and refused.
(DIPANKAR DATTA, J.) LATER : Mr. Gupta, learned senior advocate prays for staying of operation of this order. Considering such prayer, I find no reason to stay the operation of this order.
The prayer for staying stands refused.
(DIPANKAR DATTA, J.)