National Green Tribunal
Ashok Malik vs Ajmer Smart City Limited on 30 January, 2023
Item No. 01
BEFORE THE NATIONAL GREEN TRIBUNAL
CENTRAL ZONE BENCH, BHOPAL
(Through Video Conferencing)
Review Application No. 01/2023 (CZ)
IN
Original Application No. 04/2023 (CZ)
Ashok Malik Applicant(s)
Versus
Ajmer Smart City Ltd & Ors Respondent(s)
Date of hearing: 30.01.2023
CORAM: HON'BLE MR. JUSTICE SHEO KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. ARUN KUMAR VERMA, EXPERT MEMBER
IN CHAMBER BY CIRCULATION
ORDER
1. This is an application to review and recall the order dated 18.01.2023 passed by this Tribunal in Original Application No. 04 of 2023.
2. Section 114 read with Order 47 Rule 1 of the Code of Civil Procedure, 1908 (hereinafter called C.P.C.) prescribes the limitations for entertaining a review petition. The same are; that the party filing the application for review has discovered a new and important matter or evidence after exercise of due diligence which was not within its knowledge or could not be produced by it 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.' 1 The aforesaid limitations are prescribed in a crystal clear language and before a party submits that it had discovered a new and important matter or evidence which could not be produced at the earlier stage, the condition precedent for entertaining the review would be to record the finding as to whether at the initial stage, the party has acted with due diligence. "Due" means just and proper in view of the facts and circumstances of the case (vide A.K. Gopalan Vs. State of Madras, AIR 1950 SC 27).
3. Some mistake or error, if made ground for review, it must be apparent on the face of record and if a party files an application on the ground of "some other sufficient reason" it has to satisfy that the said sufficient reason is analogous to the other conditions mentioned in the said rule i.e. discovery of new and important matter or evidence which it could not discover with due diligence or it was not within his knowledge and, thus, could not produce at the initial stage. Apparent error on the face of record has been explained to include failure to apply the law of limitation to the facts found by the Court or failure to consider a particular provision of a statute or a part thereof or a statutory provision has been applied though it was not in operation. Review is permissible if there is an error of procedure apparent on the face of the record e.g. the judgment is delivered without notice to the parties, or judgment does not effectively deal with or determine any important issue in the case though argued by the parties. There may be merely a smoke-line demarcating an error simpliciter from the error apparent on the face of record. But there cannot be a ground for entertaining the review in the former case.
4. The expression any other sufficient reason' contained in Order 47 Rule 1 Code of Civil Procedure means "sufficient reason" which is analogous to those specified immediately to it in the provision of 2 Order 47 Rule 1 CPC. In Chhajju Ram Vs. Neki & Ors, AIR 1922 PC 112, it was held by the Privy Council that anology must be discovered between two grounds specified therein namely; (i) discovery of new and important matter or evidence; and (ii) error apparent on the face of record, before entertaining the review on any other sufficient ground. The same view has been reiterated in Debi Prasad & Ors Vs. Khelawan & Ors, AIR 1957 All. 67; and Mohammad Hasan Khan Vs. Ahmad Hafis Ahmad Ali Khan & Anr., AIR 1957 Nag. 97.
5. In S. Nagraj & Ors. Vs. State of Karnataka & Anr., 1993 Supp (4) SCC 595, the Hon'ble Apex Court explained the scope of review observing as under:-
"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 ... ... The expression, for any other sufficient reason' in the clause has been given an expanded meaning and a decree or order passed under mis-apprehension of true state of circumstances has been held to be sufficient ground to exercise the power."
The Court further held that the purpose of review is rectification of an order which stems from the fundamental principle that the justice is above all and it is exercised only to correct the error which has occurred by some accident without any blame. While deciding the said case the Hon'ble Supreme Court placed reliance upon a large number of judgments including in Raja Prithwi Chand Lal Choudhury Vs. Sukhraj Rai & Ors., AIR 1941 FC 1; and Rajunder Narain Rae Vs. Bijai Govind Singh (1836) 1 MOO PC 117. The same view has been reiterated by the Hon'ble Apex Court in Oriental Insurance Co. Ltd. & Anr. Vs. Gokulprasad Maniklal Agarwal & Anr. (1999) 7 SCC 578.
3
6. A Full Bench of the Himachal Pradesh High Court, in D. Nalagarh Dehati Co-operative Transport Society Ltd., Nalagarh Vs. Beli Ram AIR 1981 HP 1, considered the scope of review and held that not considering an existing judgment of the Hon'ble Supreme Court may be a ground of review and for the same it placed reliance upon the judgments of the Privy Council in Rajah Kotagiri Venkata Subbamma Rao Vs. Rajah Vellanki Venkatrama Rao, (1900) 27 IA 197 (PC), wherein it was held that the purpose of review, inter alia, is to correct an apparent error which should not have been there when the judgment was given. The Court also placed reliance upon the judgment of the Federal Court in Sir Hari Sankar Pal & Anr. Vs. Anath Nath Mitter & Ors., 1949 FC 106 wherein it was held as under:-
".....the error could not be one apparent on the face of record or even analogous to it. When, however, the Court disposes of a case without adverting to or applying its mind to a provision of law which gives it jurisdiction to act in a particular way, that may amount to an error analogous to one apparent on the face of record sufficient to bring the case within the purview of O.47 R.1, Civil Procedure Code."
In Thadikulangara Pylee's Son Pathrose Vs. Ayyazhiveettil Lakshmi Amma's son Kuttan & Ors., AIR 1969 Ker 186, the Kerala High Court considered a review application which was filed on the ground of subsequent judgment of the Court and dismissed the same observing as under:-
"If it is borne in mind that a judicial decision only declares and does not make or change the law, although it might correct previous erroneous views of the law, a review on the basis of subsequent binding authority would not be a review of a decree which, when it was made, was rightly made, on the ground of the happening of a subsequent event."
While deciding the said case, the Court placed reliance upon the judgments of the Privy Council in Rajah Kotagiri Venkata Subbamma (supra); Chhajju Ram (supra); Bisheshwar Pratap Sahi & Anr. Vs. Parath Nath & Anr, AIR 1934 PC 213; and on judgments of 4 the Hon‟ble Supreme Court in M/s. A.C. Estates Vs. M/s. Serajuddin and Co. & Anr., AIR 1966 SC 935; and Moran Mar Basselios Catholicos & Anr. Vs. Most Rev. Mar Poulose Athanasius & Ors., AIR 1954 SC 526.
7. In Sow. Chandra Kanta & Anr. Vs. Sheik Habib, AIR 1975 SC 1500, the Hon'ble Apex Court dismissed a review application observing as under:-
"...........thus, making it that a review proceeding virtually amounts to a rehearing. May be ........... a review thereof must be subject to the rules of the game and cannot be lightly entertained. A review of a judgment is a serious subject and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave of error is crept in earlier by judicial fallibility."
Similar view has been reiterated by the Hon‟ble Supreme Court in Sajjan Singh & Ors Vs. The State of Rajasthan & Ors, AIR 1965 SC 845; Girdhari Lal Gupta Vs. D.N. Mehta & Anr, AIR 1971 SC 2162; M/s. Northern India Cateerers‟ (India) Ltd. Vs. Lt. Governor of Delhi, AIR 1980 SC 674; Aribam Tuleshwar Sharma Vs. Aribam Pishak Sharma & ors., AIR 1979 SC 1047; and Green View Tea & Industries Vs. Collector, Golaghat & Anr (2002) 1 SCC 109.
8. Similarly, in Devaraju Pillai Vs. Sellayya Pillai, AIR 1987 SC 1160, the Hon‟ble Apex Court held that if a party is aggrieved of a judgment by a Court, the proper remedy for such party is to file an appeal against that judgment. A remedy by way of an application for review is entirely misconceived and if a Court entertained the application for review then it has totally exceeded its jurisdiction in allowing the review merely because it takes a different view in construction of the document.
In Delhi Administration Vs. Gurdip Singh Uban & Ors., AIR 2000 SC 3737, the Hon‟ble Apex Court deprecated the practice of filing review 5 application observing that review, by no means, is an appeal in disguise and it cannot be entertained even if application has been filed for clarification, modification or review of the judgment and order finally passed for the reason that a party cannot be permitted to circumvent or bye-pass the procedure prescribed for hearing a review application. The Court also rejected the argument that review application should be entertained to do justice in the case, observing as under:-
"The words „justice‟ and „injustice‟, in our view, are sometimes loosely used and have different meanings to different persons, particularly to those arrayed on opposite sides.... Justice Cardozo said, 'The Web is tangled and obscure, shot through with a multitude of shades and colours, the skeins irregular and broken. Many hues that seems to be simple, are found, when analysed, to be complex and uncertain blend. Justice itself, which we are wont to appeal to as a test as well as an ideal, may mean different things to different minds and at different times. Attempts to objectify its standards or even to describe them, have never wholly succeeded."
9. In M/s. Thungabhadra Industries Ltd. Vs. The Government of Andhra Pradesh represented by the Deputy Commissioner of Commercial Taxes, Anantapur, AIR 1964 SC 1372, the Hon‟ble Apex Court held as under:-
"A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error. We do not consider that this furnishes a suitable occasion for dealing with this difference exhaustively or in any great detail, but it would suffice for us to say that where without any elaborate argument one could point to the error and say here is a substantial point of law which stares one in the face, and there could reasonably be no two opinions entertained about it, a clear case of error apparent on the face of the record would be made out."
In Union of India & Ors. Vs. Mohd. Nayyar Khalil & Ors., (2000) 9 SCC 252, the Hon'ble Apex Court rejected the review application which was filed on the ground that the High Court had decided the case placing reliance upon the decision the Hon‟ble Supreme Court, 6 the correctness of which had been doubted and the matter had been referred to the Large Bench of the Supreme Court. Subsequently, the Larger Bench had taken a contrary view. The review petition was dismissed on the grounds, inter alia, that the situation had not been pointed out by the counsel to the Bench when the matter was initially heard.
10. In M/s. Thungabhadra Industries Ltd. Vs. The Government of Andhra Pradesh represented by the Deputy Commissioner of Commercial Taxes, Anantapur, AIR 1964 SC 1372, the Hon‟ble Apex Court held as under:-
"A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error. We do not consider that this furnishes a suitable occasion for dealing with this difference exhaustively or in any great detail, but it would suffice for us to say that where without any elaborate argument one could point to the error and say here is a substantial point of law which stares one in the face, and there could reasonably be no two opinions entertained about it, a clear case of error apparent on the face of the record would be made out."
In Union of India & Ors. Vs. Mohd. Nayyar Khalil & Ors., (2000) 9 SCC 252, the Hon'ble Apex Court rejected the review application which was filed on the ground that the High Court had decided the case placing reliance upon the decision the Hon‟ble Supreme Court, the correctness of which had been doubted and the matter had been referred to the Large Bench of the Supreme Court. Subsequently, the Larger Bench had taken a contrary view. The review petition was dismissed on the grounds, inter alia, that the situation had not been pointed out by the counsel to the Bench when the matter was initially heard.
11. In Subhash Vs. State of Maharashtra & Anr., AIR 2002 SC 2537, the Hon'ble Apex Court emphasised that Court should not be misguided 7 and should not lightly entertain the review application unless there are circumstances falling within the prescribed limits for that as the Courts and Tribunal should not proceed to re-examine the matter as if it was an original application before it for the reason that it cannot be a scope of review.
The first and foremost requirement of entertaining a review application is that the order, review of which is sought (a) suffers from any error apparent on the face of the record, and (b) permitting the order to stand will lead to failure to justice. (Vide Rajendra Kumar & Ors. Vs. Rambhai & Ors., AIR 2003 SC 2095; Green View Tea and Industries Vs. Collector, Golaghat, Assam & Anr., (2004) 4 SCC 122; and Des Raj & Ors. Vs. Union of India & Anr., (2004) 7 SCC 753).
In Zahira Habibullah Sheikh Vs. State of Gujarat, (2004) 5 SCC 353, the Apex Court referred to its earlier judgments in P.N. Eswara Iyer etc. Vs. Registrar Supreme Court of India, (1980) 4 SCC 680; Suthendraraja Vs. State, (1999) 9 SCC 323; Ramdeo Chauhan Vs. State of Assam, AIR 2001 SC 2231; and Devender Pal Singh Vs. State of NCT of Delhi, AIR 2003 SC 3365; and observed that review applications "are not to be filed for the pleasure of the parties or even as a device for ventilating remorselessness, but ought to be resorted to with a great sense of responsibility as well".
12. A Division Bench of the Calcutta High Court, in re: Mahamaya Banerjee, AIR 1989 Cal. 106, held that a review under O. 47 R. 1 of the Code is permissible if there had been misconception of fact and/ or law by the counsel, as it will fall within the ambit of expression "sufficient reason" in O. 47 R. 1 of the Code. The Calcutta High Court proceeded with the presumption that in order to do justice, which has been denied to a party owing to patently wrong step taken 8 by its counsel, the Court can exercise its inherent power to come to its rescue and to do justice. With all due respect, the said judgment does not lay down the correct law for the reason that it is settled legal proposition that inherent powers cannot be used by the Court where a Statute provides for a specific remedy.
13. Undoubtedly, inherent powers conferred upon the Court either under Section 151 of the Code or any other analogous provision, can be exercised by the Court to do justice or to further the cause of justice. (Vide Manohar Lal Chopra Vs. Rai Bahadur Rao Seth Hirala, AIR 1962 SC 527; Union of India Vs. Ram Charan, AIR 1964 SC 215; and Vikas Aggarwal Vs. Anubha, (2002) 4 SCC 468). However, inherent powers cannot be used by a Court where Statute itself provides for a remedy as held by the Hon'ble Supreme Court in Manohal Lal Chopra (supra); Arjun Singh Vs. Mohindra Kumar & Ors, AIR 1964 SC 993; M/s. Ramchandra & Sons Sugar Mills Pvt. Ltd., Barabanki (U.P.) Vs. Kanhayalal Bhargava & Ors., AIR 1966 SC 1899; Nainsingh Vs. Koonwarjee & Ors., AIR 1970 SC 997; State of West Bengal Vs. Karan Singh Vinayak & ors., (2002) 4 SCC 188). In Bhagwati Singh Vs. Deputy Director of Consolidation & Anr., AIR 1977 All. 163, the Allahabad High Court rejected the review application filed on a ground which had not been argued earlier because the counsel, at initial stage, had committed mistake in not relying on and arguing those points, observing as under:-
"It is not possible to review a judgment only to give the petitioner a fresh inning. It is not for the litigant to judge of counsel's wisdom after the case has been decided. It is for the counsel to argue the case in the manner he thinks t should be argued. Once the case has been finally argued on merit and decided on merit, no application for review lies on the ground that the case should have been differently argued."
The Court also considered the judgment of the Federal Court in Mt. Jamna Kuer Vs. Lal Bahadur & Ors., AIR 1950 FC 131, wherein 9 an observation has been made that review is permissible if mistake has been committed by a counsel. The Court did not follow the said judgment, observing that it was a case in which a mistake had crept in the judgment of the High Court owing to an over-sight. Therefore, it was a case wherein review was maintainable on other grounds also and the ratio of that judgment is certainly not that review lies if a counsel commits mistake.
14. More so, the expression "discovery of new and important matter of evidence" contained in the provisions of O. 47 R. 1 CPC means, discovery of an evidence or any material which may be adduced in evidence. It cannot take it in its ambit an argument which could have been advanced by the counsel.
To sum up, the substance of the said judgments is that the entire concept of writ jurisdiction is founded on equity and fairness and if the Court has committed a mistake, it should be removed entertaining a review application so that the result may not lead to miscarriage of justice, as rectification of an order stems from the fundamental principles that justice is above all. Provisions of Order XLVII Rule 1, C.P.C. permits the review even on the mistake of fact or even on ignorance of material fact. The review jurisdiction should be exercised to prevent miscarriage of justice or to correct grave and palpable errors committed by the Court. The power of review inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. (Vide Shivdeo Singh & Ors. Vs. State of Punjab & Ors., AIR 1963 SC 1909; Aribam Tuleshwar Sharma Vs. aribam Pishak Sharma & Ors., AIR 1979 SC 1047; Union Carbide Corporation Vs. Union of India & Ors., AIR 1992 SC 248; S. Nagaraj & Ors. (Supra); Parision Devi & Ors Vs. Sumitri Devi & Ors., (1997) 8 SCC 715; Surjit Singh & Ors. 10 Vs. Union of India & Ors., (1997) 10 SCC 592; Revenue Divisional Officers & Ors Vs. A. Aruna & Ors., (1998) 6 SCC 494; & Rajendra Kumar & Ors. Vs. Rambhal & Ors., AIR 2003 SC 2095).
We do not dispute the legal propositions settled by the Hon'ble Supreme Court in the aforesaid judgments and that is the ratio of the judgments, referred to by us over and above. The power of review is to be exercised within the definitive limits. More so, a person who seeks equity must do equity and he should approach the Court with clean hands, clean mind and with clean objective. The perception of justice varies from person to person, and a litigant who succeeds in Court, claims that justice has been done with him but the litigant who looses, though may not have a case at all, raises grievance that justice has not been done with him.
15. In view of the above discussion, the law of review can be summarized that it lies only on the grounds mentioned in O. 47 R. 1CPC. The party must satisfy the Court that the matter or evidence discovered by it at a subsequent stage could not be discovered or produced at the initial stage though it had acted with due diligence. A party filing a review application on the ground of any other "sufficient reason" must satisfy that the said reason is analogous to the conditions mentioned in O. 47 R. 1 CPC. Under the garb of review, a party cannot be permitted to re-open the case and to gain a full-fledged inning for making submissions, nor review lies merely on the ground that it may be possible for the Court to take a view contrary to what had been taken earlier. Even the judgment given subsequent to the decision in a case can be no ground for entertaining the review. Review lies only when there is error apparent on the face of the record and that fallibility is by the over-sight of the Court. If a counsel has argued a case to his satisfaction and he had 11 not raised the particular point for any reason whatsoever, it cannot be a ground of review for the reason that he was the master of his case and might not have considered it proper to press the same or could have thought that arguing that point would not serve any purpose. If a case has been decided after full consideration of arguments made by a counsel, he cannot be permitted, even under the garb of doing justice or substantial justice, to engage the court again to decide the controversy already decided. If a party is aggrieved of a judgment, it must approach the Higher Court but entertaining a review to re-consider the case would amount to exceeding its jurisdiction, conferred under the limited jurisdiction for the purpose of review. Justice, as explained above, connotes different meaning to different persons in different contexts, therefore, courts cannot be persuaded to entertain a review application to do justice unless it lies only on the grounds mentioned in the statutory provisions.
16. Hon'ble the Supreme Court of India in Budhia Swain and Others vs. Gopinath Deb Others (1999) 4 SCC 394 has held that the recall of order only passful when it was obtained by misleading the court. The relevant paras are quoted below :
"6. What is a power to recall? Inherent power to recall its own order vesting in tribunals or courts was noticed in Indian Bank Vs. M/s Satyam Fibres India Pvt. Ltd. 1996 (5) SCC 550. Vide para 23, this Court has held that the courts have inherent power to recall and set aside an order
(i) obtained by fraud practised upon the Court,
(ii)when the Court is misled by a party, or
(iii) when the Court itself commits a mistake which prejudices a party.
In A.R. Antulay Vs. R.S. Nayak & Anr. AIR 1988 SC 1531 (vide para 130), this Court has noticed motions to set aside judgments being permitted where
(i) a judgment was rendered in ignorance of the fact that a necessary party had not been served at all and was shown 12 as served or in ignorance of the fact that a necessary party had died and the estate was not represented,
(vi)a judgment was obtained by fraud, () a party has had no notice and a decree was made against him and such party approaches the Court for setting aside the decision ex debito justitiae on proof of the fact that there was no service.
8. In our opinion a tribunal or a court may recall an order earlier made by it if
(i) the proceedings culminating into an order suffer from the inherent lack of jurisdiction and such lack of jurisdiction is patent, there exists fraud or collusion in obtaining the judgment,
(i) there has been a mistake of the court prejudicing a party or
(ii) a judgment was rendered in ignorance of the fact that a necessary party had not been served at all or had died and the estate was not represented.
The power to recall a judgment will not be exercised when the ground for re-opening the proceedings or vacating the judgment was available to be pleaded in the original action but was not done or where a proper remedy in some other proceeding such as by way of appeal or revision was available but was not availed. The right to seek vacation of a judgment may be lost by waiver, estoppel or acquiescence.
9. A distinction has to be drawn between lack of jurisdiction and a mere error in exercise of jurisdiction. The former strikes at the very root of the exercise and want of jurisdiction may vitiate the proceedings rendering them and the orders passed therein a nullity. A mere error in exercise of jurisdiction does not vitiate the legality and validity of the proceedings and the order passed thereon unless set aside in the manner known to law by laying a challenge subject to the law of limitation. In Hira Lal Patni Vs. Sri Kali Nath AIR 1962 SC 199, it was held :-
"The validity of a decree can be challenged in execution proceedings only on the ground that the court which passed the decree was lacking in inherent jurisdiction in the sense that it could not have seisin of the case because the subject matter was wholly foreign to its jurisdiction or that the defendant was dead at the time the suit had been instituted or decree passed, or some such other ground which could have the effect of rendering the court entirely lacking in jurisdiction in respect of the subject matter of the suit or over the parties to it."
17. Furthermore, the Court must be held to have the requisite power even under Section 151 of Code of Civil Procedure to issue such 13 direction either suo-motu or otherwise which, according to him, would lead to the truth."
18. In our opinion a Tribunal or a Court may recall an order earlier made by it if:
(i) the proceedings culminating into an order suffer from the inherent lack of jurisdiction and such lack of jurisdiction is patent,
(ii) there exists fraud or collusion in obtaining the judgment,
(iii) there has been a mistake of the court prejudicing a party or
(iv) a judgment was rendered in ignorance of the fact that a necessary party had not been served at all or had died and the estate was not represented.
The power to recall a judgment will not be exercised when the ground for re-opening the proceedings or vacating the judgment was available to be pleaded in the original action but was not done or where a proper remedy in some other proceeding such as by way of appeal or revision was available but was not availed. The right to seek vacation of a judgment may be lost by waiver, estoppel or acquiescence.
19. The matter of applicability of Review Application has again been discussed by the High Court of Judicature at Bombay in Original Civil Jurisdiction in Review Petition (L) NO. 5868 OF 2021 reportable in 1-RPCDL15868-2021 decided on 04.08.2021 relevant paras are quoted below :
"4. In 1914, in Hession v Jones1, Bankes J held that no court has the power to review an order deliberately made after argument and to entertain a fresh argument upon it with a view to ultimately confirming or reversing it. The decision in Hession -- a case about a contract for sale of eggs -- is oddly prescient to the facts of this case, as the extract that follows shows.
BANKES J. This is an application on behalf of the plaintiff, the respondent on an appeal to this Court, to restore the appeal to the list. Such an 1 (1914) 2 KB 421. Also cited with approval in Harbhajan Singh, supra.14
application may be made either (1.) to restore a case which has merely been struck out and has never been heard and decided because the appellant did not attend; or (2.) to restore a case in which the appellant has appeared and argued his appeal in the absence of the respondent and the Court has heard the appeal and come to a decision. In the first case the application is to restore an appeal which has not been heard; in the second case the application is to set aside a decision after a hearing which in the respondent's view is not satisfactory because he was not present. This is an application of the second class, to set aside an order of this Court made by Ridley J. and myself after hearing. The appellant was present and produced a copy of the county court judge's notes and was ready to proceed with his appeal. The respondent was not represented. The appellant was the defendant in the county court. An action had been brought against him for the price of certain cases of eggs ordered by him for delivery at a named station. The plaintiff delivered a larger quantity than that ordered. The defendant had refused to take delivery on the grounds (1.) that there was unreasonable delay in forwarding and (2.) that the eggs were not in proper condition. When he was sued in the county court he took the further point under s. 30, sub- s. 2, of the Sale of Goods Act, 1893, that the plaintiff could not succeed because he had tendered a different quantity from that ordered. The defendant claimed the right to reject on that ground also. The point was taken before the county court judge. The plaintiff contended that the defendant could not rely upon it, because he had not given it as his reason when he first rejected the goods. The county court judge decided the point in favour of the plaintiff. In the opinion of Ridley J. and myself he was wrong in so deciding. Before deciding the appeal we considered whether there was any evidence that the defendant had waived or abandoned or in any way estopped himself from relying on this defence, and came to the conclusion that he had not done so. Accordingly we made an order allowing the appeal; we set aside the judgment of the county court, and ordered judgment to be entered for the defendant in that Court. That order was duly drawn up by the officer of this Court; a 15 copy of the order was obtained by the solicitor for the appellant, the defendant below, and he was thereupon in a position to have the record in the county court altered by striking out the judgment for the plaintiff and entering judgment for the defendant. I do not know whether that was done, but there is no doubt that the order of this Court was drawn up and perfected before any step was taken to set it aside. It is clear therefore that this is an application to review an order deliberately made after argument and to entertain a fresh argument upon it with a view to ultimately confirming or reversing it. Has the Court jurisdiction to do this? I may say at once that if we have I should not exercise it in the present case, because any application of this sort must be supported by an affidavit of merits. I have read the affidavit in this application and can find nothing which would lead me to alter the opinion I formed on the hearing of the appeal. But it is necessary to consider the jurisdiction of the Court. The application is supported by an affidavit in which the solicitor for the plaintiff says that by an unfortunate mistake he did not instruct any one to appear for the respondent on the appeal. ... Our jurisdiction therefore is in part a statutory jurisdiction regulated by the Rules of the Supreme Court, 1883, and partly an inherent jurisdiction which we possess as judges of the High Court. The question is whether either by the rules or by reason of our inherent jurisdiction we have the power to reinstate this appeal. Then as to the inherent jurisdiction of the Court. Before the Judicature Acts the Courts of common law had no jurisdiction whatever to set aside an order which had been made. The Court of Chancery did exercise a certain limited power in this direction. All Courts would have power to make a necessary correction if the order as drawn up did not express the intention of the Court; the Court of Chancery, however, went somewhat further than that, and would in a proper case recall any decree or order before it was passed and entered; but after it had been drawn up and perfected no Court or judge had any power to interfere with it. That is clear from the judgment of Thesiger L.J. in the case of In re St. Nazaire Co [(1879) 12 Ch D 88].
(Emphasis added)
6. A power of review is conferred on our civil courts by Section 114 and Order 47 of the Code of Civil Procedure, 1908 ("CPC"). The relevant part of those provisions say:
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114. Review.--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
(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.
Order 47 REVIEW
1. Application for review of judgment.--(1) Any person considering himself aggrieved--
(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 of 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 to the Court which passed the decree or made the order.
(2) A party who is not appealing from a decree or order may 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. 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.] 17
2. [deleted]
3. ...
4. Application where rejected.--(1) Where it appear to the Court that there is not sufficient ground for a review, it shall reject the application.
(2) Application where granted.--Where the Court is of opinion that the application for review should be granted, it shall grant the same:
Provided that--
(a) no such application shall be granted without previous notice to the opposite party, to enable him to appear and be heard in support of the decree or order, a review of which is applied for; and
(b) no such application shall be granted on the ground of discovery of new matter or evidence which the applicant alleges was not within his knowledge, or could not be adduced by him when the decree or order was passed or made, without strict proof of such allegation.
5. ...
6. ...
7. Order of rejection not appealable. Objections to order granting application.--(1) An order of the Court rejecting the application shall not be appealable; but an order granting an application may be objected to at once by an appeal from the order granting the application or in an appeal from the decree or order finally passed or made in the suit.
(2) ...
(3) ...
8. ...
9. ...
20. Counsel's failure to argue written submissions is not a ground of review or, I dare say, even appeal. It is no ground to assail any order of any judge of any court. If the written submissions were to be relied on, that ought to have been done during arguments, or, at any rate, while judgment was being dictated in open court or at best shortly after the judgment or order was uploaded. These never-argued written submissions cannot be taken in hindsight."
27. A very similar case came up before the Hon'ble Mr Justice SC 18 Gupte in Mohinder Rijhwani & Ors v Hiranandani Construction Pvt Ltd.2 Several months after he delivered a reasoned judgment, an application for review was made before him suggesting that during the course of hearing he indicated his mind in a certain way and that counsel had according trimmed and tailored arguments and not pressed the point or not made it fully. Gupte J said:
12. In Moran Mar Basselios Catholicos (supra), [Moran Mar Basselios Catholicos v Most Rev. Mar Poulose Athanasius ((1955) 1 SCR 520 : AIR 1954 SC
526)] the controversy concerned a statement made by the judges of the Full Bench of the High Court of Travancore (per majority of two judges) that the defendants' advocate had conceded that the plaintiffs had not left the Church and they were as good members of the Church as anybody else. It was the case of the defendants (the review petitioners) that this statement was said to be inaccurate, incomplete and misleading. The argument before the Supreme Court was that the majority decision proceeded on a misconception as to the concession said to have been made by the defendants' advocate. This misconception was sought to be proved through affidavit and other documentary evidence. That was objected to by the Attorney General. The learned Attorney General's argument was that the affidavit and document could not be said to be part of the "record" within the meaning of Order 47 Rule 1. The Supreme Court did not countenance the objection. According to the court, there was no reason to construe the word "record" in any restricted sense. The court observed that when the error complained of was that the court assumed that a concession was made when none had in fact been made or that the court misconceived the terms of that concession or the scope or extent of it, it would not generally appear on record but would have to be brought before the court by way of an affidavit and this could only be done by way of review. Once again, these facts are clearly distinguishable. In our case, the court did not proceed on any concession made by Counsel;
the order under review mentions none. If it was Counsel, who was under a misconception as to the position of the court and therefore, chose not to argue a point, that by itself is no ground for review 2 2019 SCC OnLine Bom 1827 : (2019) 6 Bom CR 837.
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and cannot be brought in by way of an affidavit. In any event, the affidavit in support of review petition does not refer to any such misconception, as noted above. As for what transpired in court, there is, as noticed above, a serious contest between the parties and there is no question of taking a view one way or the other based on a unilateral statement of the review petitioners.
14. The Review Petitioners' case here is neither supported by law or authority of court. If anything, it would set a bizarre precedent, if accepted, that it is open to seek review of a judgment or order, if the court had indicated its mind one way in court whilst reserving the judgment and the judgment came the other way or that Counsel appearing before the court was under an impression that the case would be decided one way and in reality, it was decided otherwise."
28. Even if that decision can fairly be set to turn on the facts of this case, the general principle that it propounds is not only salutary but is essential. If this practice is to be encouraged -- that a party faced with an adverse order first files an appeal on a ground never taken or argued before the court of first instance -- then that injects an impermissible level of uncertainty into the whole decision-making process. A Review Petition that follows a disposal of that appeal with liberty to the appellants to file a Review Petition, again on grounds never taken, argued or even pleaded only aggravates the matter."
20. Accordingly, we are of the view that this Review Petition is misconceived and also deliberately mischieveious and vexatious, we do not think it proper to interfere in the order impugned. The Review Application No. 01/2023(CZ) is devoid of any merit and deserves to be dismissed and accordingly, dismissed.
Sheo Kumar Singh, JM Arun Kumar Verma, EM 30th January, 2023 Review Application No.01/2023 (CZ) PU 20