Delhi High Court
Delhi Urban House Owners Welfare ... vs Union Of India (Uoi) And Ors. on 29 January, 1998
Equivalent citations: 71(1998)DLT785, (1998)118PLR85
JUDGMENT Devinder Gupta, J.
1. The petitioners challenged the constitutional validity of the Delhi Municipal Corporation (Determination of Ratable Value) Bye-laws, 1994 and the Delhi Municipal Corporation (Property Tax Return) Bye-laws, 1994 notified through notification dated 24.10.1994 in a writ petition filed under Article 226 of the Constitution of India. The writ petition was disposed of on 18.9.1995 upholding the validity of the bye-laws except to the extent as mentioned in the judgment. Along with the said writ petition another Writ Petition No. 555/95 was also disposed of by the same judgment.
2. Feeling aggrieved, the petitioner on 16.10.1995 filed an application seeking review of the decision of a number of grounds and also sought stay of the operation of the judgment.
3. Notice in the review application was served to the opposite party and arguments were also heard. Before the review petition could be disposed of, it came to our notice that the decision of this Court dated 18.9.1995 was challenged by respondent-M.C.D. In two Special Leave Petitions No. 8799 and 8798 of 1996. Leave was granted. On 3.10.1997 the Supreme Court disposed of the said two appeals. The decision is now reported as Municipal Corporation of Delhi v. Delhi Urban House owners Welfare Association, AIR 1998 S.C. 36=69 (1997) DLT 391 (SC). The declaration on the invalidity of Explanation to Bye Law 3(1)(a) of the Ratable Value Bye-Laws and Bye-Law 8 of the Property Tax Return Bye Laws as repugnant to Section 131 of the Delhi Municipal Corporation of Act, was set aside and the same were declared to be a valid pieces of legislation. In view of the conclusions, the appeals were allowed in part. Thus in nutshell the judgment of this Court was interfered with.
4. Learned Counsel for the petitioner urged that review sought by the petitioner is on grounds other than the one which were not the grounds which were considered by the Supreme Court in the appeals preferred by the respondent-M.C.D. In the appeals M.C.D. challenged the decision of this Court on grounds different than the one on which the petitioner sought the review of the judgment. His submission has been that there could be no bar in the maintainability of the review petition when the grounds of review are different than those on which the appeals were preferred against the same decision irrespective of the fact that the Supreme Court has now in the appeals preferred by the respondent, interfered with the judgment of this Court, Review will still be competent and maintainable.
5. Having considered the submissions made by learned Counsel for the petitioner, we are of the view that in view of the well settled limitations for exercise of the power of review, which also find mention in express provisions contained in Order 47 Rule 1, C.P.C. and the observations made by the Supreme Court in its judgment Thungabhadra Industries Ltd. v. The Government of Andhra Pradesh, represented by the Deputy Commissioner of Commercial Taxes, Anantapur, , this Court will now have no jurisdiction to decide the review application after the Supreme Court has disposed of the appeals.
6. Right of review does not exist unless conferred by law expressly or by necessary implication. Rule 1 of Order 47 deals with the limits within which a review is permitted by the Code of Civil Procedure. Order 47 Rule 1, C.P.C. Is not directly applicable to proceedings under Article 226 of the Constitution of India because of the explanation to Section 141 of the Code. However, the said explanation does not affect High Courts' inherent power of review of its own orders passed under Article 226 of the Constitution, which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct gross and pulp able error committed by it. There are definitive limits recognised to the exercise of such power of review, which are to be found in Rule 1, Order 47 of the Code, which reads as under:
"(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 discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment 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.
The aforementioned provision enumerates the grounds on which the power of review may be exercised.
7. In the instant case, the point for consideration is of the maintainability of the pending application of review after the superior Court has exercised its power of appeal by making modification in the order of the Court.
8. It cannot be disputed that the petitioner was within its right in having sought review since it felt aggrieved against the decision of this Court. The petitioner had not preferred any appeal and no appeal had been preferred by the opposite party on the day when review application was instituted. Thus on the day when the review application was filed, the same was competent and maintainable. Only after the institution of the review application, the respondent-M.C.D. challenged the decision of this Court by preferring two Special Leave Petitions. Leave was granted and finally the two appeals of the respondent against the judgment of this Court were heard and disposed of on merits after affording due hearing to the petitioner, who was duly served and was duly heard. In view of these circumstances it was open for the petitioner to have urged and agitated all such grounds on which the petitioner sought review of the decision of this Court in the appeals preferred by the respondent-M.CD., after leave was granted to the respondent-M.CD. Had those points been urged and agitated, there is no manner of doubt that the same would have been duly considered and decided on merits while disposing of the appeals of the respondent by the Supreme Court.
9. Clause (2) of Rule 1 of Order 47, C.P.C. stipulates that 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. But this is subject to two exceptions, namely, where the ground of such appeal is common to the party seeking review and the appellant, or, when the party seeking review, being respondent, can present to the Appellate Court the case on which he applies for the review. This exception is in the following words:
"when, being respondent, he can present to the Appellate Court the case on which he applies for the review."
10. The aforementioned restriction would equally apply to the Court before which an application for review is pending adjudication in exercise of its inherent jurisdiction. Such a restriction has the effect of rendering the review application preferred by the petitioner incompetent and not maintainable after the decision of the appeals by the Supreme Court.
11. In Thungabhadra Industries's case (supra) the Supreme Court held:
"Order XLVII, Rule 1(1) of the Civil Procedure Code permits an application for review being filed "from a decree or order from which an appeal is allowed but from which no appeal has been preferred." in the present case, it would be seen, on the date when the application for review was filed the appellant had not filed an appeal to this Court and therefore, the terms of Order XLVII, Rule (1) did not stand in the way of the petition for review being entertained. Learned Counsel for the respondent did not contest this petition. Nor could we read the judgment of the High Court as rejecting the petition for review on that ground. The crucial date for determination whether or not the terms of Order XLVII, Rule 1(1) are satisfied is the date when the application for review was filed. If on the date no appeal has been filed it is competent for the Court hearing the petition for review to dispose of the application on the merits notwithstanding the pendency of the appeal, subject only to this, that if before the application for review is finally decided the appeal itself has been disposed of, the jurisdiction of the Court hearing the review petition would came to an end."
12. The reason that why the jurisdiction of the Court hearing the review petition would come to an end on decision of the appeal is obvious, namely, the applicability of the doctrine of merger. On final decision of appeal, particularly when the appellate order modifies or reverses the order of inferior or original Court, as a general rule the appellate judgment stands in place of the original judgment for all intents and purposes. It will not be permissible thereafter for the inferior or original Court to either modify, alter or reverse the. original order, which would stand merged in the appellate order.
13. In view of the above position that the Supreme Court on 3.10.1997 allowed the respondent's appeal against the decision of this Court and modified the order of this Court the order of this Court stands merged in the order of Supreme Court for all intents and purposes the judgment of the Supreme Court stands in place of the judgment of this Court. As such the present review application filed by the petitioner seeking review of the same judgment passed by this Court has been rendered as incompetent and this Court has now no jurisdiction to decide the same.
The review application accordingly is dismissed.