Meghalaya High Court
Shri. Ramesh Kumar Bawri vs Shri. Wally Marbaniang And Ors on 12 June, 2013
Author: T Nandakumar Singh
Bench: T Nandakumar Singh
THE HIGH COURT OF MEGHALAYA
AT SHILLONG.
REVIEW PETITION NO.(SH) 4/2012
IN CR(P) NO. (SH)11/2012
Shri. Ramesh Kumar Bawri,
S/o Late Jagannath Bawri,
R/o Dhankheti,
Shillong-793001. :::: Review Petitioner/Revision Petitioner/Plaintiff
-Vs-
1. Shri. Wally Marbaniang,
R/o Umbir,
Raid Mawbuh,
Ri Bhoi District,
Meghalaya.
2. Syiem Raid,
Raid Mawbuh,
Umroi,
Ri Bhoi District,
Meghalaya. :::: Respondents/Opp.Parties
3. Syiem of Mylliem, Mylliem Syiemship, Shillong, Meghalaya.
4. Rangbah Shnong, Umbir Village Dorbar, Umbir, Ri Bhoi District, Meghalaya.
5. Shri. B.K. Bawri, Jindal Towers, Block 'A', 3rd Floor, 21/1A/3 Barga Road, Kolkatta-17. :::: Pro Forma Respondents/Pro Forma Opp.Parties/Defendants.
BEFORE THE HON'BLE MR JUSTICE T NANDAKUMAR SINGH For the Review Petitioner/Revision Petitioner/Plaintiff: Mr.S Jindal, Adv For the Respondents/Opp.Parties : Mr. HS Thangkhiew, Sr.Adv Mr.N Mozika, Adv, For the Pro Forma Respondents/Pro Forma Opp.Parties/Defendants : Mr.KS Kynjing, Sr. Adv Mr.H Kharmih, Adv Date of hearing : 04.06.2013 Date of Judgment & Order : 12.06.2013 REVIEW PETITION NO.(SH) 4/2012 Page 1 of 14 IN CR(P) NO. (SH)11/2012 By this review petition, the review petitioner/revision petitioner/plaintiff is praying for reviewing the judgment and order dated 22.06.2012 passed by Hon'ble Dr.(Mrs) Justice Indira Shah for dismissing the revision petition being No.CR(P)NO.(SH)11/2012 and thereby allowing the revision petition by setting aside the order of the trial court i.e. Order dated 02.06.2011 passed by the Assistant to the Deputy Commissioner, Ri Bhoi District, Nongpoh for rejecting the application for temporary injunction.
2. Heard Mr. S Jindal, learned counsel appearing for the review petitioner/revision petitioner/Plaintiff and Mr. HS Thangkhiew, learned senior counsel assisted by Mr. N Mozika, learned counsel appearing for the respondent No.1. Also heard Mr. KS Kynjing, learned senior counsel assisted by Mr. H Kharmih, learned counsel appearing for the proforma respondent No.5.
3. Only the fact sufficient for deciding the present review petition is briefly noted. The review petitioner/revision petitioner/Plaintiff filed the T.S.No.7(T)2007 in the court of Assistant to Deputy Commissioner at Nongpoh against the defendants/respondents No.1 & 2 and Proforma defendants/respondents No.3 & 4 for permanent injunction and consequential relief. The review petitioner/revision petitioner/Plaintiff filed an application in the said title suit being Misc. Case No.9(T)2007, for granting temporary injunction against the defendants i.e. the present respondents No.1 & 2 and the proforma respondents No.3 & 4. The learned trial court passed the order dated 02.06.2011 in Misc. Case No.9(T)2007, rejecting the prayer for grant of temporary injunction.
4. The Rules for the Administration of Justice and Police in the Khasi & Jaintia Hills, 1937, extend to the whole of United Khasi & Jaintia Hills District including the areas which were known as Khasi State before commencement of REVIEW PETITION NO.(SH) 4/2012 Page 2 of 14 IN CR(P) NO. (SH)11/2012 the Constitution of India. It is the pleaded case of the parties that the suit land (suit property of T.S. No.7(T)/2007) is situated within the area where the said Rules i.e. the Rules for the Administration of Justice and Police in the Khasi & Jaintia Hills, 1937 is extended. Rule 37 of the said Rules, 1937 provides that the High Court and the Court of the Deputy Commissioner or the Additional Deputy Commissioner and his Assistants shall be guided by the spirit and not bound by the letters of the Code of Civil Procedure (for short 'CPC'). Under Rule 36 A of the said Rules, 1937, the High Court/Deputy Commissioner may, on application or otherwise, call for the proceedings of any case decided by any officers subordinate to him and pass such orders as he may deem fit.
5. What are the appealable order(s) are clearly mentioned in Order XLIII of the CPC, 1908. Under Order XLIII (r) of the CPC, the orders under Order XXXIX of the CPC are appealable order(s). It is the basic principles for interpretation of the statute that any part of the statute shall not be read in isolation of the other part of the statute. In other words, the statute should be read as a whole and an attempt should be made for harmonious interpretation of all the parts of the statute. Therefore, Rule 36 A cannot be read in isolation of Rule 37 of the said Rules, 1937. On conjoint reading of Rule 36 A and 37 of the said Rules, 1937 and Order XLIII of the CPC, 1908, it is clear that any order passed under Order XXXIX of the CPC is appealable and the appeal should be filed against the said appealable order under Rules 36 A to the appellate court, if there are two courts having concurrent jurisdiction, the appeal should be filed normally to the lower appellate court i.e. lower of the two courts having concurrent jurisdiction.
6. Against the said order dated 02.06.2011 passed in Misc. Case No.9(T)2007, one of the party i.e. the proforma respondent No.5 (B.K.Bawri) filed a revision petition being Civil Revision Case No.1 of 2011 along with an application for condonation of delay being Misc. Case No.2 of 2011 in filing the REVIEW PETITION NO.(SH) 4/2012 Page 3 of 14 IN CR(P) NO. (SH)11/2012 revision petition in the Court of the Additional Deputy Commissioner at Nongpoh. The Court of the Additional Deputy Commissioner is the appellate court of the Assistant to Deputy Commissioner and in other words, the Court of the Additional Deputy Commissioner is an appellate court for the order passed under Order XXXIX of the CPC by the Assistant to Deputy Commissioner. It is worth to be mentioned that one should not be confused with the real meaning of a particular section because of the caption of that particular section. Accordingly, mentioning of appeal and revision in the caption of Rules 36 A of the said Rules, 1937, does not mean that against one order both appeal and revision could be filed in the court mentioned in Rules 36 A of the said Rules, 1937, but under Rule 36 A either appeal or revision should be filed against an order and whether it will be appeal or revision is to be decided on the nature of the order; if it is an appealable order appeal shall be filed and if not, revision will be filed.
7. The review petitioner/revision petitioner/plaintiff directly filed the revision i.e. Civil Revision Petition No.(SH)11/2012 against the said appealable order dated 02.06.2011 passed by the learned Assistant Deputy Commissioner in Misc. Case No.9(T) to this Court. It is nobody's dispute that the proforma respondent No.5 also had filed a revision petition against the same order i.e. dated 02.06.2011 in the Court of the Additional Deputy Commissioner along with an application for condonation of delay. The application for condonation of delay filed by the proforma respondent No.5 in the Court of the Additional to Deputy Commissioner was registered as Misc. Case No.2 of 2011 and accompanying revision petition was registered as Civil Revision Petition No.1 of 2011.
8. This Court vide order dated 22.06.2012, had dismissed the civil revision petition i.e. CR(P)No.(SH)11/2012 for inter-alia reasons that:-
(i) Under Rule 36 A of the said Rules, 1937, the High Court and the Deputy Commissioner have concurrent jurisdiction to entertain the revision petition/appeal;REVIEW PETITION NO.(SH) 4/2012 Page 4 of 14
IN CR(P) NO. (SH)11/2012
(ii) One of the party in T.S. No.7(T)2007 in which the impugned order dated 02.06.2011 had been passed had already filed an appeal/revision in the Court of the Additional Deputy Commissioner and accordingly, the civil revision petition i.e. CR(P)No.(SH)11/2012 cannot be filed by the present review petitioner/revision petitioner/plaintiff against the same order dated 02.06.2011 to this Court (High Court); and
(iii) The review petitioner/revision petitioner/plaintiff had failed to make out a case for invoking the revisional jurisdiction of this Court under Section 115 of the CPC for quashing/setting aside the said order dated 02.06.2011.
9. Against the said order of this Court dated 22.06.2012, the review petitioner/revision petitioner/plaintiff filed the present review petition on the following amongst other reasons that:-
(i) This Court passed order dated 22.06.2012 dismissing the CR(P)No.(SH)11/2012 on merit;
(ii) The parties had argued before this Court only the preliminary point of maintainability of the revision petition and not the merit of the revision petition;
(iii) The Civil Revision Petition No.(SH)11/2012 is maintainable, inasmuch as, Rules 36 A provides that appeal or revision against the order passed by the trial court i.e. dated 02.06.2011 either to the High Court or to the Additional Deputy Commissioner; and
(iv) The said revision petition i.e. Revision Case No.1 of 2011which was accompanied with an application for condonation of delay filed by the proforma respondent No.5 in the Court of Additional Deputy Commissioner had been finally disposed of vide order dated 06.07.2012 dismissing the application for condonation of delay.
10. On careful consideration of the grounds/reasons for filing the present review petition and also hearing of the submission of the learned counsel appearing for the review petitioner/revision petitioner/plaintiff, it is clear that the review petitioner/revision petitioner/plaintiff is asking for rehearing of the Civil Revision Petition No.(SH)11/2012 by filing the present review petition. As stated above, one of the grounds for filing the present review petition is that the parties REVIEW PETITION NO.(SH) 4/2012 Page 5 of 14 IN CR(P) NO. (SH)11/2012 argued only on the maintainability of the revision petition, but this Court had finally passed the order dated 22.06.2012 dismissing the revision petition on merit other than the preliminary point for maintainability of the revision petition. The contents of the order dated 22.06.2012 did not mention that the parties argued only on the preliminary issue of the maintainability of the revision petition. It is a settled law that the fact contains in the judgment as to what happened in the Court or as to what are the points argued in the Court are conclusive and cannot ordinarily be allowed to be controverted by an affidavit or otherwise. Regarding this settled law, it would be sufficed to refer to two cases i.e.
(i) Food Corpn. of India and others vs. Bhanu Lodh and others:
(2005) 3 SCC 618; and
(ii) Bank of Bihar vs. Mahabir Lal & Others: AIR 1964 SC 377 (380).
Para 11 of the SCC in Food Corpn. of India case (Supra) reads as follows:-
"11. We may first dispose of the contention raised by Mr. Sanjay Parikh, learned counsel for the petitioner in Special Leave Petition (Civil) No.11475 of 2004. Having perused the judgment of the learned Single Judge in the writ petition, we find that the only question which was argued before the learned Single Judge was the one which we have extracted hereinbefore. No other point seems to have been addressed to the Court. A perusal of the judgment in the writ appeal also supports this view. In the face of this record, it is not possible to accept the contention of the learned counsel for the petitioner that any other arguments were addressed. We must accept as correct the facts as obtaining from the judgment of the High Court, which cannot be controverted by the averments made in the present special leave petition, nor by the statement made across the Bar. We are, therefore, not in a position to accept that any contention other than the contention placed before the High Court was argued before the High Court. (See the observations of this Court in para 4 in the judgment of State of Maharashtra v. Ramdas Shrinivas Nayak: (1982) 2 SCC 463: 1982 SCC (Cri) 478.) The only contention which appears to have been argued and examined by the High Court pertained to the power of the Central Government to issue direction under sub- section (2) of Section 6 of the Act, which has the effect of putting an embargo on the direct recruitment of employees."
11. It is also settled position in law that principle of finality of the judgment of superior court should be maintained inasmuch as review petitions REVIEW PETITION NO.(SH) 4/2012 Page 6 of 14 IN CR(P) NO. (SH)11/2012 are not to be taken as a routine course. It is also equally well settled that as early as 1941, the Federal Court had discussed the principles governing the power of review in Raja Prithi Chand vs. Sukhrai: AIR 1941 FC 1 and held that the Federal Court will not sit as a Court of Appeal from its own decisions nor will it entertain applications to review for rehearing and also that an order once made is final.
12. The Apex Court in Col. Avtar Singh Seklhon vs. Union of India & Ors: AIR 1980 SC 2041 held that review is not a routine procedure and review does not lie even on a wrong decision. The Apex Court in Lily Thomas & Ors vs. Union of India & Ors: (2000) 6 SCC 224 held that review is not an appeal in disguise. The power to review cannot be exercised merely to substitute the point of law. Relevant portion of the judgment of the Apex Court in Lily Thomas & Ors vs. Union of India & Ors (Supra) is quoted hereunder:-
"The power of review is not an inherent power. It must be conferred by law. A review petition is also not an appeal in disguise. It cannot be denied that justice is a virtue which transcends all barriers and the rules or procedures or technicalities of law cannot stand in the way of administration of justice. Law has to bend before justice. If the court finds that the error pointed out in the review petition was under a mistake and the earlier judgment would not have been passed but for erroneous assumption which in fact did not exist and its perpetuation shall result in a miscarriage of justice nothing would preclude the court from rectifying the error.
The power of review can be exercised for correction of a mistake but not to substitute a view. Such powers can be exercised within the limits of the statute dealing with the exercise of power. The review cannot be treated like an appeal in disguise. The mere possibility of two views on the subject is not a ground for review. Once a review petition is dismissed no further petition of review can be entertained. The rule of law of following the practice of the binding nature of the larger Benches and not taking different views by the Benches coordinated jurisdiction of equal strength has to be followed and practiced. However, this Court in exercise of its power under Article 136 or Article 32 of the Constitution and upon satisfaction that the earlier judgments have resulted in deprivation of fundamental rights of a citizen or rights created under any other statue, can take a different view notwithstanding the earlier judgment."
13. The Apex Court in Sow, Chandra Kanta & Anr vs. Sheikh Habib:
AIR 1975 SC 1500 held that once an order passed by the superior court i.e. the Supreme Court or the High Court is final and cannot be interfered with lightly. An REVIEW PETITION NO.(SH) 4/2012 Page 7 of 14 IN CR(P) NO. (SH)11/2012 application for review of the earlier judgment of superior court cannot be entertained for the purpose of rehearing through different counsel and once an order had been passed by the court, a review thereof must be subject to the Rules of the game and cannot be lightly interfered with and review of the judgment is a serious step and reluctant resort to. It is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility. A mere repetition through different counsel of old and overruled arguments, a second trip over ineffectually covered ground or minor mistakes of inconsequential import are obviously insufficient for reviewing the earlier final judgment and order. The same principle is again reiterated by the Apex Court in Col. Avtar Singh Seklhon vs. Union of India & Ors (Supra).
14. The Apex Court in Union of India vs. Paul Manickam & Anr:
(2003) 8 SCC 342 held that a review application for bringing a new case which could have been mentioned earlier is not maintainable. Relevant portion at para 19 of the SCC in Union of India Vs. Paul Manickam & Anr (Supra) is quoted hereunder:-
"As noted supra, for the first time in the review application it was disclosed that the representation was made to the President of India and no representation was made to the State of Tamil Nadu or the Union of India who were arrayed in the writ petition as parties. This appears to be a deliberate attempt to create confusion and reap an undeserved benefit by adopting such dubious device. The High Court also transgressed its jurisdiction in entertaining the review petition with an entirely new substratum of issues. Considering the limited scope for review, the High Court ought not to have taken into account factual aspects which were not disclosed or were concealed in the writ petition."
15. The Apex Court in Aribam Tuleshwar Sharma vs. Aribam Pishak Sharma & Ors: (1979) 4 SCC 389 held that the final judgment and order cannot be reviewed on the ground that certain documents forming part of the record were not considered at the time of passing the judgment and order. Paras 3 & 4 of the SCC in Aribam Tuleshwar Sharma's Case (Supra) read as follows:- REVIEW PETITION NO.(SH) 4/2012 Page 8 of 14
IN CR(P) NO. (SH)11/2012 "3. The Judicial Commissioner gave two reasons for reviewing his predecessors order. The first was that his predecessor had overlooked two important documents exhibits A/1 and A/3 which showed that the respondents were in possession of the sites even in the year 1948, 49 and that the grants must have been made even by them. The second was that there was a patent illegality in permitting the appellant to question, in a single Writ Petition settlement made in favour of different respondents. We are afraid that neither of the reasons mentioned by the learned Judicial Commissioner constitutes a ground for review. It is true as observed by this Court in Shivdev Singh and Ors. v. State of Punjab and Ors. AIR 1963 SC 1909 there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits.
That would be the province of a Court of appeal. A power of review is not to be confused with appellate power which may enable an Appellate Court to correct all manner of errors committed by the Subordinate Court.
4. In the present case both the grounds on which the review was allowed were hardly grounds for review. That the two documents which were part of the record were not considered by the Court at the time of issue of a Writ under Article 226, cannot be a ground for review especially when the two documents were not even relied upon by the parties in the affidavits filed before the Court in the proceeding under Article 226. Again that several instead of one Writ Petition should have been filed is a mere question of procedure which certainly would not justify a review. We are, therefore, of the view that the Judicial Commissioner acted without jurisdiction in the allowing the review. The order of the Judicial Commissioner dated December 7, 1967 is accordingly set aside and the order dated May 25, 1965, is restored. The appeal is allowed but without costs.
16. Mr. S Jindal, learned counsel appearing for the review petitioner/revision petitioner/plaintiff had placed heavy reliance on the decisions of the Apex Court in:-
(i) Board of Control for Cricket, India & Anr. vs. Netaji Cricket Club & Ors: AIR 2005 SC 592 and
(ii) Jagmohan Singh vs. State of Punjab & Ors: (2008) 7 SCC 38.REVIEW PETITION NO.(SH) 4/2012 Page 9 of 14
IN CR(P) NO. (SH)11/2012 The Apex Court in Board of Control for Cricket, India case (Supra) held that when the Court accepts its own mistake in understanding the nature and purport of the undertaking given by the learned senior counsel appearing on behalf of the Board and its correlation with as to what transpired in the AGM of the Board held on 29th September, 2004, the subsequent event may be taken into consideration by the Court for the purpose of rectifying its own mistake. No doubt it is fairly settled law that if the Court finds that error pointed out in the review petition was under a mistake and the earlier judgment would not have been passed, the Court can certainly exercise the power for review for correcting the mistake. It is equally well settled that the revision petition is not a routine procedure and the review does not lie even on a wrong decision. Therefore, the mistake should be apparent and glaring one which could be seen apparently on the record even without considering the merit of the order for which review petition had been filed.
Paras 92 & 93 of the SCC in Board of Control for Cricket, India case (Supra) read as follows:-
"92. Yet again in Lily Tomas (supra), this Court has laid down the law in the following terms:
"52. The dictionary meaning of the word "review" is "the act of looking, offer something again with a view to correction or improvement". It cannot be denied that the review is the creation of a statute. This Court in Patel Narshi Thakershi v. Pradyumansinghji Arjunsinghji, AIR 1970 SC 1273 held that the power of review is not an inherent power. It must be conferred by law either specifically or by necessary implication. The review is also not an appeal in disguise. It cannot be denied that justice is a virtue which transcends all barriers and the rules or procedures or technicalities of law cannot stand in the way of administration of justice. Law has to bend before justice. If the Court finds that the error pointed out in the review petition was under a mistake and the earlier judgment would not have been passed but for erroneous assumption which in fact did not exist and its perpetration shall result in miscarriage of justice nothing would preclude the Court from rectifying the error ............."
(Emphasis supplied) REVIEW PETITION NO.(SH) 4/2012 Page 10 of 14 IN CR(P) NO. (SH)11/2012
93. It is also not correct to contend that the court while exercising its review jurisdiction in any situation whatsoever cannot take into consideration a subsequent event. In a case of this nature when the court accepts its own mistake in understanding the nature and purport of the undertaking given by the learned senior counsel appearing on behalf of the Board and its correlation with as to what transpired in the AGM of the Board held on 29th September, 2004, the subsequent event may be taken into consideration by the court for the purpose of rectifying its own mistake."
17. The Apex Court in a catena of cases held that a ratio of any decision must be understood in the background of the fact of that case. A little difference in facts or even one additional fact may make a lot of difference in the precedential value of a decision. The Apex Court in U.P. State Electricity Board vs. Pooran Chandra Pandey & Ors: (2007) 11 SCC 92 held that:
12. As observed by this Court in State of Orissa vs. Sudhansu Sekhar Misra: AIR 1968 SC 647( vide AIR pp. 651-52, para 13):
"13.................. A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it. On this topic this is what Earl of Halsbury, LC said in Quinn v. Leathem, 1901 AC 495: (1900-03) All ER Rep 1 (HL) 'Before discussing the case of Allen v. Flood (1898) AC 1 and what was decided therein, there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical Code, whereas every lawyer must acknowledge that the law is not always logical at all.
13. In Ambica Quarry Works vs. State of Gujarat & others: (1987) 1 SCC 213 (vide SCC p.221, para 18) this Court observed:-
"18. ........................The ratio of any decision must be understood in the background of the facts of that case. It has been said long time ago that a case is only an authority for what it actually decides, and not what logically follows from it."
REVIEW PETITION NO.(SH) 4/2012 Page 11 of 14 IN CR(P) NO. (SH)11/2012
14. In Bhavnagar University vs. Palitana Sugar Mill Pvt. Ltd:
(2003) 2 SCC 111 (vide SCC P.130, para 59), this Court observed:-
"59. ............ It is well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision."
(Emphasis supplied)
15. As held in Bharat Petroleum Corporation Ltd. & another vs. N.R.Vairamani & another: (2004) 8 SC 579: AIR 2004 SC 4778, a decision cannot be relied on without disclosing the factual situation. In the same Judgment this Court also observed: (SCC pp.584-85, paras 9-12) "9.Court should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid`s theorems nor as provisions of the statute and that too taken out of the context. These observations must be read in the context in which they appear to have been stated.
Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. vs. Horton:1951 AC 737: (1951) 2 All ER 1 (HL) (AC at p.761) Lord Mac Dermot observed: (All ER p.14 C-D).
"The matter cannot, of course, be settled merely by treating the ipsissima vertra of Willes, J. as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished judge.
10. In Home Office vs. Dorset Yacht Co. :1970 AC 1004:
(1970) 2 WLR 1140: (1970) 2 All ER 294 (HL) (All ER p.297 g-h) Lord Reid said, Lord Atkin`s speech .... is not to be treated as if it was a statute definition. It will require qualification in new circumstances.' Megarry, J. in Shepherd Homes Ltd. v. Sandham (No.2): (1971)1 WLR 1062: (1971) 2 All ER 1267, observed: (All ER p.1274 d).
"One must not, of course, construe even a reserved judgment of even Russell L. J. as if it were an Act of Parliament;
And, in Herrington v. British Railways Board: 1972 AC 877: (1972) 2 WLR 537: (1972) 1 All ER 749 [HL (E)] Lord Morris said: (All ER p. 761 c) "There is always peril in treating the words of a speech or judgment as though they are words in a REVIEW PETITION NO.(SH) 4/2012 Page 12 of 14 IN CR(P) NO. (SH)11/2012 legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case."
11. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.
12. The following words of Lord Denning in the matter of applying precedents have become locus classicus:
"Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo, J. ) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive."
*** *** *** "Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path of justice clear of obstructions which could impede it." (Emphasis supplied)
16. We are constrained to refer to the above decisions and principles contained therein because we find that often Uma Devi (3) (2006) 4 SCC 1: 2006 SCC (L&S)753 is being applied by Courts mechanically as if it were a Euclid's formula without seeing the facts of a particular case. As observed by this Court in Bhavnagar University: (2003) 2 SCC 111 and Bharat Petroleum Corporation Ltd.: (2004) 8 SCC 579: AIR 2004 SC 4778, a little difference in facts or even one additional fact may make a lot of difference in the precedential value of a decision. Hence, in our opinion, Uma Devi's: (2006) 4 SCC 1: 2006 SCC (L&S)753 case cannot be applied mechanically without seeing the facts of a particular case, as a little difference in facts can make Uma Devi's: (2006) 4 SCC 1: 2006 SCC (L&S)753 case inapplicable to the facts of that case."
18. The ratio laid down in Board of Control for Cricket, India case (Supra) should be understood in the fact of that case and in that case, the Court indicated its own mistake. Therefore, the ratio in Board of Control for Cricket, India case (Supra) is not applicable in the present case, inasmuch as, the factual background illustrated in Board of Control for Cricket, India case (Supra) for REVIEW PETITION NO.(SH) 4/2012 Page 13 of 14 IN CR(P) NO. (SH)11/2012 entertaining the review petition are diametrically different from that of the present case.
19. For the foregoing reasons, this review petition is devoid of merit and is accordingly dismissed.
JUDGE REVIEW PETITION NO.(SH) 4/2012 Page 14 of 14 IN CR(P) NO. (SH)11/2012