AI Structured Summary
Not yet generated for this judgment
Judgment
D.N. Patel, J.—This civil review has been preferred against the judgment dated 7th April, 2003, delivered by the learned Single Judge of this court in Second Appeal No. 21 of 2000 (R). I have heard party-in-person, who has mainly submitted that several errors have been committed by the learned Single Judge and several factually incorrect statements have been made in the judgment. It was mainly submitted by the party-in-person that he was appointed in Delhi Public School not on adhoc or temporary basis, but he was on probation. Further, he was appointed on the post of Grade III Teacher and not on Grade IV Teacher. His appointment was not at all temporary and appointment letter have not been issued by the authority with clean hands and that he is fully qualified for being appointed as a teacher in Grade II. It has also been mentioned in the impugned order that party-in-person, not being a B.Ed. degree holder, is not entitled for appointment on the post in question, but according to the party-in-person, B.Ed. degree was not a pre-requisite qualification for appointment on the post in question at the relevant time. He is also relying upon the following decisions.
(i) Umesh Kumar Sharma Vs. The State of Jharkhand,
(ii) Central Inland Water Transport Corporation Limited and Another Vs. Brojo Nath Ganguly and Another, .
Party-in-person has also relied upon the deposition of D.W. 1 before the trial court and he has submitted that there are gross errors committed by the learned Single Judge in not appreciating the aforesaid document while allowing the second appeal preferred by the respondents-Management. The present applicant filed a title suit, i.e. Title Suit No. 76 of 1993 before the court of Munsif at Ranchi, which was dismissed on 24th July, 1997. Thereafter, he preferred Title Appeal, being Title Appeal No. 63 of 1997, before the 8th Additional Judicial Commissioner, Ranchi, which was partly allowed vide order dated 19th February, 2000, against which a second appeal, being Second Appeal No. 21/2000 R was preferred by the respondent management, which was allowed vide judgment dated 7th April, 2003 and against this judgment present review application has been preferred.
Party-in-person has also read out several paragraphs of the judgment and pointed out that the learned Single Judge has not appreciated the fact that he was selected by the Managing Committee and thereafter, his appointment was approved by the Chairman and he was on probation for one year. According to him, as this aspect of the matter was not properly appreciated, therefore, the impugned judgment of this Court passed in Second Appeal No. 21 of 2000 (R) should be quashed and this review application may be allowed.
We have heard the learned counsel for the respondents, i.e. appellants in Second Appeal no. 21 of 2000 (R) It is submitted by the counsel for the respondents that this review application is not tenable at law. The present applicant was never appointed by the Chairman. The Delhi School Education Act, 1973 and the Delhi School Education Rules, 1973, upon which heavy reliance has been placed by the party-in-person, was never referred to before any of the court below. Counsel for the respondents has also pointed out from Ext. 1, 2 and 3 before the trial court that present applicant was appointed on purely temporary basis for a temporary period on the post of Grade IV Teacher in Chemistry and the management had already given public advertisement later on in the month of February, 1993 for regular appointment of Grade III and Grade IV Teachers in Chemistry. Apart from that there was requirement of B.Ed. degree for appointment on the aforesaid post, which the petitioner did not have and thus, the appointment of the petitioner was only on adhoc basis for a temporary period. Even as per the appointment letter issued to the present applicant, it is apparent that he was initially appointed for six months. Thereafter, his appointment was further extended for three months. The appointment letter and extension letter are Ext. No. 1 and 2 respectively and thereafter, as his period was over after three months, he was given a letter dated 31st May, 1993 (Ext. 3) for bringing out to his notice that his contractual period was over and this was under challenge in the aforesaid title Suit. Thus, it is submitted by the counsel for the management that the present applicant was never appointed on regular basis at all. The advertisement for regular appointment was given later on in the month of February, 1993 and therefore, no error has been committed by the learned Single Judge of this court while allowing the Second Appeal no. 21 of 2000 (R) appreciating all these documentary evidences on record. Counsel for the respondents have relied upon the following decisions:
(a) Smt. Meera Bhanja Vs. Smt. Nirmala Kumari Choudhury,
(b) Lily Thomas, Vs. Union of India and Others,
Counsel for the respondents submitted that the scope of the review power of the High Court is confined to the error apparent on the face of the record and review application should not be treated as an appeal against the impugned judgment and as there is no prima-facie error committed by the learned Single Judge of this Court, therefore, this review application is not tenable at law and against the impugned judgment party-in-person has never approached the higher forum inspite of the fact that the judgment has been delivered by this court on 7th April, 2003 and considerable time has elapsed since then and therefore, this review application is not tenable at law.
Having heard the party-in-person and counsel for the respondents and looking to the judgment and order delivered by this Court in second appeal no. 21 of 2000 (R) dated 7th April, 2003 and looking to the evidences on record, I see no reason to entertain this review application mainly for the reason that no error has been committed by the learned Single Judge of this Court while deciding Second Appeal No. 21 of 2000 (R). The party-in-person has submitted that he was appointed in Grade III and he was not appointed on temporary basis. He further submitted that he was on probation and his appointment letter was not given with a clean hand. These arguments are not accepted by this court mainly looking to Ext. 1, 2 and 3 before the learned trial court and also keeping in mind the deposition, given by Party-in-Person (D.W. 1) in the trial court, especially looking to paragraph 3 thereof. Looking to Ext. 1, 2 and 3, no error has been committed by this court in allowing the second appeal. On contrary the decision was absolutely in consonance with the documentary evidences on record of Title Suit No. 76 of 1993. In view of the above facts, I am not inclined to entertain this civil review. Further, as held in Smt. Meera Bhanja Vs. Smt. Nirmala Kumari Choudhury, scope of civil review and power of this court is very limited. It is confined to the error apparent on the face of the record and as there is no error apparent on the face of the record looking to the aforesaid decision, I am not inclined to entertain this civil review. It has also been held by Hon''ble Supreme Court in Lily Thomas, Vs. Union of India and Others, in paragraph 52-55 and 57 as under:
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 and Others Vs. Shri Pradyumansinghji Arjunsinghji, held that the power of review is into 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.
This Court in s. S. Nagaraj and Others Vs. State of Karnataka and Another, held:
Review literally and even judicially means re-examination or re-consideration. Basic philosophy inherent in it is the universal acceptance of human fallibility. Yet in the realm of law, the Courts and even the Statutes lean strongly in favour of finality of decision legally and properly made. Exceptions both statutorily and judicially have been carved out to correct accidental mistakes or miscarriage of justice. Even when there was no statutory provision and no rules were framed by the highest Court indicating the circumstances in which it could rectify its order the courts culled out such power to avoid abuse of process or miscarriage of justice. In (1942) I MLJ 74 (Federal Court) the Court to review its order yet it was available on the limited and narrow ground developed by the Privy Council in Rajunder Narain Rae v. Bijai Govind Singh (1836) 1 Moo PC 117 that an order made by the Court has final and could not be altered.
...nevertheless, if by misprision in embodying the judgments, by errors have been introduced, these Courts possess, by Common Law, the same power which the Courts of record and statute have of rectifying the mistakes made in drawing up its own judgments, and this Court must possess the same authority. The Lords have however gone a step further, and have corrected mistakes introduced through inadvertence I the details of judgments; or have supplied manifest defects in order to enable the decrees to be enforced, or have added explanatory matter, or hafe reconciled inconsistencies.'' Basis for exercise of the was stated in the same decision as under:
It is impossible to doubt that the indulgence extended in such cases is mainly owing to the natural desire prevailing to prevent irremediable injustice being done by a Court of last resort, where by some accident, without any blame, the party has not been heard and an order has been inadvertently made as if the party had been heard.
Rectification of an order thus stems from the fundamental principle that justice is above all. It is exercised to remove the error and not for disturbing finality. When the Constitution was framed the substantive power to rectify or recall the order passed by this Court was specifically provided by Art. 137 of the Constitution. Our Constitution makers who had the practical wisdom to visualise the efficacy of such provision expressly conferred the substantive power to review any judgment or order by Art. 137 of the Constitution. And Cl. (c) of Art. 145 permitted this Court to frame rules as to the conditions subject to which any judgment or order may be reviewed. In exercise of this power Order 40 had been framed empowering this Court to review an order in civil proceedings on grounds analogous to Order 47 Rule 1 of the Civil Procedure Code. The expression, ''for any other sufficient reason'' in the clause has been given an expanded meaning and a decree or order passed under misapprehension of true state of circumstances has been held to be sufficient ground to exercise the power. Apart from Order 40, Rule 1 of the Supreme Court Rules this Court has the inherent power to make such orders as may be necessary in the interest injustice or to prevent the abuse of process of Court. The Court is thus not precluded from recalling or reviewing its own order if it is satisfied that it is necessary to do so for sake of justice.
The mere fact that two views on the same subject are possible is no ground to review the earlier judgment passed by a Bench of the same strength.
This Court in Northern India Caterers (India) Ltd. Vs. Lt. Governor of Delhi, considered the powers of this Court under Art. 137 of the Constitution read with O.47, Rule 1, C.P.C. And O. 40, Rule 1 of the Supreme court Rules and held (para 8):
It is well settled that a party is not entitled to seek a review of a judgment delivered by this Court merely for the purpose of a rehearing and a fresh decision of the case. The normal principle is that a judgment pronounced by the Court is final, and departure from that principle is justified any when circumstances of a substantial and compelling character make it necessary to do so, Sajjan Singh Vs. State of Rajasthan, . for instance, if the attention of the Court is not drawn to a material statutory provision during the original hearing. Girdhari Lal Gupta Vs. D.H. Mehta and Another, . The Court may also reopen its judgment if a manifest wrong has been done and it is necessary to pass an order to do full and effective justice. On O.N. Mohindroo Vs. The District Judge, Delhi and Another, . Power to review its judgments has been conferred on the Supreme Court by Art. 137 of the Constitution, and that power is subject of the provisions of any law made by Parliament or the rules made under Art. 145. In a civil proceeding, an application for review is entertained only on a ground mentioned in O. 47, Rule 1 of the CPC and in a criminal proceeding on the ground of an error apparent on the feet of the record. (Order 40, Rule 1, Supreme Court Rules, 1966). But whatever the nature of the proceeding, it is beyond dispute that a review proceeding cannot be equated with original hearing of the case, and the finality of the judgment delivered by the Court will not be reconsidered except ''where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility. '' Sow Chandra Kante and Another Vs. Sheikh Habib, .
Article 137 empowers this Court to review its judgments subject of the provisions of any law made by Parliament or any rules made under Art. 145 of the Constitution. The Supreme Court Rules made in exercise of the powers under Art. 145 of the Constitution prescribe that in civil cases, review lies on any of the ground specified in O. 47, rule 1 of the CPC which provides:
Application for review of judgments-(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 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 of the Court which passed the decree or made the order.
Under O. 40, Rule 1 of the Supreme court Rules no review lies except on the ground of error apparent on the fact of the record in criminal cases. Order 40, Rule 5 of the Supreme Court Rules provides that after an application for review has been disposed of no further application shall be entertained in the same matter.
In A.R. Antulay Vs. R.S. Nayak and Another, this Court held that the principle of English law that the size of the Bench did not matter has not been accepted in this country. In this country there is a hierarchy within the Court itself where larger Benches overruled smaller Benches. This practice followed by the Court was declared to have been crystalised as a rule of law. Reference in that behalf was made to the judgments in Javed Ahmed Abdul Hamid Pawala Vs. State of Maharashtra, , State of Orissa and Others Vs. Titaghur Paper Mills Company Limited and Another, , Union of India (UOI) and Others Vs. Godfrey Philips India Ltd., . In that case the Bench comprising seven Judges was called upon to decide as to whether the directions given by the Bench of this Court comprising five-Judges in the case of R.S. Nayak Vs. A.R. Antulay, were legally proper or not and whether the action and the trial proceedings pursuant to those directions were legal and valid. In that behalf reference was made to the hierarchy of Benches and practice prevalent in the country. It was observed that Court was not debarred from reopening the question of giving proper directions and correcting the error in appeal if the direction issued in the earlier case on 16th February, 1984 were found to be violative of limits of jurisdiction and that toes directions had resulted in deprivation of fundamental rights of a citizen granted by Arts. 14 and 21 of the Constitution of India. The Court referred to its earlier judgment in Prem Chand Garg Vs. Excise Commissioner, U.P., Allahabad, , Naresh Shridhar Mirajkar and Others Vs. State of Maharashtra and Another, , Smt. Ujjam Bai Vs. State of Uttar Pradesh, and concluded that the citizens should not suffer on account of directions of the Court based upon error leading to conferment of jurisdiction. The directions issued by the Court were found on facts to be violative of the limits of jurisdiction resulting in the deprivation of the fundamental rights guaranteed to the appellant therein. It was further found that the impugned directions had been issued without observing the principle of audi alteram partem.
it follows, therefore, that the power of review can be exercised for correction a mistake and not to substitute a view. Such powers can be exercises within the limits of the statute dealing with the exercise of power. The review cannot be treated 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 practised. However, this Court in exercise of its power under Art. 136 or Art. 32 of the Constitution and upto satisfaction that the earlier judgments have resulted in deprivation of fundamental rights of a citizen or rights created under any other statute, can take different view not withstanding the earlier judgment.
Otherwise also no ground as envisaged under O. 40 of the Supreme Court Rules read with O. 47 of the CPC has been pleaded in the review petition or canvassed before us during the arguments for the purposes of reviewing the judgment in Saria Mudgal''s case Smt. Sarla Mudgal, President, Kalyani and others Vs. Union of India and others, . It is not the case of the petitioners that they have discovered any new and important matter which after the exercise of due diligence was not within their knowledge or could not be brought to the notice of the Court at the time of passing of the judgment. All pleas raised before us were in fact addressed for and on behalf of the petitioners before the Bench which, after considering those pleas, passed the judgment in Sarla Mudgal''s case. We have also not found any mistake or error apparent on the face of the record requiring a review. Error contemplated under the rule must be such which is apparent on the face of the record and not an error which is to be fished out and searched. It must be an error of inadvertence. No such error has been pointed out by the learned counsel appearing for the parties seeking review of the judgment. The only arguments advanced were that the judgment interpreting S. 494 amounted violation of some of the fundamental rights. No other sufficient cause has been shown for reviewing the judgment The words "any other sufficient reason appearing in o.47, Rule 1, C.P.C." must mean "a reason sufficient on grounds at least analogous to those specified in the rule" as was held in (1922) ILR 3 LAH 127 (Privy Council) and approved by this Court in Moran Mar Basselios Catholicos and Another Vs. The Most Rev. Mar Poulose Athanasius and Others, . Error apparent on the fact of the proceedings is an error which is based on clear ignorance or disregard of the provisions of law. In T.C. Basappa Vs. T. Nagappa and Another, this Court held that such error is an error which is a patent error and not a mere wrong decision. In Hari Vishnu Kamath Vs. Syed Ahmad Ishaque and Others, it was held (para 23):
...It is essential that it should be something more than a mere error; it must be one which must be manifest on th face of the record''. The real difficulty with reference to this matter, however, is to so much in the statement of the principle as in its application to the facts of a particular case. When does an error cease to be mere error, and become an error apparent on the face of the record? Learned counsel for either side were unable to suggest any clear cut rule by which the boundary between the two classes of errors could be demarcated. Mr. Pathak for the first respondent contended on the strength of certain observations of Chagla, C.J. In-'' Batuk K. Vyas Vs. Surat Borough Municipality and Others, that no error could be said to be apparent on the fact of the record if it was not self-evident and if it required an examination or argument to establish it This test might afford a satisfactory basis for decision in the majority of cases. But there must be cases in which even this test might break down, because judicial opinions also differ, and an error that might be considered by one-Judge as self-evident might not be so considered by another. The fact is that what is an error apparent on the fact of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case.
Therefore, it can safely be held that the petitioners have not made out any case within the meaning of Art. 137 read with O. 40 of the Supreme Court Rules and O. 47, rule 1 of the C.P.C. For reviewing the judgment in Smt. Sarla Mudgal, President, Kalyani and others Vs. Union of India and others, . The petition is misconceived and bereft of any substance.
In view of the aforesaid decision also, only in the cases of mistake apparent on the face of the record, review petition is tenable in law and as in the present case there is no error apparent on the face of the record in this case, decision in the Second Appeal delivered by this Court is absolutely in consonance with the Ext. 1, 2 and 3 before the trial court and also in consonance with the deposition of the witnesses on the record. In view of the aforesaid judicial pronouncements and looking to the facts and circumstances of the case, there is no substance in the review application, which is accordingly dismissed.