AI Structured Summary
Not yet generated for this judgment
Judgment
Lok Pal Singh, J
Review application has been filed by the review applicant-petitioner seeking review of judgment and order dated 16.11.2019 passed by this Court,
whereby the writ petition was dismissed on merit. The review application has been filed precisely on the ground that the judgment and order is per
incuriam. Further ground has been taken in the review application that this Court has recorded erroneous findings while dismissing the writ petition.
Learned counsel for the review applicant would submit that Section 2(u) of Uttarakhand School Education Act, 2006 defines the word
‘teacher’, which includes a Principal, Headmaster or other teacher, thus, the officiating Principal ought not to have been considered a Principal.
I have heard learned counsel for the parties and perused the material available on record.
The writ petition has been dismissed by the Court on merit vide judgment and order dated 16.11.2019. Thus the core issue before the Court is with
regard to Section 2(u) of the Act.
Section 2(u) of the Act defines the word ‘teacher’. The same is extracted below:
“‘Teacher’ of an institution receiving maintenance grant from the State funds means a Principal, Head Master or other teacher in respect of
whose employment maintenance grant is paid by the State Government to the institution and includes any other teacher employed according to rules in
fulfillment of the conditions of recognition of the institution or as a result of the opening with the approval of the District Education Officer of a new
section in an existing class.â€
This Court has considered the definition of a Teacher in view of Section 2(u) of the Act and elaborately discussed the definition more particularly
other words, which suggests that the definition of the Principal, Head Master or other Teachers includes the officiating Principal.
The scope of review in view of the provisions contained under Section 114 and Order 47 Rule 1 of the CPC are limited. Section 114 and Order 47
Rule 1 of CPC are extracted hereunder:-
“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 appear 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.â€
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 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 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.]â€
The jurisdiction of review is within the parameters of the provisions contained under Order 47 Rule 1 of CPC. In order to entertain a review
application, the first and foremost thing is that there must be an error or mistake apparent on the face of record. Under the guise of review, the parties
are not entitled to be reheard on merit. While hearing the review application, the review court should not enter into and decide the controversy de
novo as a trial or as an appellate authority. If an error in a judgment is apparent on the face of record, the court may review the judgment, but if the
review court is required to discuss the pleading and the evidence de novo, it cannot be a subject matter of the review petition and in such a situation,
the judgment, sought to be reviewed, can only be challenged before the appellate court. Law on this subject is no more res integra and has been
discussed in a catena of judgments.
In Sasi (D) Through Lrs. Petitioner (s) Versus Aravindakshan Nair and Others, (2017) 4 SCC 692, Hon’ble Apex Court has held as under:-
“5. Order 47 Rule 1 of the Code of Civil Procedure reads as follows:- “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, 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 4 the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment.
The grounds enumerated therein are specific. The principles for interference in exercise of review jurisdiction are well settled. The Court
passing the order is entitled to review the order, if any of the grounds specified in the aforesaid provision are satisfied.
In Thungabhadra Industries Ltd. v. Govt. of A.P.1 , the Court while dealing with the scope of review had opined:-
“What, however, we are now concerned with is whether the statement in the order of September 1959 that the case did not involve any
substantial question of law is an ‘error apparent on the face of the record’). The fact that on the earlier occasion the Court held on
an identical state of facts that a substantial question of law arose would not per se be conclusive, for the earlier order itself might be
erroneous. Similarly, even if the statement was wrong, it would not follow that it was an ‘error apparent on the face of the record’,
for there is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a
decision which could be characterised as vitiated by ‘error apparent’. A review is by no means an appeal in disguise whereby an
erroneous decision is reheard and corrected, but lies only for patent error.â€
7 Â In Parsion Devi v. Sumitri Devi2 , the Court after referring to Thungabhadra Industries Ltd. (supra), Meera Bhanja v. Nirmala Kumari
Choudhury3 and Aribam Tuleshwar Sharma v. Aribam Pishak Sharma4, held thus:-
“Under Order 47 Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the
record. An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on
the face of the record justifying the court to exercise its power of review under Order 47 Rule 1 CPC. In exercise of the jurisdiction under
Order 47 Rule 1 CPC it is not permissible for an erroneous decision to be “reheard and correctedâ€. A review petition, it must be
remembered has a limited purpose and cannot be allowed to be “an appeal in disguiseâ€â€.
The aforesaid authorities clearly spell out the nature, scope and ambit of power to be exercised. The error has to be self-evident and is
not to be found out by a process of reasoning. We have adverted to the aforesaid aspects only to highlight the nature of review
proceedings.
In Haryana State Industrial Development Corporation Ltd. vs. Mawasi & Ors. (2012) 7 SCC 200, Hon’ble Apex Court, while discussing the
law on the subject matter from the very beginning, has held as under:-
At this stage it will be apposite to observe that the power of review is a creature of the statute and no Court or quasi-judicial body or
administrative authority can review its judgment or order or decision unless it is legally empowered to do so. Article 137 empowers this
Court to review its judgments subject to the provisions of any law made by Parliament or any rules made under Article 145 of the
Constitution. The Rules framed by this Court under that Article lay down that in civil cases, review lies on any of the grounds specified in
Order 47 Rule 1 of the Code of Civil Procedure, 1908 which reads as under: Order 47, Rule 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 439 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 of 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 aforesaid provisions have been interpreted in several cases. We shall notice some of them. In S. Nagaraj v. State of Karnataka
1993 Supp (4) SCC 595, this Court referred to the judgments in Raja Prithwi Chand Lal Choudhury v. Sukhraj Rai and Rajunder Narain
Rae v. Bijai Govind Singh and observed: (S. Nagaraj case, SCC pp. 619-20, para 19)
“19. 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 Raja Prithwi Chand Lal Choudhury
v. Sukhraj Rai the Court observed that even though no rules had been framed permitting the highest Court to review its order yet it was
available on the limited and narrow ground developed by the Privy Council and the House of Lords. The Court approved the principle laid
down by the Privy Council in Rajunder Narain Rae v. Bijai Govind Singh that an order made by the Court was 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 which have crept in .... The House of Lords exercises a
similar power of rectifying 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 in the details of judgments; or have supplied
manifest defects in order to enable the decrees to be enforced, or have added explanatory matter, or have reconciled inconsistencies.
Basis for exercise of the power 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.â€
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 Article 137 of the Constitution. Our Constitutionmakers who had the practical wisdom to visualise the efficacy of
such provision expressly conferred the substantive power to review any judgment or order by Article 137 of the Constitution. And clause (c)
of Article 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 XL had been framed empowering this Court to review an order in civil proceedings on grounds analogous to Order
XLVII 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 441 to
exercise the power. Apart from Order XL Rule 1 of the Supreme Court Rules this Court has the inherent power to make such orders as may
be necessary in the interest of justice 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.â€
28 In Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius AIR 1954 SC 526, the three Judge Bench referred to the
provisions of the Travancore Code of Civil Procedure, which was similar to Order 47 Rule 1 CPC and observed: ―
“32… It is needless to emphasise that the scope of an application for review is much more restricted than that of an appeal. Under the
provisions in the Travancore Code of Civil Procedure which is similar in terms to Order 47 Rule 1 of our Code of Civil Procedure, 1908,
the court of review has only a limited jurisdiction circumscribed by the definitive limits fixed by the language used therein.
It may allow a review on three specified grounds, namely, (i) discovery of new and important matter or evidence which, after the exercise of
due diligence, was not within the applicant's knowledge or could not be produced by him at the time when the decree was passed,
(ii) mistake or error apparent on the face of the record, and (iii) for any other sufficient reason.
It has been held by the Judicial Committee that the words ‘any other sufficient reason’ must mean ‘a reason sufficient on grounds,
at least analogous to those specified in the rule’. (See Chhajju Ram v. Neki). This conclusion was reiterated by the Judicial Committee in
Bisheshwar Pratap Sahi v. Parath Nath AIR 1934 PC 213 (E) and was adopted by on Federal Court in Hari Shankar Pal v. Anath Nath
Mitter AIR 1949 FC 106 at pp. 110, 111 (F). The learned counsel appearing in support of this appeal recognises the aforesaid limitations
and submits that his case comes within the ground of ‘mistake or error apparent on the face of the record’ or some ground
analogous theretoâ€.
In Thungabhadra Industries Ltd. v. Govt. of A.P. (1964) 5 SCR 174, another three-Judge Bench reiterated that the power of review is
not analogous to the appellate power and observed (Para 11):
“11…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.â€
In Aribam Tuleshwar Sharma v. Aibam Pishak Sharma (1979) 4 SCC 389, this Court answered in affirmative the question whether the
High Court can review an order passed under Article 226 of the Constitution and proceeded to observe (Para 3):
“3….But, there are definitive limits to the exercise of the 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
powers which may enable an appellate court to correct all manner of errors committed by the subordinate court.
In Meera Bhanja v. Nirmala Kumari Choudhury (1995) 1 SCC 170, the Court considered as to what can be characterised as an error
apparent on the fact of the record and observed:
“9.…….it has to be kept in view that an error apparent on the face of record must be such an error which must strike one on mere
looking at the record and would not require any long-drawn process of reasoning on points where there may conceivably be two opinions.
We may usefully refer to the observations of this Court in the case of Satyanarayan Laxminarayan Hegde v. Mallikarjun Bhavanappa
Tirumale AIR 1960 SC 137 wherein, K.C. Das Gupta, J., speaking for the Court has made 443 the following observations in connection with
an error apparent on the face of the record:
17….An error which has to be established by a longdrawn process of reasoning on points where there may conceivably be two opinions
can hardly be said to be an error apparent on the face of the record. Where an alleged error is far from self-evident and if it can be
established, it has to be established, by lengthy and complicated arguments, such an error cannot be cured by a writ of certiorari according
to the rule governing the powers of the superior court to issue such a writ.
In Parsion Devi v. Sumitri Devi (1997) 8 SCC 715, the Court observed:
“9….An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on
the face of the record justifying the Court to exercise its power of review under Order 47 Rule 1 CPC…….. A review petition, it must be
remembered has a limited purpose and cannot be allowed to be ―an appeal in disguiseâ€.
In Lily Thomas v. Union of India (2000) 6 SCC 224, R.P. Sethi, J., who concurred with S. Saghir Ahmad, J., summarised the scope of the
power of review in the following words
“56…―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 of coordinated jurisdiction of equal strength has to be followed and practised.
In Haridas Das v. Usha Rani Banik (2006) 4 SCC 78, the Court observed
“13…The parameters are prescribed in Order 47 CPC and for the purposes of this lis, permit the defendant to press for a rehearing
‘on account of some mistake or error apparent on the face of the records or for any other sufficient reason’. The former part of the
rule deals with a situation attributable to the applicant, and the latter to a jural action which is manifestly incorrect or on which two
conclusions are not 444 possible. Neither of them postulate a rehearing of the dispute because a party had not highlighted all the aspects of
the case or could perhaps have argued them more forcefully and/or cited binding precedents to the court and thereby enjoyed a favourable
verdict.â€
Further, in the case of Inderchand Jain (Dead) through LRS Vs. Motilal (dead) through LRS, (2009) 14 SCC 663, Hon’ble Apex Court has
observed that the Court, in a review petition, does not sit in appeal over its own order and rehearing of the matter is impermissible in law. Paragraph
10 of the said decision is relevant which is extracted hereunder:
“10. It is beyond any doubt or dispute that the review court does not sit in appeal over its own order. A re-hearing of the matter is
impermissible in law. It constitutes an exception to the general rule that once a judgment is signed or pronounced, it should not be altered. It
is also trite that exercise of inherent jurisdiction is not invoked for reviewing any order. Review is not appeal in disguise. In Lily Thomas v.
Union of India [AIR 2000 SC 1650], this Court held: 440 ""56. It follows, therefore, that the power of review can be exercised for correction
of a mistake and 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 an appeal in disguise.
As per the law laid down by Hon’ble Apex Court in the aforesaid judgments, review cannot be treated an appeal in disguise whereby an
erroneous decision is reheard and corrected. Review court is not required to discuss the pleading and the evidence de novo. A review lies only for
patent error. Furthermore, a perusal of the judgment sought to be reviewed would reveal that precisely the review application has been filed on the
ground that the judgment has been passed taking recourse of judgment which is per incuriam to the fact of the case of the petitioner/review applicant.
This Court has no jurisdiction to reconsider the validity of the judgments relied by this Court in the judgment dated 16.11.2019 but again this Court has
gone through with the ratio of the judgments cited by this Court in the said judgment, this Court is of the view that the correct proposition of law has
been laid down in the judgment impugned. Suffice to say that there is an error apparent on the face of record. A review cannot be treated an appeal in
disguise. Since the review applicant could not point out any error apparent on the face of record and has utterly failed to make out a case for review
of the judgment impugned. Thus, the review application is liable to be dismissed.
In view of the foregoing discussion, I do not find any merit in the review application. Review application is accordingly dismissed.
No order as to costs.