In the only opportunity to get to a free wi-fi connection to the post by RDOA subsequent to the directions of the Apex Court, I was taken back to the pre-Aerial View days, when many, self included made suggestions, passed judgments and expressed opinions, and I was one amongst the angst ridden similarly situated officers.
RDOA, in my informed opinion has three options- file a response praying that the Apex Court may wish to review its decision of 31 Mar 14 by a Review Petition placing the opinion of the Ld AG dated 03 Sep 13 and buttressing its case that the original alleged contemnors be punished; while impleading the incumbent Defence Secretary and CGDA, that the averment of Ld SG contradicts the opinion of the highest law officer of the Govt of India, or seek implementation of the ibid opinion of Ld AG, as an interim measure given that many similarly situated officers are getting on in years.
RDOA, in my informed opinion has three options- file a response praying that the Apex Court may wish to review its decision of 31 Mar 14 by a Review Petition placing the opinion of the Ld AG dated 03 Sep 13 and buttressing its case that the original alleged contemnors be punished; while impleading the incumbent Defence Secretary and CGDA, that the averment of Ld SG contradicts the opinion of the highest law officer of the Govt of India, or seek implementation of the ibid opinion of Ld AG, as an interim measure given that many similarly situated officers are getting on in years.
E. Review Petition:
(Extract
from Hon’ble Supreme Court of India –
Practice and Procedure: A Handbook of Information)
Article 137 of the Constitution
of India, 1950, provides
that subject to provisions of any law and rules made under Article 145, the Hon’ble
Supreme Court has the power to review
any judgment pronounced or order made by it. Under Hon’ble Supreme Court Rules, 1966 such a petition is to be filed within thirty days
from the date of judgment or order and as far as practicable, it is to be circulated,
without oral arguments, to the same Bench of Judges who delivered the judgment
or order sought to be reviewed.
Author: D.H.Joshi (Advocate)
http://stpam.org/str/when-review-petition-can-be-filed-high-court-and-supreme-court
When
review petition can be filed in High Court and Hon’ble Supreme Court
(II) Review – its nature
1. Taking
into consideration the principle of stare decisis, courts generally do not
unsettle a decision, without a strong case. This provision regarding review is
an exemption to the legal principle of stare decisis.
2. The term
‘review’ has not been defined either in the Constitution or in any statute
pertaining to review. Oxford Advanced Learner’s Dictionary defines the word
‘review’ as “re-examination or reconsideration.” The basic philosophy inherent
in the concept of review is acceptance of human fallibility. (S. Nagaraj vs.
State of Karnataka (1993) Supp. (4) SCC 595).
3. As the
law stands in India ever since the adoption of the Indian Constitution, review
is the creation of statute. In Patel Narshi Thakershi & Ors. vs. Pradyun
Man Singh Ji (AIR 1970 SC 1273), the SC has held that the power of review is
not an inherent power. It must be conferred by law either specifically or by
necessary implication.
4. Even
during times when there was no statutory provision and when no rules were
framed by the highest Court indicating the circumstances in which it could
rectify its orders, Courts had culled out such power in order to avoid abuse of
process of the Court or miscarriage of justice. In 1941 the Federal Court
observed in Raja Prithwi Chand Lal Chaudhary vs. Sukhraj Rai (AIR 1941 FCI)
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.
5. In the
case of Northern India Caterers (India) Ltd. vs. Lt. Governor of Delhi, (1980)
2 SCR 650, V.R. Krishna Iyer, J., speaking for the Court has held that – “a
plea of review, unless the first judicial view is manifestly distorted, is like
asking for the moon”, in the same case R. S. Pathak, Judge., said “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 re-hearing and a fresh decision of
the case.” Citing with approval the earlier decision in Sajjan Singh vs. State
of Rajasthan (1985) 1 SCR 933, his Lordship held, “the normal principle is that
a judgment pronounced by the Court is final, and departure from that principle
is justified only when circumstances of a substantial and compelling character
make it necessary to do so.”
(III)
Statutory provisions
1. Article 137 deals with
the powers of the Hon’ble Supreme Court
to Review of judgments or orders.
2. In civil
proceedings, an application for Review is entertained only on a ground
mentioned in Order XLVII, Rule 1 of the CPC. The said Rule contemplates the
following grounds for Review of an order –
(i) The discovery
of a new and important matter or evidence which, after the exercise of due
diligence, was not within the petitioners’ knowledge or could not be produced
by him at the time when the order was made.
(ii) Some mistake or
error apparent on the face of the record.
3. Here, an elaboration
of the expression “error apparent on the face of the record” will be
worthwhile.
4. In this
context, “error” means “error of law” (Yakoob Syed vs. K.S. Radhakrishnan, AIR
1964 SC 477). ‘Law’ in this context includes a mixed question of fact and law
(Shafi Mohd. vs. Addl. Dist. & Sessions Judge, AIR 1977 SC 836). An ‘error
of fact’ apparent on the face of the record may be a ground for review under
Order 47 Rule 1 of the CPC (Sri Ambika Mills Co. Ltd. vs. S.B. Bhatt AIR 1961
SC 970).
5. Where an
application for review has been made and disposed of, no further application
for review shall be entertained in the same matter.
6. A.R. Antulay’s case –
A landmark judgment:
The
landmark judgment of A.R. Antulay vs. R.S. Nayak & Ors - AIR 1988 SC 1531,
has laid down two important principles as regards review of judgments by
Hon’ble Supreme Court. These principles are:
(i) Actus
curiae neminem gravabit (an act of the court should not prejudice anybody).
(ii)
Directions given per incuriam in violation of constitutional safeguards, and in
derogation of the principles of natural justice can always be remedied by the
Court.
(iii) It
was observed that the Hon’ble Supreme Court could give proper directions and correct the
error in earlier order if directions issued earlier are found to be violative
of the limits of jurisdiction and that those directions has resulted in
deprivation of fundamental rights of citizen guaranteed by the Constitution. In
this connection, the Hon’ble Supreme Court
referred to its earlier judgments in Prem Chand Garg vs. Excise
Commissioner, U.P., Allahabad, [AIR (1963) SC 996] Naresh Sridhar Mirajkar vs.
State of Maharashtra [(1966) (3) SCR 744], and Smt. Ujiam Bai vs. State of UP
[1963(1) SCR 788] and concluded that citizens should not suffer on account of
directions of the Court based upon error leading to conferment of jurisdiction.
Review petition was allowed.
(IV)
Where Review is possible
1. If the attention of
the Court is not drawn to a material statutory provision during the original
hearing, the Court may review its judgment [G.L. Gupta vs. D.N. Mehta (1971) 3
SCR 748].
2. 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. [O.N. Mahindroo vs. Dist.
Judge, Delhi
& Anr. (1971) 2 SCR 11].
3. The expression ‘any
other sufficient reason’ in Order XLVII Rule 1of the C.P.C. 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.
[Lily Thomas etc. vs. Union of India &
Ors. (2000) 6 SCC 224].
4. So, above is in a
nutshell the law we could trace on Review Petition.
1. If the attention of
the Court is not drawn to a material statutory provision during the original
hearing, the Court may review its judgment [G.L. Gupta vs. D.N. Mehta (1971) 3
SCR 748].
2. 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. [O.N. Mahindroo
vs. Dist. Judge, Delhi
& Anr. (1971) 2 SCR 11].
3. The
expression ‘any other sufficient reason’ in Order XLVII Rule 1of the C.P.C. 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. [Lily Thomas etc. vs. Union
of India & Ors. (2000) 6 SCC 224].
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