Monday 7 April 2014

Hobson's Choice or Review Petition? An Update

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.



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.

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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