$~22
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ LPA 340/2016
Judgment reserved on : April 28, 2017
Judgment pronounced on : May Ist, 2017
R. P. LUTHRA .....Appellant
Through: Petitioner in person.
Versus
UNION OF INDIA & ANR. ....Respondents
Through: Mr. Jasmeet Singh, GGSC for UOI.
CORAM:
HON'BLE MS. JUSTICE HIMA KOHLI
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
SANGITA DHINGRA SEHGAL, J.
Rev. Pet. No. 163/2017 (by the petitioner for seeking review of the order dated 01.03.2017)
1. The present Review Petition has been filed by the appellant seeking review of the judgment dated 01.03.2017, passed in LPA No. 340/2016. The appeal was dismissed holding inter alia as under:-
"8. The first contention of the appellant that the Collegium should not have made the recommendation without finalizing the Memorandum of Procedure for improvement of the Collegium System of appointment of judges suggested by the Constitution Bench of the Supreme Court vide judgment dated 16.10.2015 in W.P.(C) No.13/2015 titled Supreme Court Advocates-on- Record Association & Anr. Vs. Union of India & Ors. is without any substance in the light of the order of the Constitution Bench dated 19.11.2015 in which while reserving the order, it was made clear that the process of appointment of Judges by the Collegium system need not remain on hold.Rev. Pet. No. 163/2017 in LPA 340/2016 Page 1 of 6
9. The further contention that the impugned recommendation is violative of Articles 14, 16, 19 and 21 of the Constitution of India on the ground that the candidature of the petitioner who is also eligible to be appointed as a Judge was not considered by the Collegium is equally untenable and liable to be rejected in the light of the settled legal position that there is a basic difference between 'eligibility' and 'suitability'. As held in Mahesh Chandra Gupta Vs. Union of India (2009) 8 SCC 273, the appointment of a Judge of the High Court/Supreme Court requires 'consultation' and fitness of a person to be appointed is evaluated in the consultation process. Thus, it is clear that the evaluation of the worth and merit of a person is a matter entirely different from eligibility of a candidate for elevation. It was also made clear in the said decision that it is only in the cases of eligibility that the mechanism of judicial review can be invoked and not otherwise. Therefore, the contention of the appellant with regard to judicial review of the impugned recommendation of the Collegium is also liable to be rejected.
10. It may also be added that the names recommended by the Supreme Court Collegium under the impugned recommendation have already been accepted and they have been appointed as the Judges of the Supreme Court by the President of India. Hence, Article 124(4) is attracted and therefore, on that ground also the order under appeal dismissing the writ petition warrants no interference.
11. The contention with regard to the binding nature of the law declared by the Supreme Court under Article 141 of the Constitution of India needs no consideration since prayer (C) and (D) in the writ petition have not been pressed by the appellant."
2. Review of the judgment dated 01.03.2017, has been sought by the appellant on the grounds that he was not allowed to argue his appeal Rev. Pet. No. 163/2017 in LPA 340/2016 Page 2 of 6 covering each and every aspect; that none of the issues raised in the appeal have been adjudicated by the predecessor Bench and that none of the grounds or judgments relied upon for the dismissal of the appeal, had ever been brought to the notice of the appellant before passing the judgment under review.
3. Coming to the first submission made by the appellant that he was not allowed to argue his appeal, we had drawn his attention to the order dated 18.07.2016, wherein it was recorded that both, the appellant and the learned ASG appearing for the respondents were heard and judgment reserved. Further, liberty was granted to the appellant to file written submissions. When confronted with the aforesaid order, the appellant had fairly stated that he did not wish to press the said ground for seeking review of the judgment dated 01.03.2017.
4. As for the other pleas taken by the appellant for seeking re-hearing of the appeal, it may be stated that the scope of a review petition lies in a narrow compass. Order XLVII Rule 1 CPC lays down the parameters of exercising review jurisdiction. The said provision makes it abundantly clear that the power of a review can be invoked on discovery of new and important matter or evidence, which after exercise of due diligence was Rev. Pet. No. 163/2017 in LPA 340/2016 Page 3 of 6 not within the knowledge of the party or could not be produced at the time when the judgment was passed or on the ground of some mistake or error apparent on the face of the record or for any other sufficient reason.
5. In the case of Thungabhadra Industries Ltd. vs. Govt. of A.P. reported as AIR 1964 SC 1372, the scope of a review petition was delineated by the Supreme Court in the following words:-
"11. 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." Emphasis added
6. In the case of Parsion Devi vs. Sumitri Devi reported as (1997) 8 SCC 715, on a conspectus of the law laid down in Thungabhadra Industries (supra), Aribam Tuleshwar Sharma vs. Aribam Pishak Sharma reported as (1979) 4 SCC 389 and Meera Bhanja vs. Nirmala Kumari Rev. Pet. No. 163/2017 in LPA 340/2016 Page 4 of 6 Choudhury reported as (1995) 1 SCC 170 and, the Supreme Court had held as follows:-
"9. 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 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 corrected". A review petition, it must be remembered has a limited purpose and cannot be allowed to be "an appeal in disguise." Emphasis Added
7. In a recent decision dated 03.03.2017 in the case of Sasi (D) Through LRs vs. Aravindakshan Nair and Others, reported as 2017 (3) SCALE 383 after taking note of the aforesaid authorities that have laid down the nature, scope and ambit of review jurisdiction, the Supreme Court has reiterated that "the error has to be self-evident and is not to be found out by a process of reason."
8. In the case at hand, under the garb of a review application, the appellant is actually seeking a re-hearing of the appeal that was dismissed on merits on 01.03.2017, which is impermissible. The purpose of a review application is fairly limited and it cannot be used as a tool to re- Rev. Pet. No. 163/2017 in LPA 340/2016 Page 5 of 6 argue an appeal that has already been decided. We are therefore of the opinion that none of the circumstances contemplated under Order XLIVII Rule 1 CPC have arisen in the present case and nor are the grounds taken for seeking review of the judgment dated 01.03.2017, available to the appellant for interference, in exercise of review jurisdiction.
9. If the appellant is aggrieved by the said decision, it is for him to seek legal recourse. However, the grounds taken in the review application do not entitle the appellant to seek a review.
10. Accordingly, the review application is dismissed as being devoid of merits.
SANGITA DHINGRA SEHGAL, J HIMA KOHLI, J MAY 1, 2017 gr/rkb Rev. Pet. No. 163/2017 in LPA 340/2016 Page 6 of 6