Allahabad High Court
Alok Saini 27 (S/B)2005 vs Remote Sensing Applications ... on 13 December, 2013
Bench: Rajiv Sharma, Surendra Vikram Rathore
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Reserved
Case :- REVIEW PETITION No. - 92 of 2012
Petitioner :- Alok Saini 27 (S/B)2005
Respondent :- Remote Sensing Applications Centre U.P.Throu Its Dir.& Anr.
Counsel for Petitioner :- Faisal Ahmad Khan
Counsel for Respondent :- Dipak Seth
Hon'ble Rajiv Sharma,J.
Hon'ble Surendra Vikram Singh Rathore,J.
1. Heard learned counsel for the review petitioner, learned counsel for the opposite party and perused the material available on record.
2. The instant review petition has been filed under Chapter V, Rule 12 of the Allahabad High Court Rules for reviewing the judgment and order dated 13.2.2012 passed in Writ Petition No. 27 (SB) of 2005 (Alok Saini Vs. Remote Sensing Application Centre and another). In the aforesaid writ petition, challenge of the review petitioner was his suspension order. While disposing of the aforesaid writ petition, this Court passed the following orders:-
"It is pertinent to mention that in exercise of the powers conferred upon the State Government under Rule 23 (1) of Rules of Association of the Centre, the State Government had conferred upon the Secretary, Science & Technology, the administrative, financial and legal powers of the Director of the Centre. Moreover, from the record, it also comes out that the action taken by the Secretary, has been rectified by the Governing Body. Thus, the assertion of the petitioner that the impugned order is without jurisdiction and non est, is not acceptable.
In view of the above, we do not find any illegality or infirmity in the impugned order of suspension. The writ petition is dismissed accordingly. However, it will be open to the opposite parties to pass appropriate order of punishment as the enquiry has already been concluded."
3. The instant review petition has been filed inter alia on the ground that Division Bench of this Court was ceased with the same question regarding validity of the order dated 13.2.2012 and vide judgment and order dated 6.9.2013, passed in Writ Petition No. 11 (SB) of 2004 (Amrednra Narayan Singh Vs. Remote Sensing Application Centre, Lucknow) passed the following orders:-
"103. In view of the facts and circumstances and discussion, made hereinabove, the finding is summarised as under:-
(i) ................................
(ii) ................................
(iii) ...............................
(iv) ................................
(v) ...............................
(vi) ................................
(vii) ......................... The Division Bench of this Court by judgment and order passed in Writ Petition No. 1191 of 1991 (R.S. Chaturvedi Versus State of U.P.) has rightly held that the government lacks jurisdiction to interfere with the functioning of the Centre and only the Governing Council possess jurisdiction to initiate disciplinary proceedings and punish an officer of the Centre.
105. the writ petitions are allowed. A writ in the nature of certiorari is issued quashing the impugned orders dated 14.10.2003 (Annexure -1) 15.11.2003 (Annexure-2), 25.1.2003 (Annexure-3), passed in writ petition No. 11(S/B) of 2004, Office Memorandum dated 13.2.2004 (Annexure No.1 to the writ petition No.507 of 2004), Impugned order dated 15.11.2003 (Annexure No.1 to the writ petition No.1487 of 2003), impugned orders dated 15.11.2003 (Annexures 1 and 2), 14.10.2003 (Annexure No.3 passed in writ petition No. 1486 of 2003), impugned orders dated 15.11.2003, 25.11.2003 (Annexures 1 and 2), 14.10.2003 (Annexure No.3 to writ petition No. 1599 of 2003) with consequential benefits."
4. It is submitted that the judgment of co-ordinate Bench of this Court, dated 6.9.2013 fully covers the controversy involved in the writ petition and on the same basis, this review petition deserves to be allowed.
5. Now the question that arise for consideration of this Court is whether the subsequent judgment passed by a co-ordinate Bench of the same Court or by a superior Court would be a ground for review of the judgment passed on merits.
6. Before proceeding further, We have considered the case laws on the point and we find that there were different opinion among different High Courts, on the question whether the subsequent contrary judgment by the same court or by a superior Court on the point of law can be treated as an error apparent on the face of the record, for the purpose of review of an earlier judgment. In Lachhmi Narain Balu v. Ghisa Bihari and Anr., MANU/PH/0162/1960 the learned Single Judge of the then Punjab High Court held that the Court cannot review its judgment merely because in a subsequent judgment different view was expressed on the same subject matter. In P.N. Jinabhai v. P.G. Venidas MANU/GJ/0074/1972, the learned Single Judge of the Gujarat High Court considered the question whether the Court can revise its view on the question of pecuniary jurisdiction simply because the same has been rendered doubtful in the light of subsequent decision of the High Court and answered the same in negative. However, a contrary view was expressed in Thadikulangar Pylee's son Pathrose v. Ayyazhiveettil Lakshmi Amma's son Kuttan and Ors MANU/KE/0042/1969. In that case, the learned Single Judge of the Kerala High Court opined that a subsequent decision authoritatively declaring the law can be made basis for reviewing an earlier judgment.
7. The law is settled on the point of the review petitions are covered by order XLVII, Rule 1 of the C.P.C. and Section 114 of the C.P.C. Under order XLVII, Rule 1 C.P.C. a judgment may be reviewed inter alia on the ground if there is a mistake apparent on the face of record.
8. In Aribam Tuleshwar Sharam v. Aribam Pishak Sharam (supra), Hon'ble Apex Court considered the scope of the High Courts' power to review an order passed under Article 226 of the Constitution, referred to an earlier decision in Shivdeo Singh v. State of Punjab MANU/SC/0395/1961 and observed:
"It is true as observed by this Court in Shivdeo Singh v. MANU/SC/0395/1961 State of Punjab, there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power to review which is inherent in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. 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 power which may enable an Appellate Court to correct all matters or errors committed by the Subordinate Court."
9. Keeping in view the difference of opinion of different courts on the point, an explanation was added under Order XLVII, Rule 1 by the amendment of the C.P.C. by the Central Act No. 104 of 1976, which reads as under:-
"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."
10. This explanation was added on the recommendation of the law Commission to put an end to the controversy which had arisen on the point whether a judgment could be reviewed merely on the ground that the decision on a question of law on which the same was founded has been reversed or modified by the subsequent decision of a superior Court. Almost all the High Courts, save for the solitary exception of Kerala High Court, were unanimous in their opinion that the fact that the view of law taken in a judgment has been altered by a subsequent decision of a superior Court in another case could not afford a valid ground for the review of the judgment.
11. That a decision is erroneous in law is certainly no ground for ordering review. If the Court has decided a point and decided it erroneously, the error could not be one apparent on the face of the record or even analogous to it. When, however, the court disposes of a case without adverting to or applying its mind to a provision of law which gives it jurisdiction to act in a particular way, that may amount to an error analogous to one apparent on the face of the record sufficient to bring the case within the purview of Order XLVII, Rule 1, Civil Procedure Code.
In the case of Thungabhadra Industries Ltd. v. Govt. of A.P. MANU/SC/0217/1963 it was held that a review is by no means an appeal in disguise whereby an erroneous decision can be corrected.
In Parsion Devi and Ors. v. Sumitri Devi and Ors MANU/SC/1360/1997, it was held as under:-
"Under Order 47, Rule 1 CPC a judgment may be open to review inter alia if there is a mistake 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 to 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". There is a clear distinction between an erroneous decision and an error apparent on the face of the record. While the first can be corrected by the higher forum, the later only can be corrected by exercise of the review jurisdiction. A review petition has a limited purpose and cannot be allowed to be "an appeal in disguise."
In Haridas Das v. Usha Rani Banik and Ors. MANU/SC/8039/2006, Hon'ble Apex Court made a reference to the explanation added to Order 47 by the Code of Civil Procedure (Amendment) Act, 1976 and held:
"In order to appreciate the scope of a review, Section 114 CPC has to be read, but this section does not even adumbrate the ambit of interference expected of the court since it merely states that it "may make such order thereon as it thinks fit". The parameters are prescribed in Order 47 CPC and for the purpose 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 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. This is amply evident from the Explanation to Rule 1 of Order 47 which states that 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. Where the order in question is appealable the aggrieved party has adequate and efficacious remedy and the court should exercise the power to review its order with the greatest circumspection."
The similar question was considered by the Full Bench of Himachal Pradesh High Court in the case of The Nalagarh Dehati Co-operative Transport Soceity Ltd., Nalagarh Vs. Beli Ram etc. reported in MANU/HP/0001/1981 the question before the Full Bench were as under:-
(i) Where after a judgment is pronounced by a court, the Supreme Court or a larger bench of the same court renders a decision taking a different or contrary view on a point covered by the said judgment; or
(ii) Where the court so pronouncing a judgment has, for whatever reason, missed to take into consideration a decision of the Supreme Court or a High Court taking a different or contrary view on a point covered by the said judgment."
12. After considering the law on the point, the Full Bench of Himachal Pradesh High Court has held in paragraph no. 24 as under:-
"24. The result is that we will answer the first part of the question in the negative, that is, a subsequent decision of the Supreme Court or a larger Bench of the same court rendering a decision taking a different or contrary view on a point covered by the said judgment, does not amount to a mistake or error apparent on the face of the record. The answer to the second part of the question is that failure of the court to take into consideration an existing decision of the Supreme Court taking a different or contrary view on a point covered by its judgment would amount to a mistake or error apparent on the face of the record. But a failure to take into consideration a decision of the High Court would not amount to any mistake or error apparent on the face of the record."
13. Keeping in view the law on this point, this Court is of the considered view that the subsequent decision of a co-ordinate Bench would not be a ground to review the judgment, which is the scope of appeal.
14. Accordingly, the review on the basis of a subsequent judgment of a co-ordinate Bench deciding the controversy otherwise cannot be a ground to allow the review petition.
15. As discussed above, this review sans merits, deserves to be dismissed and is hereby dismissed.
Order Date :-13th December, 2013
Virendra
