Shri Kishor R. Madan vs Shri Ramesh A. Phatnani ...
2003 Latest Caselaw 936 Bom

JUDGMENT

R.M.S. Khandeparkar, J.

1. Heard the learned Advocates for the parties. Perused the records.

2. Since the common question of law and facts arise in both the civil applications, they were heard together and are being disposed of by this common order.

3. These are the civil applications for condonation of delay of 192 days in filing the review petitions in relation to the judgment and order dated 14th August, 2002 passed in Civil Revision Application Nos. 1131 of 2002 and 1133 of 2002. By the judgment and order dated 14th August, 2002, both the revision applications were allowed and the order passed by the trial Court rejecting the applications for amendment to the written statement were set aside and the parties were allowed to amend the written statement.

4. The ground for condonation of delay is that the decisions of this Court, one in Rajabhau S/o. Mahadeo Rao Rahate v. Dinakar Shantaram Ingale, reported in 2002 (3) Mah.L.J. 921 and another in Zahida Nizamuddin Jala and Ors. v. Abidali Jalferali Syyed and Ors., reported in 2002 (4) Mah.L.J. 913, came to the knowledge of the learned advocate for the applications only towards the end of February, 2003 and thereafter, the present review petitions are filed.

5. It is the contention of the applicants that in view of the said decisions, the amended provision of Section 115 of the Code of Civil Procedure was applicable to the pending proceedings and since the civil revision applications Nos. 1131 and 1133 of 2002 were pending on the day on which the said provisions of law came into force, applying the law laid down in Rajabhau S/o. Mahadeo Rao Rahate as well as Zahida Nizamuddin Jala's case (supra), the said civil revision applications were liable to be rejected.

6. It is well settled that the review proceedings cannot be equated with the original hearing of the case or an appeal. The finality to the order passed by the Court cannot be revoked and the matter cannot be reconsidered except when glaring omissions or patent mistake or grave error has crept up in the order delivered earlier. In Sow. Chandra Kanta and Anr. v. Sheik Habib, , the Apex Court had ruled that a review is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility. It is specifically held that "A mere repetition through different counsel of old and overruled arguments, a second trip over ineffectually covered ground or minor mistakes of inconsequential import are obviously insufficient. The very strict need for compliance with these factors is the rationale behind the insistence of counsel's certificate which should not be a routine affair or a habitual step." Merely because the order sought to be reviewed was overruled in another case subsequently, is no ground to review the decision and the law in that regard is well settled by the decision of the Apex Court in Shanti Devi v. State of Haryana, .

7. Undisputedly, Civil Revision Application Nos. 1131 and 1133 of 2002 were disposed of on merits after considering the rival contentions of the parties and the said decisions were delivered prior to the decision in Rajabhau's and Zahida's cases (supra). Merely because, subsequent to the disposal of the said revision applications, the law on the point of applicability of the amended Section 115 of the Code of Civil Procedure to the pending proceedings having been clarified, that cannot be the justification for review of the judgment and order dated 14th August, 2002. Likewise, merely because the learned Advocate for the petitioner came to know about the said decisions at the end of February, 2003, the same also cannot be the justification for condonation of delay of 192 days in filing the review applications.

8. Attention was drawn to the Apex Court's decision in Prem Bakshi and Ors. v. Dharam Dev and Ors., , wherein it has been held that "After all amendments of the pleadings would not amount to decisions on the issue involved. They only would serve advance notice to the other side as the plea, which a party might take up. Hence we cannot envisage a situation where amendment of pleadings, whatever be the nature of such amendment would even remotely cause failure of justice or irreparable injury to any party." The decision relied upon no way relates to the power of review. Besides, needless to say that any ruling or observation in a decision passed either by the Apex Court or by the High Court cannot be read disjunctively and ignoring the facts of the case as well as the points for consideration which arise in the facts of a particular case on the point in issue in such a case. The law in this regard is well settled and one can safely rely upon the decision in the matter of Union of India v. Dhanwanti Devi and Ors., . Being so, the ruling of the Apex Court in Prem Bakshi's case (supra) that all amendments of the pleadings would not amount to decision on the issue involved cannot be read ignoring the points for consideration which arose in the facts of the case before the Apex Court and the contentions which were advanced in relation to the said points. The Apex Court therein was dealing with a case wherein the application for amendment of the plaint was allowed by the trial Court whereas the same order of the trial Court was set aside by the High Court in exercise of powers under Section 115 of the Code of Civil Procedure. In the case in hand before this Court, the trial Court had rejected the application for amendment of the written statement. The said order was set aside and the application for amendment was allowed by this Court by its judgment and order dated 14th August, 2002. After considering the merits of the case, it was found that the rejection of the application for amendment was illegal and in improper exercise of jurisdiction.

9. Once, the matter is disposed of on merits, merely because, subsequent to such disposal of the matter, it is revealed that the proceedings wherein the matter is disposed of were not maintainable on account of amendment brought about to the procedural law, it cannot be said that such disposal of the matter would be illegal or without jurisdiction. It is not a case of absence of jurisdiction to the Court. It cannot be said that this Court had no revisional jurisdiction or that this Court was forbidden from exercising its supervisory jurisdiction and the power of superintendence. Such a jurisdiction always exists with the High Court. Section 115 of the Code of Civil Procedure merely regulates exercise of revisional powers and prescribes specific instances for exercise thereof. However, even in the absence of such provision of law, the supervisory and superintendence powers under Article 227 of the constitution of India vested in the High Court are not curtailed or encumbered in any manner. The said power is administrative as well as judicial. Being so, once the High Court finds an order of a subordinate Court to be illegal or bad in law, it can set aside the same.

10. Undoubtedly, subsequent to the decision, which is sought to be reviewed, the law on the point of applicability of amended provision of law in Section 115 to the pending proceedings was clarified and accordingly it was held that the amended provision would apply to the pending revision applications also. However, merely because decision sought to be reviewed was passed after the date of enforcement of amended provision of law but before the said clarification, that itself would not be a justification for review of the said decision. It is always to be borne in mind that the Court exists to impart justice. No action and decision of a Court can be either to encourage illegality or to perpetuate the illegal action on the part of any authority including the judicial authority. Being so, once the High Court had found that order of the subordinate court to be illegal, and such illegality could have been set aside even in exercise of the powers under Article 227 of the Constitution of India, merely because, the order was passed in the proceedings initiated under Section 115 of the Code of Civil Procedure, that itself would not be justification for review of such order.

11. Powers to review cannot be exercised to allow a party to reap the benefit of an illegal order. It is apparent that the review of order would result in revival of an illegal order of refusal of amendment to the Written Statement, which in turn would result in irreparable loss to the Defendant. The justice cannot be allowed to be bulldozed by mere procedural technicalities.

12. In the absence of any error apparent on the face of record being disclosed in the said judgment, merely because subsequent to disposal of the revision applications on merits, that the law on the point of applicability of the amended Section 115 of the Code of Civil Procedure to the pending proceedings was clarified, that itself cannot be a justification for review of the said judgment. It is also to be noted that the decision in Rajabhau Rahte's case was published in September issue of Maharashtra Journal in the year 2002. Being so, the applicants have neither good case on merits for review, nor there is disclosure of sufficient cause for condonation of delay of 192 days in filing the review applications. Hence, the present civil applications are rejected. Needless to say that in view of rejection of the present civil applications for condonation of delay of 192 days in filing the review applications, the review applications also stand dismissed.

13. Parties to act on an ordinary copy of this order duly authenticated by the Associate /P.S. of this Court as a true copy.