Janak Raj Jai vs H.D. Deve Gowda And Ors.
1996 Latest Caselaw 952 Del

JUDGMENT

Jaspal Singh, J.

(1) On July 5, 1996 we had dismissed the writ petition filed by D". Janak Raj Jai challenging the appointment of Shri H. Deve Gowda as the Prime Minister of India. The ground urged was that Shri Gowda being not a member of cither House of Parliament, the President could not have made the said appointment.

(2) On July 30, 1996 was moved this petition for review of our order on the ground that Shri Deve Gowda, being a sitting Member of the Legislative Assembly, Karnataka, could not be sworn the oath of office of the Prime Minister of India and that consequently his appointment to the said office was "bad in law, void ab initio and in violation of the provisions of the Constitution of India."

(3) Though Shri Deve Gowda bestrides the story, the learned Attorney General who appeared for him adopted the strategy of distancing him from us, as F. Scott Fitzgerald did in the Great Gatsby, by forwarding the argument that the review petition itself was not maintainable and by making a plea that we should proceed to decide the said objection first. Since Dr. Jai had no objection, the arguments centered around the said objection only.

(4) One thing is certain, and on that we entertain no doubt, that there is nothing in Article 226 of the Constitution of lndia to preclude the High Court from exercising the power of review which, as repeatedly held by the Supreme Court, inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But then the power is neither boundless nor unfettered. It has its own boundaries, well carved and definitive. One of the situations envisaging exercise of this power is where a new and important matter or evidence is discovered but then, this would be subject to the condition that it was not within the knowledge of the person seeking review even after the exercise of due diligence. We do not propose to travel on to the other situations calling for exercise of the power as Dr. Jai had sought refuge under none other than the one enumerated above.

(5) It was argued that the fact that Shri Gowda was a member of the Legislative Assembly of Karnataka came to be known only after the dismissal of the writ petition. The source of information, we are told, was a press report published in The Hindu dated July 6, 1996.

(6) Does this fall within the parameters of the situation delineated above?

(7) Before we proceed to answer the question posed above, let us extract that portion of the review petition which deals with the assertion. This is how the petitioner puts it : "4.That there is a discovery of new fact, which was not available at the time of filing the present petition (sic) in this Hon'ble Court that from a press report published in Hindu dated 6.7.1997, the petitioner came to know that respondent No. 1, Shri Deve Gowda, had been a Member of Legislative Assembly, Karnataka, at the time when an oath of Prime Minister was being administered to him by the President. He had resigned from Chief Ministership, but he continues to be a Member Of the Legislative Assembly, till this day, as is reported in the Hindu. This point could not be pleaded in the main writ petition due to lack of information."

(8) Let us assume that the information relates loan important matter. Let us also accept, for arguments sake, the assertion of the petitioner that he came to know of it only on July 6, 1996, that is, after the disposal of the writ petition. Does it make out a case for review? The answer has to be simply in the negative.

(9) Let us recollect what we said earlier. It was, and we repeat, that the power of review may be exercised where a new and important matter or evidence is discovered which was not within the know ledge of the person seeking review even after the exercise of due diligence. Where, pray, is even the bare assertion of exercise of due diligence ?Where are we told, what to talk of being assured, that the petitioner had in fact exercised reasonable care and diligence? Surely, mere assertion that the information was received subsequent to the disposal of the writ petition cannot itself be taken to show that due diligence could not have been exercised; otherwise there cannot be any case coming within this rule. What is required is strong evidence of diligence and what to talk of such strong evidence, there is not even a bald assertion to that effect. The condition surely is very strict and it is enacted so as to prevent litigants lying on their oars when they ought to be looking for evidence. The petitioner meets his Waterloo on this ground alone.

(10) This, however, is still not the end of the matter.

(11) Admittedly, the petitioner had already filed an appeal in the Supreme Court against our order of dismissal of the writ petition and admittedly again, that appeal is still pending. This being the position should we proceed to entertain this petition for review? This is what the Privy Council says in (Raja) Indrajit Pratap Bahadur Sahi v. Amar Singh and Others Air 1923 Pc 128 : "WHERE an appeal has been preferred, a review is out of question and the party's proper course is to apply to the Appellate Court, which is in possession of the case, to admit the additional evidence either under the general principles of law or under the specific provisions of Rule 27, which lays down that the Appellate Court may for any other substantial cause viz., other than those particularly specified allow such evidence or documents to be produced or witnesses to be examined. Rules of procedure are not made for the purpose of hindering justice."

We need say no more.

(12) And lastly what is sought to be urged is a new ground. It was, we feel, rightly contended by the learned Attorney General that no new ground can be allowed to be urged through the corridors of a review petition. The proposition finds support from the judgment of the Supreme Court in Collector of 24 Parganas v. Lalit Mohan Mullick, .

(13) A word more before the curtain is finally drawn. The petitioner had sought amendment of the main writ petition seeking to incorporate the new ground. Mcrcifully,during arguments, the petitioner did not chose to press it and thus saved himself from yet another frustrating result and us from another legal Takedown Do and resultant dreary fatigue.

(14) For the reasons recorded above, we see no reason to entertain this review petition which accordingly fails and is dismissed.