Lodhi Hotel Employees Welfare ... vs Union Of India (Uoi) And Ors.
2005 Latest Caselaw 1120 Del

JUDGMENT

Vikramajit Sen, J.

C.M. 8883/2005

1. Allowed, subject to all just exceptions.

RP 191/2005 in W.P. (C) No. 1561-64 of 2005.

2. By means of this application filed under Order XLVII Rule 1 of the CPC a Review of the Order dated 31.1.2005 has been prayed for. An Appeal was filed assailing this Order which was disposed of by the Division Bench in the following terms:

"Learned counsel for the appellants seeks permission to withdraw these appeal and the application for condensation of delay with a view to pursue appropriate remedy. Permission granted.

Dismissed as withdrawn."

3. The question of maintainability of an application for Review filed in a situation where an Appeal had also been preferred came up for consideration in Ashok Kumar Monga v. UCO Bank reported as 2003 VIII AD (DELHI) 493. In that case it was held as under:

"3.The observations in (Raja) Indrajit Pratap Bahadur Sahi v. Amar Singh and Ors AIR 1923 PC 128, which have stood the test of eighty long years, apply in full force. It was observed that where an appeal has been preferred a review is out of question. In Dev Krishna and Anr. v. Dhani Ram Saligram, , a Division Bench of that Court had observed that a Court has jurisdiction to decide wrongly and a review against such a decision is not in order. Once arguments have been addressed in a particular issue and a decision has been rendered, recourse to a Review is wholly unjustified. In Smt. Meer Bhanja v. Smt. Nirmala Kumari Choudhury, , it has been observed by the Apex Court that the Review Court should not act as Appellate Court and the error apparent on the face of the record contemplates that genre of errors which strikes one on a mere looking at the record and would not require any long-drawn process of reasoning on points where there may conceivably be two opinion. Similar views have been expressed in Parsion Devi and Ors. v. Sumitri Devi and Ors., . It was held that a mistake or error apparent on the face of the record is one which is self-evident and does not require a process of reasoning; distinct from an erroneous decision. A rehearing in the matter for detecting an error in the earlier decision and then correcting it does not fall within the ambit of review jurisdiction.

4. There is infinite intrinsic wisdom in the prevailing provisions of the law pertaining to the maintainability of a Review even from the standpoint of jural time management. The attention and time of the Appellate Court would be dissipated if after haring arguments the matter is remanded for fresh decision. The doctrine of merger of jurisdictions enables and expects the First Appellate Court to decide all matters which naturally and logically arise in the lis.

5. The provisions pertaining to Review also specify that a Review is maintainable and permissible even in respect of appealable orders provided no appeal has been filed. If parties are permitted to press applications of the present nature, it would amount to forum shopping, which is abhorrent as far as procedural law is concerned."

4. In Delhi Administration v. Gurdip Singh Uban, the Hon'ble Supreme Court commenced its judgment by reiterating the words of Krishan Iyer, J. to the effect that 'a plea for review, unless the first judicial view is manifestly distorted, is like asking for the moon'. The quoted words were written in the context of a judgment of the Apex Court from which an appeal is not possible. A fortiori where an Appeal has been provided for a Review must be dealt with in a summary fashion. The can be no gainsaying that its scope is very limited when compared with that of an appeal. In the Uban case (supra) it has again been observed that there is 'a real distinction between a mere erroneous decision and a decision which could be character sed as vitiated by 'error apparent' and that a 'review' was by no means an 'Gappeal' in disguise.' Furthermore, Section 114 and Order XLVII Rule 1(2) of the CPC restricts entertaining of a review largely to situations where an appeal has not been filed. Regretfully, the fact that no such embargo has been placed on entertainment of appeals, is overlooked. This is because an appeal is always a more comprehensive and all-encompassing relief, since challenges available in review are also available in review, but not vice versa. Once an Appeal is rejected there will be no likelihood of succeeding in a Review.

5. The Review Application has been filed on 30.6.2005 and refiled twice thereafter well beyond the stipulated period of thirty days. An application under Section 5 of the Limitation Act does not accompany it. The application is patently barred by limitation which is fatal for its consideration. The Orders of the Division Bench do not enlarge time or condone delay in the filing of the Review. This is quite obvious because the Civil Procedure Code states that a Review is maintainable only if a Appeal has not been preferred. Hon'ble Mukul Mudgal, J. has also adopted a similar approach in dismissing the Review Application filed in W.P. (C) 937/2000 titled M/s. Palika Place Traders Association and Ors v. N.D.M.C. decided on August 3, 2005. His ordship has also taken note of similar dismissal orders passed by the another Single Judge in W.P. (C) 5224/2002.

6. A perusal of the Review application discloses that the grounds on which the Order under Review is assailed is that 'this Hon'ble Court while rejecting a prayer (a) and (b) has not appreciated the facts of the case as also the principle of estoppel applies on both parties'. Thereafter there is a mention of passing of order in other writ petitions overlooking the intent behind the 1976 amendments to Order XLVII Rule 1(2) viz. the Explanation inserted therein. It has also been stated that 'the Hon'ble Court has not appreciated the facts, that the employees are demanding for enforcement of their fundamental rights'. Various other grounds of attack have also been mentioned. What is of legal significance is that there is no averment to the effect that the Review is predicated on the discovery of new and important grounds or evidence which after the exercise of due diligence could not be produced, or on account of some mistake or error apparent on the face of the record. The Review Application is without merit and is dismissed.

7. I refrain from imposing costs against the applicants.