Delhi High Court

R. P. Luthra vs Union Of India And Anr. on 1 May, 2017

$~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.

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

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

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

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-

argue an appeal that has already been decided. We are therefore of the

opinion that none of the circumstances contemplated under Order XLIVII