APPLICATION OF REVIEW IS MOST RESTRICTED THAN THAT OF AN APPEAL

[Mr. M. GOVINDARAJAN]

Review

The dictionary meaning of the word ‘review’ is ‘the act of looking, offer something again with a view to correction or improvement’.  The review is the creation of a statute.

Section 114 of Code of Civil Procedure (‘Code’ for short) provides for a substantive power of review by a civil court and consequently by the appellate courts subject to such conditions and limitations.  The procedural conditions contained in Order 47 of the Code must be taken into consideration.  Section 114 of the Code although does not prescribe any limitation on the power of the court but such limitations have been provided for in Order 47 of the Code, Rule 1.

Order 47 Rule 1 shows that review of a judgment or an order could be sought-

• from the discovery of new and important matters or evidence which after the exercise of due diligence was not within the knowledge of the applicant;
• such important matter or evidence could not be produced by the applicant at the time when the decree was passed or order made; and
• on account of some mistake or error apparent on the face of the record or any other sufficient reason.

Inherent power?

In ‘PATEL NARSHI THAKERSHI AND ORS. VERSUS SHRI PRADYUMANSINGHJI’ - 1970 (3) TMI 163 - SUPREME COURT, the Supreme Court has held that the power of review is not an inherent power. It must be conferred by law either specifically or by necessary implication.

Review by High Court

In SHIVDEO SINGH VERSUS STATE OF PUNJAB - 1961 (2) TMI 65 - SUPREME COURT there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which inheres 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 powers which may enable an appellate court to correct all manner of errors committed by the subordinate court.

Review not an appeal in disguise

In PARSION DEVI AND OTHERS VERSUS SUMITRI DEVI AND OTHERS - 1997 (10) TMI 369 - SUPREME COURT the Supreme Court observed that 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 of 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’.

Review – not a substitute to view

In LILY THOMAS, ETC. VERSUS UNION OF INDIA & ORS. - 2000 (5) TMI 1045 - SUPREME COURT it is observed and held that the power of review can be exercised for correction of a mistake but not to substitute a view. Such powers can be exercised within the limits of the statute dealing with the exercise of power.

It is beyond any doubt or dispute that the review court does not sit in appeal over its own order. A rehearing of the matter is impermissible in law. It constitutes an exception to the general rule that once a judgment is signed or pronounced, it should not be altered. It is also trite that exercise of inherent jurisdiction is not invoked for reviewing any order.

Patent error

A review cannot be claimed or asked for merely for a fresh hearing or arguments or correction of an erroneous view taken earlier, that is to say, the power of review can be exercised only for correction of a patent error of law or fact which stares in the face without any elaborate argument being needed for establishing it.

In TC. BASAPPA VERSUS T. NAGAPPA - 1954 (5) TMI 21 - SUPREME COURT it was held that such an error is an error which is a patent error and not a mere wrong decision.

In HARI VISHNU KAMATH VERSUS SYED AHMAD ISHAQUE AND OTHERS - 1954 (12) TMI 22 - SUPREME COURT the Supreme Court observed that It is essential that it should be something more than a mere error; it must be one which must be manifest on the face of the record. The real difficulty with reference to this matter, however, is not so much in the statement of the principle as in its application to the facts of a particular case.

In THE STATE OF WEST BENGAL VERSUS KAMAL SENGUPTA AND ANOTHER - 2008 (6) TMI 578 - SUPREME COURT the Supreme Court had an occasion to consider what can be said to be mistake or error apparent on the face of record.   The term ‘mistake or error apparent’ by its very connotation signifies an error which is evident per se from the record of the case and does not require detailed examination, scrutiny and elucidation either of the facts or the legal position. If an error is not self evident and detection thereof requires long debate and process of reasoning, it cannot be treated as an error apparent on the face of the record for the purpose of Order 47 Rule 1 CPC or Section 22(3)(f) of the Act. To put it differently an order or decision or Judgment cannot be corrected merely because it is erroneous in law or on the ground that a different view could have been taken by the court/tribunal on a point of fact or law. In any case, while exercising the power of review, the court/tribunal concerned cannot sit in appeal over its judgment/decision.

Review by Tribunal

In K. AJIT BABU AND OTHERS VERSUS UNION OF INDIA AND OTHERS - 1997 (7) TMI 671 - SUPREME COURT, it was held that even though Order 47 Rule 1 is strictly not applicable to the tribunals, the principles contained therein have to be extended to them, else there would be no limitation on the power of review and there would be no certainty or finality of a decision.

But in ‘SRI GOPABANDHU BISWAL VERSUS KRISHNA CHANDRA MOHANTY & ORS. - 1998 (4) TMI 550 - SUPREME COURT it was held that the power of review granted to the tribunals is similar to the power of a civil court under Order 47 Rule 1.

The principles which can be culled out from the various judgments are-

• The power of the Tribunal to review its order/decision under Section 22(3) (f) of the Act is akin/analogous to the power of a civil court under Section 114 read with Order 47 Rule 1 CPC.

• The Tribunal can review its decision on either of the grounds enumerated in Order 47 Rule 1 and not otherwise.

• The expression “any other sufficient reason” appearing in Order 47 Rule 1 has to be interpreted in the light of other specified grounds.

• An error which is not self evident and which can be discovered by a long process of reasoning, cannot be treated as an error apparent on the face of record justifying exercise of power under Section 22(3)(f).

• An erroneous order/decision cannot be corrected in the guise of exercise of power of review.

• A decision/order cannot be reviewed under Section 22(3) (f) on the basis of subsequent decision/judgment of a coordinate or larger Bench of the tribunal or of a superior court.

• While considering an application for review, the tribunal must confine its adjudication with reference to material which was available at the time of initial decision. The happening of some subsequent event or development cannot be taken note of for declaring the initial order/decision as vitiated by an error apparent.

• Mere discovery of new or important matter or evidence is not sufficient ground for review. The party seeking review has also to show that such matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the court/tribunal earlier.

Review is more restricted

In SHRI RAM SAHU (DEAD) THROUGH LRS & ORS. VERSUS VINOD KUMAR RAWAT & ORS. - 2020 (11) TMI 555 - SUPREME COURT the Supreme Court held that  Section 114 CPC is the substantive provision for review when a person considering himself aggrieved either by a decree or by an order of Court from which appeal is allowed but no appeal is preferred or where there is no provision for appeal against an order and decree, may apply for review of the decree or order as the case may be in the Court, which may order or pass the decree. From the bare reading of Section 114 CPC, it appears that the said substantive power of review under Section 114 CPC has not laid down any condition as the condition precedent in exercise of power of review nor the said Section imposed any prohibition on the Court for exercising its power to review its decision. However, an order can be reviewed by a Court only on the prescribed grounds mentioned in Order 47 Rule 1 CPC, which has been elaborately discussed hereinabove. An application for review is more restricted than that of an appeal and the Court of review has limited jurisdiction as to the definite limit mentioned in Order 47 Rule 1 CPC itself. The powers of review cannot be exercised as an inherent power nor can an appellate power can be exercised in the guise of power of review.