TMI Blog2013 (12) TMI 369X X X X Extracts X X X X X X X X Extracts X X X X ..... justitiae to prevent the abuse of its process and such power inheres in every court or tribunal. Following Lily Thomas v. Union of India [2000 (5) TMI 1045 - SUPREME COURT] - When an order is passed by a High Court in breach of the procedure, which a statute (i.e. section 260A) has laid down, such a procedural defect shall remain open to correction by the High Court by taking resort to its plenary power of review or ex debito justitiae to prevent the abuse of its process. Following Distributors (Baroda) P. Ltd. v. Union of India reported in [1985 (7) TMI 1 - SUPREME Court] - The law should be settled permanently as that it should be settled correctly. But there may be circumstances, where public interest demands that the previous decision be reviewed and reconsidered - The doctrine of stare decisis should not deter the court from overruling an earlier decision, if it is satisfied that such decision is manifestly wrong or proceeds upon a mistaken assumption in regard to the existence or continuance of a statutory provision or is contrary to another decision of the court - To rectify it is the compulsion of judicial conscience - Comfort and strength is derived from the wise and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is pending in the Supreme Court and if the review petition is allowed by the High Court, will the appeal, pending in the Supreme Court, become legally incompetent and infructuous? Is there a difference between review of procedure resorted to by a court or tribunal, on the one hand, and a review on merit of an order if the error of law is apparent on the face of the record, on the other? If so, what is the difference between the two? These are some of the prominent questions, which have arisen for determination in these review petitions. Considering the fact that all these five review petitions are based on same factual situation, the questions of law involved are same and, on the request, made by the learned counsel for the parties, all these review petitions have been heard together, we take up all these five review petitions for disposal by this common order. We have accordingly heard Mr. A. K. Bhattacharjee, learned senior counsel, for the review petitioner, in Review Petition No. 108 of 2010, and Mr. R. K. Agarwalla, learned senior counsel, for the review petitioners in Review Petition Nos. 116 of 2010, 117 of 2010, 119 of 2010 and 124 of 2010. We have also heard Mr. K. P. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spect of Central excise refund. However, this hon'ble court, on that day, reserved its view regarding question No. 1, as mentioned in the memorandum of appeal, in respect of transport subsidy and interest subsidy receipts. 10. That on September 16, 2010, instead of listing the matter for order pronouncing formulation of the question framed for admission of the appeal, the matter was instead listed for judgment before the Division Bench of this hon'ble court constituting of hon'ble the Chief Justice and hon'ble Mrs. Justice Anima Hazarika, as item No. 2 of the supplementary cause list I of Part I list for the day. 11. That the hon'ble court on September 16, 2010, was pleased to pronounce judgment/order dated September 16, 2010 (see CIT v. Meghalaya Steels Ltd. [2011] 332 ITR 91 (Gauhati)), finally disposing of the appeal itself. In such judgment/order, this hon'ble court inter alia held that the substantial questions of law, as set forth in the memorandum of appeal, arose for consideration out of the order appealed against passed by the Tribunal and answered the aforesaid question No. 1 in the negative, that is to say, in favour of the respondent and against the review petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... smuch as it is a duty cast on the court to, first, formulate the substantial question or questions of law involved in a given appeal and, thereafter, to invite the parties to have their say in the matter. As there is no bar, points out Mr. Bhattacharjee, in section 260A, to the giving of notice to the respondent, in an appeal, before the appeal is admitted for hearing, a respondent, pursuant to such a notice, shall have the right to satisfy the court that no substantial question of law is involved in the appeal and, hence, the appeal may not be admitted ; or else, the purpose of giving of notice to the respondent, before the appeal is admitted, would be meaningless and otiose. Continuing his above trend of arguments, Mr. Bhattacharjee points out that upon receipt of the notice given to a respondent in an appeal, before the appeal is admitted, the respondent, in order to satisfy the court, that no substantial question of law is involved, may have to make his submission on the merit of the appeal ; but this submission, on the merits, would be, contends Mr. Bhattacharjee, for the limited purpose of showing to the court that the substantial question of law, which the memorandum of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its Mr. Bhattacharjee, that at the stage of hearing of the present appeal on the question of its admission, this court did not even faintly indicate to the parties concerned that the appeal would be disposed of on the basis of the arguments advanced at the stage of admission even though the court had not formulated the substantial question of law, which this court was required to formulate if this court was satisfied to have arisen in the appeal. The error, which has so crept into the procedure of hearing of the appeal, submits Mr. Bhattacharjee, goes to the root of the entire concept of section 260A and the procedure laid down therein and this error, being an error involving procedure for disposal of appeal and this error being an error apparent on the face of the record, needs to be corrected by this court by recalling its judgment and order, dated September 16, 2010, and, then, allowing the parties concerned to have their say on the substantial question or questions of law, which this court may formulate for hearing. In the case at hand, points out Mr. Bhattacharjee, though the questions have been formulated, in the judgment, this formulation of the questions was subsequent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he scheme, which section 260A envisages for the purpose of hearing of an appeal and disposal thereof. What, however, Mr. Pathak submits is that in the case at hand, notice was given to the review petitioners as respondents in the appeal and the learned counsel of the review petitioners appeared before this court and argued the appeal on the merits citing decisions in their favour and that the assessee did not resist the appeal by citing any decisions that the substantial questions of law, suggested in the memorandum of appeal, had not arisen in the appeal for determination. The review petitioners, according to Mr. Pathak, argued the matter on the merits being aware of the issues involved and the rival case. Referring to the case of Patel Narshi Thakershi v. Pradyumansinghji Arjunsinghji reported in [1971] 3 SCC 844, Mr. Pathak submits that unless a statute gives the power to review its order, no court can review any of its orders in exercise of the court's inherent power and, hence, when the Income-tax Act has not provided the High Court with the power of review of an order made under section 260, review of the presently impugned judgment and order is not possible in exercise of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , in fact, submits Mr. Pathak, seek, with the help of the present review petitions, fresh adjudication of the issues on the merits, which the court has answered against the assessees. It is also submitted by Mr. Pathak that the review petitioners could have pointed out, at the time of admission of the appeal, that the substantial questions of law, as suggested in the memorandum of appeal, had not arisen or the review petitioners could have, at least, requested the court to, first, frame the substantial questions of law ; but the review petitioners chose to argue the appeal on the merits and when the judgment has been delivered, they cannot seek review of the judgment by contending that the court did not perform its duty of formulating the substantial questions of law before hearing of the appeal. Notwithstanding his above argumentative submissions, Mr. Pathak further submits, on the basis of assumptions, thus : "Assuming but not admitting that the review petitioners did request the hon'ble court for framing the substantial questions of law first but the hon'ble court disposed of the matter on the merits, that would only mean that the hon'ble court rejected their re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lling the submissions, made on behalf of the opposite party, Mr. Bhattacharjee, learned senior counsel, has submitted that the crux of the matter is that the learned Additional Solicitor General has not been able to show that the substantial questions of law, which have been decided by this court, had been formulated before the appeal was heard on the merits nor has the learned Additional Solicitor General been able to show that this court had made it clear to the parties concerned that the appeal would be disposed of, on the merits, by hearing the appeal at the stage of admission itself. In such a situation, it is clear, submits Mr. Bhattacharjee, that the procedure, which (in the light of the provisions of section 260A), is mandatory and must be followed, had not been, inadvertently, followed by this court due to its misapprehension of the procedure prescribed by section 260A and, hence, the decision, in the appeal, having been rendered without formulating the questions of law, is not sustainable and may, therefore, be reviewed. Appearing on behalf of the review petitioners, in Review Petitions Nos.116 of 2010, 117 of 2010, 119 of 2010 and 124 of 2010, Mr. R. K. Agarwalla, lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ho were respondents in the appeal, is that an order was passed, on August 9, 2010, in the appeal, by this court directing issuance of notice to the respondents, (i.e., the review petitioners), making the notice returnable on September 9, 2010. On the date, so fixed (i.e., on September 9, 2010), the appeal appeared, in the cause list for admission and learned counsel for both the parties to the appeal appeared. It is contended by the review petitioners that both sides were heard on the limited issue as to whether the appeal involve substantial questions of law as had been set forth in the memorandum of appeal and while it was contended, on behalf of the review petitioners, that no substantial question of law had arisen, the learned counsel for the appellants submitted that substantial questions of law, as suggested by the memorandum of appeal, had, indeed, arisen for determination. It is also the case of the review petitioners that on September 9, 2010, when the appeal came up for admission, the learned counsel for both sides were heard, as already indicated above, on the limited issue as to whether the appeal involved the substantial questions of law as suggested by the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment, the appeal was shown to have been admitted ; whereas, as indicated hereinbefore, there was no order admitting the appeal and no order indicating the substantial questions of law on which the appeal stood admitted and was to be heard. Thus, the procedure, prescribed by section 260A, was, inadvertently, not adhered to. It is, therefore, imperative to bear in mind that notwithstanding the argumentative submissions made by the learned Additional Solicitor General, the fact of the matter remains that the review petitioners herein had disputed the fact that any substantial question of law was involved in the appeal. In effect, thus, the review petitioners have clearly averred in the review petitions that the appeal had not been heard, on the merits, for the purpose of its final disposal. No wonder, therefore, that even though Mr. Pathak, learned Additional Solicitor General, has submitted that the assessee did not resist the admission of the appeal, we cannot but conclude, in the absence of any counter-affidavit to the review petitions, that this submission is either factually not correct or, at least, not supported by the materials on record. Our impression that the submissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e before us that no substantial questions of law was formulated by the High Court before the appeal was heard at the stage of admission and disposed of after reserving the appeal for order. Facets of section 260A As the outcome of these review petitions depend substantially on how section 260A is interpreted and considering also the fact that while the review petitioners contend that the provisions, embodied in section 260A, stand breached and, therefore, the impugned order, in question, needs to be reviewed and necessary order needs to be passed thereafter, the respondent contends that the order, in question, is not in breach of the provisions contained in section 260A, it is appropriate that the provisions, contained in section 260A, are carefully analysed and the procedure prescribed therein is noticed and the object of section 260A is correctly understood. We, therefore, reproduce below section 260A, which reads as follows : "260A. Appeal to High Court.-(1) An appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal, if the High Court is satisfied that the case involves a substantial question of law. (2) The Chief Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of law is a sine qua non for the appeal to be admitted for hearing. This position of law will not remain in doubt, when we proceed to minutely examine the provisions embodied in section 260A. Sub-section (2) of section 260A permits the Chief Commissioner or Commissioner as well as an assessee, who may feel aggrieved by the order passed by an Appellate Tribunal, to appeal to the High Court provided that the appeal is filed within one hundred and twenty days from the date on which the order, appealed against, is received by the assessee or the Chief Commissioner or the Commissioner, as the case may be. This apart, as indicated above, the appeal has to be in the form of memorandum of appeal precisely stating therein the substantial question or questions of law involved. Thus, apart from the period of limitation within which an appeal has to be preferred and the form in which the appeal has to be preferred, section 260A necessitates that the memorandum of appeal clearly states the substantial question or questions of law, which, according to the appellant, is, or are, involved in the appeal. Sub-section (3) of section 260A shows that when an appeal is filed, as prescribed by s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent has been given an opportunity by the High Court to satisfy the High Court that no substantial question or questions of law, as contended by the appellant, has or have arisen for determination and it would be thereafter that the High Court would take a decision whether the appeal has or has not given rise to any substantial question of law and if the High Court finds that the substantial question or questions of law has or have arisen, it shall admit the appeal by formulating, for hearing, such substantial question or questions of law, which, according to the High Court, the appeal has given rise to for adjudication and, then, answer the question or questions, so formulated, by affording an opportunity of hearing to the parties concerned on the substantial question or questions of law, which the High Court may have formulated. Logically extended, what the above scheme of hearing of the appeal conveys is that if the High Court, without admitting the appeal, chooses to issue, in a given appeal, notice to the respondent, in the appeal, to have the latter's say in the matter, the parties to the appeal would have the right to address the court. Necessarily, therefore, at the stage ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question or questions of law, which, according to the High Court, has or have arisen for determination. We may hastily add that the proviso to sub-section (4) of section 260A empowers the High Court to formulate any other substantial question of law if it is satisfied that the case involves such a question, though the appellant may not have raised such a substantial question of law. Sub-section (5) of section 260A makes it crystal clear that the appeal can be decided only on the substantial question of law, which has been formulated by the High Court, and not on the basis of the substantial question or questions of law, which the appellant may have mentioned in the memorandum of appeal, and the High Court has to deliver the judgment not on the substantial question or questions of law, which an appellant may have framed, but only on that substantial question of law or those substantial questions of law, which the High Court has already formulated. It clearly follows, therefore, that no appeal can be heard, as already pointed out above, until the time the High Court is satisfied that the appeal involves a substantial question of law for determination and no appeal can be heard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rounds on which its decision is founded. The observations, appearing at paragraph 11, in M. Janardhana Rao (supra), read as under (page 54) : "Various essentials as culled out from the relevant provisions of the Act are as follows : Under section 260A(2)(c) the appeal under section 260A shall be (a) in the form of a memorandum of appeal, and (b) precisely stating therein the substantial question of law involved. Under section 260A(3) when the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question and under section 260A(4) the appeal is to be heard only on the question formulated under the preceding sub-section. It has to be noted that in terms of section 260A(4) the respondent in the appeal is allowed to argue at the time of hearing of the appeal that the case does not involve a substantial question of law as formulated. However, the proviso to section 260A(4) specifically lays down that nothing in section 260A(4) shall be deemed to take away the power of the High Court to hear, for reasons to be recorded, the appeal on any other substantial question of law not formulated by it, in case it is satisfied that the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question of law. In exercise of powers under section 260A, the findings of fact of the Tribunal cannot be disturbed. It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in section 260A must be strictly fulfilled before an appeal can be maintained under section 260A. Such appeal cannot be decided on merely equitable grounds." A three-judge Bench, in M. Janardhana Rao (supra), culled out the test to determine as to what question can be treated as a substantial question of law. Having referred, in this regard, to the case of Sir Chunilal V. Mehta and Sons Ltd. v. Century Spinning and Manufacturing Co. Ltd., AIR 1962 SC 1314, the Supreme Court has held, at paragraph 15, in M. Janardana Rao (supra), as under (page 55) : "An appeal under section 260A can only be in respect of a 'substantial question of law'. The expression 'substantial question of law' has not been defined anywhere in the statute. But it has acquired a definite connotation through various judicial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh Court appears to be correct." Relying heavily on the case of Kannan (Decd.) v. V. S. Pandurangam reported in [2007] 15 SCC 157, Mr. Pathak, learned Additional Solicitor General, has submitted that the mere omission to frame substantial question of law before hearing of the appeal cannot be a reason for interfering with the impugned judgment and order, dated September 16, 2010, unless prejudice is shown to have been caused. In Kannan (Decd.) (supra), the Supreme Court has held that when the parties, in appeal, go to appeal knowing fully well the issue, the order, which is finally passed in the second appeal, cannot be interfered with unless prejudice is shown to have been caused as a result of omission to frame a substantial question of law. While considering the case of Kanan (supra), it may be noted that, while the decision, in Kannan (supra), has been rendered by a two-judge Bench of the Supreme Court, the decision, in M. Janardhana Rao v. Joint CIT [2005] 273 ITR 50 (SC) ; [2005] 2 SCC 324, has been rendered by a three-Judge Bench of the Supreme Court. In M. Janardhana Rao (supra), the Supreme Court has emphasized, at paragraph 13, that it is essential for the High Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rties were, otherwise, well aware of the issues and if the omission to frame the issues has not caused any prejudice to either of the parties. In the face of the fact that no substantial question of law was formulated by the High Court before the appeal was heard for the purpose of disposal and this court had not made it clear to the parties, in the appeal, that the appeal would be disposed of on hearing the parties concerned at the admission stage itself, it logically follows that the decision, rendered in the appeal, was contrary to, and in violation of, the mandatory requirements as regards the procedure to be followed in an appeal under section 260A. Consequently, the impugned judgment and order, dated September 16, 2010, cannot survive. Is an order, made under section 260A, reviweable ? The question, however, is : whether the breach of the provisions of section 260A, in the manner as we have indicated above, necessitates, when the error is brought to our notice, interference with the order, dated September 16, 2010, by way of review or, as contended by the respondentsopposite party, is review of the order, dated September 16, 2010, barred by law, because of statutory pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise its power of review by virtue of the provisions of section 114 or Order 47 of the Code of Civil Procedure if an order, made under section 260A, discloses an apparent error on the face of the record or even when the order has been passed in ignorance of the relevant facts, which could not be placed before the court by either of the parties, what cannot be denied to the High Court is its inherent power to recall/correct such an order. In short, India Carbon Ltd. (supra), thus, recognizes the High Court's power to recall/correct, in exercise of its inherent powers, its order made under section 260A. Having posed to itself, as indicated above, the question as to what would be the dimensions of the inherent power, which a High Court can resort to for recalling or correcting its own order, made under section 260A, the court has pointed out, at paragraph 9, that inherent power inheres, in every court, by virtue of the fact that the primary duty of the court is to do justice between the parties in the given facts of a case and that inherent power has also been understood to be in the nature of a power to do ex debito justitiae. The court, in India Carbon Ltd. (supra), has, however, p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial value in order to be amenable to correction in exercise of the inherent power. Likewise, an order passed in inadvertent departure from a core judicial procedure would also be amendable to a similar correction. Failure of justice cannot be the sole touchtone for its exercise because every judicial order is capable of being so perceived by an aggrieved party. An exhaustive determination of the situations where resort to inherent power will be permissible is neither possible nor desirable. In the last resort it is a discretion that must be left to the court, the exercise of which has to be guided by proper judicial balance and wisdom. However, if an attempt is required to be made to visualize the ambit of the said power, the position could be summed up by conceptualizing a self evident erroneous order passed contrary to a fundamental judicial principle thereby occasioning a failure of justice. Such an order undoubtedly can be corrected in exercise of the inherent power." Before proceeding further, it also needs to be noted that a High Court is a superior court and, as a superior court, it is also a court of record. As a court of record, the High Court is duty bound to keep its r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome-tax Act, it would not be proper to exercise jurisdiction of review in the garb of exercise of inherent power, which, normally, is to be exercised only to correct clerical or similar such mistakes and not entering into the merit of the case. Notwithstanding the above conclusion, which was reached in Bengali Singh (HUF) (supra), what needs to be borne in mind is that the Supreme Court, in Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1, has pointed out that the superior courts stand on a footing different from other courts and their powers cannot be curbed or constricted. In this regard, the following passage of Halsbury's Laws of England was taken note of : "Prima facie, no matter is deemed to be beyond the jurisdiction of a superior court unless it is expressly shown to be so, while nothing is within the jurisdiction of an inferior court, unless it is expressly shown on the face of the proceedings that the particular matter is within the cognizance of the particular court. If the decision of a superior court on a question of its jurisdiction is erroneous, it can, of course, be corrected by appeal or revision as may be permissible under the law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 68. In decisions such as Jayaswal Shipping Co. v. S. S. Leelavati, AIR 1954 Cal 415 ; Kamalakar Mahadev Bhagat v. Scindia Steam Navigation Co. Ltd., AIR 1961 Bom 186 ; Rungta Sons P. Ltd. v. S. S. Edison Mariner [1961-62] CWN 1083 ; National Co. Ltd. v. Asia Mariner [1967-68] 72 CWN 635 ; Mrs. Sahida Ismail v. Petko R. Salvejkov, AIR 1973 Bom 18 and Smt. Reena Padhi v. Jagdhir, AIR 1982 Orissa 57, the High Court s took an unduly restrictive view of the courts' admiralty jurisdiction by limiting it to what was permitted by the Admiralty Court Act, 1861, and the Colonial Courts of Admiralty Act, 1890. This was, in our view, an unjustified abdication of jurisdiction and a self-assumed fetter on competence to render justice." In M. M. Thomas v. State of Kerala reported in [2000] 1 SCC 666, the Supreme Court has pointed out that as a court of record, the High Court, as envisaged by article 215 of the Constitution, must have inherent powers to correct the records and that a court of record envelops all such powers, whose acts and proceedings are to be enrolled in a perpetual memorial and testimony and that a court of record is, undoubtedly, a superior court, which is itself competent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Court possesses all powers in order to correct the errors apparent on the face of the record. While accepting the above proposition, in the light of the scheme of the Act, we are of the view that the said decision is also not helpful to the stand taken by the appellant. Having taken note of various decisions, including M. V. Elisabeth (supra) and M. M. Thomas (supra), particularly, paragraph 17 thereof, the Full Bench of the Patna High Court, in D. N. Singh (supra), speaking through Justice Dipak Misra, C. J. (as his Lordship then was), concluded that it has no scintilla of doubt that the High Court can entertain an application for review arising out of a judgment passed under section 260A. The relevant observations, made by the learned Chief Justice, in D. N. Singh (supra), read (page 361) : "In view of the aforesaid clear pronouncement of law, we have no scintilla of doubt that the High Court can entertain the application for review arising out of a judgment passed under section 260A of the Act". In Grindlays Bank Ltd. v. Central Government Industrial Tribunal reported in [1980] Supp SCC 420, a three-judge Bench of the Supreme Court, at paragraph 13, has pointed that Patel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t themselves make a distinction between procedure and powers of the Tribunal under the Act. While the procedure is left to be devised by the Tribunal to suit carrying out its functions under the Act, the powers of civil court conferred upon it are clearly defined. The question whether a party must be heard before it is proceeded against is one of procedure and not of power in the sense in which the words are used in section 11. The answer to the question is, therefore, to be found in sub-section (1) of section 11 and not in sub-section (3) of section 11. Furthermore, different considerations arise on review. The expression 'review' is used in two distinct senses, namely, (1) a procedural review which is either inherent or implied in a court or tribunal to set aside a palpably erroneous order passed under a misapprehension by it, and (2) a review on the merits when the error sought to be corrected is one of law and is apparent on the face of the record. It is in the latter sense that the court in Patel Narshi Thakershi's case held that no review lies on merits unless a status specifically provides for it. Obviously when a review is sought due to a procedural defect, the inadvertent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... btedly, held that the power of review is not an inherent power and that it must be conferred by law either specifically or by necessary implication. Apart from the fact that the decision in Patel Narshi Thakershi (supra), has been explained in many of the Supreme Court decisions, particularly, in M. M. Thomas (supra), Grinndlays Bank Ltd., etc., it needs to be pointed out that the decision, in Patel Narshi Thakershi (supra), is not a decision, where the question of the High Court's power to review its own order was in question. The question, in Patel Narshi Thakershi (supra), was Government's power to review its own order and since the statute had not provided for any power of review, the court took the view that the power of review cannot be exercised by taking resort to inherent power. The reference, made to the case of Patel Narshi Thakershi (supra), is, therefore, in the present case, wholly misplaced. Though Mr. Pathak, learned Additional Solicitor General, has also referred to the case of Indian National Congress (I) (supra), it needs to be noted that this was, again, a case, where the question raised was whether the Election Commission has the power to review its own ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facie suffers from serious procedural mistake leading to denial of opportunity of effective hearing to a party to the appeal and thereby cause miscarriage of justice. Whether review, in the present case, stands barred, because of pendency of the appeal, presently lying in Supreme Court, at the instance of the respondents ? In order to correctly appreciate the submission, made by Mr. Pathak, that in the light of the law laid down in Kunhayammed (supra), the review petitions stand barred, we may refer to the relevant observations, made by the Supreme Court in Kunhayammed (supra). The relevant observations, appearing at clause (vii) of paragraph 44 in Kunhayammed (supra), reads as under (page 382) : "44. To sum up our conclusions are : . . . (vi) Once leave to appeal has been granted and appellate jurisdiction of Supreme Court has been invoked the order passed in appeal would attract the doctrine of merger ; the order may be of reversal, modification or merely affirmation. (vii) On an appeal having been preferred or a petition seeking leave to appeal having been converted into an appeal before Supreme Court, the jurisdiction of High Court to entertain a review p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave petition is filed, the delay in making the special leave petition is condoned and leave is granted. In such a case, the High Court's jurisdiction to review the decree is not taken away, because the other party has, after review petition has already been filed, preferred an appeal against the same decree and, that too, without informing the Supreme Court. In the case at hand, the special leave petition, which the Revenue has filed, does not, admittedly, make any reference to the leave petition and, in other words, the Revenue has remained completely silent in the special leave petition that a review petition, seeking review of the judgment and order, dated September 16, 2010, is pending in this court. In such circumstances, whether the jurisdiction of this court to review the judgment and order, dated September 16, 2010, can be treated to have been ousted, because, leave having been granted, a regular appeal is born and pending in the Supreme Court ? Supposing A and B are the two parties to a decree. While A files a review petition seeking review of the decree, B prefers a special leave petition and special leave having been granted by the Supreme Court, a regular appeal comes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hall be heard, on the merits, only and only when the court, on being satisfied that appeal has raised substantial questions of law formulates the substantial question or questions of law for hearing of the appeal or, in fact, hears the appeal on the substantial question or questions of law, if any, which, according to the High Court, has/have arisen for being answered in the appeal. In the case at hand, however, this court has committed a mistake in passing the impugned judgment and order, dated September 16, 2010, and there shall be no hesitation, on the part of this court, to acknowledge its mistake as we do and correct the error. While considering the order, dated September 16, 2010, which is under review, it needs to be borne in mind that "to err is human" and the Judges, being human beings, are not infallible. It is, therefore, not impossible that while interpreting law, a court may err. In such circumstances remaining stuck to an incorrect view of law in order to maintain consistency is not a virtue. Observed Jackson. J., while giving his dissenting opinion in Massachusetts v. United States [1948] 333 US 611, as under : "I see no reason why should be consciously wrong t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of similar legislations all over India, merely because it may not be consistent with the view I took in Goodyear. Consistency, for the mere sake of it is no virtue. If precedent is needed to justify my change of mind, I may quote Bhagawati J. (as he then was) in Distributors (Baroda) P. Ltd. v. Union of India, "we have given our most anxious consideration to this question, particularly since one of us, namely, P. N. Bhagawati, J. was a party to the decision (Cloth Traders' case (Cloth Traders (P.) Ltd. v. Addl. CIT [1979] 118 ITR 243 (SC) ; [1979] 3 SCC 538). But having regard to the various considerations to which we shall advert in detail when we examine the arguments advanced on behalf of the parties, we are compelled to reach the conclusion that Cloth Traders' case must be regarded as wrongly decided. The view taken in that case in regard to the construction of section 80M must be held to be erroneous and it must be corrected. To perpetuate an error is no heroism. To rectify it is the compulsion of judicial conscience. In this we derive comfort and strength from the wise and inspiring words of Justice Bronson in Pierce v. Delameter AMY p. 18 : "a judge ought to be wise enough ..... X X X X Extracts X X X X X X X X Extracts X X X X
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