This court dismissed a review petition filed by different counsel raising arguments previously given up, holding it violated CPC principles against re-hearing and lacked bona fides, awarding costs of Rs. 5 lacs.
Petition dismissed with costs quantified at Rs. 5 lacs payable within four weeks.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION
REVIEW PETITION (L) NO. 5 OF 2017 IN WRIT PETITION NO. 1355 OF 2014
Radhakrishna Co-operative } Housing Society Limited } and Anr. } Petitioners versus State of Maharashtra } and Ors. } Respondents
Mr. Prateek Seksaria with Ms. Kausar Banatwala, Ms. Flora Jain i/b. Mr. Tushar Goradia for the petitioners.
Ms. Aparna Murlidharan i/b. Mr. P. G. Lad for respondent nos. 2 to 4.
Mr. H. C. Pimple for respondent no. 5.
Mr. Raju Morey with Mr. Sagar Rane for respondent no. 6.
CORAM :- S. C. DHARMADHIKARI & M. S. SONAK, JJ. DATED :- OCTOBER 5, 2017
P.C. :-
of all concerned that routinely, review petitions are filed in this
court, after the orders under review are unsuccessfully
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challenged before the higher court but liberty is sought to present a review petition. The higher court, with greatest respect, is informed that certain points or arguments, allegedly crucial to the case and going to the root of the matter were either not canvassed or canvassed but not considered. Such an argument is raised before the Hon'ble Supreme Court of India at the instance of the aggrieved parties by a counsel instructed by an advocate who had no opportunity to argue the matter before this court. After the Hon'ble Supreme Court is persuaded to grant liberty to file a review petition, invariably such review petitions are filed and argued by the parties through different set of advocates and who were not on record or engaged to argue when the orders under review are passed. This set of advocates present the review petition and seek to re-argue the matter by relying on the liberty granted by the Hon'ble Supreme Court of India. That argument, according to the counsel and in terms of the Hon'ble Supreme Court's liberty, permits us to go behind the order under review as if we are exercising appellate or revisional jurisdiction. If something that allegedly goes to the root of the case has not been considered, but which would entail a detailed inquiry and virtual re-hearing of the matter, is a permissible exercise is the submission and essentially based on the Hon'ble Supreme Court's order. With respect, it is urged that such order would then define
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the ambit of our power of review. This only means that we must disregard the legal parameters of review jurisdiction and its limited nature. The statutory scheme as far as review is concerned is then overridden and enables the parties to take chances again and again. Surely, that is not the purpose of review jurisdiction.
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property owners cases challenging the constitutional validity of Chapter VIIIA of the Maharashtra Housing and Area Development Act, 1976, the said property could not be conveyed in favour of petitioner no. 1 and it is impossible for the tenants/occupants, in view of the dangerous condition of the building to reside there. It is in these circumstances that the further pleading in this para is that though the petitioner moved the acquisition proposal, but in view of the dispute with the landlord and the larger challenge, namely, to the constitutional validity of Chapter VIIIA pending in the Hon'ble Supreme Court, no further steps could be taken. It is stated in this paragraph that at present the landlord and the petitioner have arrived at an amicable settlement, whereby the property can be redeveloped and the proposal for acquisition made in the year 1990 can be recalled and cancelled. Paras 11 and 12 of the writ petition read as under:-
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(Underlining is ours)
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should be considered by this court. They be allowed to reconstruct the building or redevelop the property so that those presently housed in a dilapidated structure, which is highly unsafe would get a decent accommodation. Such an argument was specifically dealt with and rejected.
“UPON hearing the counsel the Court made the following
ORDER
Delay condoned.
It is submitted by Mr. Chander Uday Singh, learned senior counsel being assisted by Mr. Tushar Goradia and Mr. Pratap Venugopal, learned counsel for the petitioners that the High Court has misconstrued the prayer made by the petitioner, inasmuch as the prayer of the petitioner No.1, Radhakrishna Co-operative Housing Society Limited, was to permit it to withdraw from acquisition and get the
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land developed by the land owner, the petitioner No. 2 herein. Learned senior counsel would submit that the High Court in certain judgments regard being had to the facts and circumstances has permitted withdrawal from acquisition. It is contended that once the withdrawal is permitted, the land owner can develop the land for the benefits of the members of the Society as agreed to between the Society and the land owner.
At this juncture, we are obligated to say that the aforesaid submissions have not been canvassed before the High Court and, therefore, the High Court has not dealt with the same. However, keeping in view the submissions put forth and the benefit of the members of the Society being highlighted, we permit the petitioners to file an application for review before the High Court within four weeks hence. If the application for review is filed within the said period, the High Court shall dispose of the same on its own merits keeping in view the submissions recorded herein-above and other submissions to be put forth in the review petition without throwing it on the ground of limitation at the threshold. In case the review petition is not entertained by the High Court and, eventually, dismissed, liberty is granted to the petitioner to approach this court in the special leave petition assailing the principal order (the impugned order) as well as the order passed in review.
With the aforesaid observation, the special leave petition stands disposed of.”
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“Any person considering himself aggrieved-
1 AIR 2013 SC 3301
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a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,
b) by a decree or order from which no appeal is allowed, or
c) by a decision on a reference from a Court of Small Causes,
and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or cold not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the court which passed the decree or made the order”
“1. Mr. Daphtary, learned counsel for the petitioners, has argued at length all the points which were urged at the earlier stage when we refused special leave thus making out that a review proceeding virtually amounts to a re-hearing. May be, we were not right in refusing special leave in the first round; but, once an order has been passed by this Court, a review thereof must be subject to the rules of the game and cannot be lightly entertained. A review of a judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility. A mere repetition, through different counsel, of old and overruled arguments, a second trip over ineffectually covered ground or minor mistakes of inconsequential import are obviously insufficient. The very strict need for
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compliance with these factors is the rationale behind the insistence of counsel's certificate which should not be a routine affair or a habitual step. It is neither fairness to the Court which decided nor awareness of the precious public time lost what with a huge backlog of dockets waiting in the queue for disposal, for counsel to issue easy certificates for entertainment of review and fight over again the same battle which has been fought and lost. The Bench and the Bar, we are sure, are jointly concerned in the conservation of judicial time for maximum use. We regret to say that this case is typical of the unfortunate but frequent phenomenon of repeat performance with the review label as passport. Nothing which we did not hear then has been heard now, except a couple of rulings on points earlier put forward. May be, as counsel now urges and then pressed, our order refusing special leave was capable of a different course. The present stage is not a virgin ground but review of an earlier order which has the normal feature of finality.”
(Underlining is ours)
“8. It is well-settled that a party is not entitled to seek a review of a judgment delivered by this Court merely for the purpose of a rehearing and a fresh decision of the case. The normal principle is that a judgment pronounced by the Court is final, and departure from that principle is justified only when circumstances of a substantial and compelling character make it necessary to do so: Sajjan Singh v. State of Rajasthan: (AIR 1965 SC 845). For instance, if the attention of the Court is not drawn to a material statutory provision during the original hearing, the Court will review its judgment: G. L. Gupta v. D. N. Mehta (AIR 1971 SC 2162). The Court may also reopen its judgment if a manifest wrong has been done and it is necessary to pass an order to do full and effective justice: O. N. Mohindroo v. Distt Judge, Delhi (AIR 1971 Sc 107). Power to review its judgment has been conferred on the Supreme Court by Article 137 of the Constitution, and that power is subject to the provisions of any law made by Parliament or the rules made under Article 145. In a civil proceeding, an
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application for review is entertained only on a ground mentioned in Order 47, Rule 1 of the Code of Civil Procedure, and in a criminal proceeding on the ground of an error apparent on the face of the record (Order 40, Rule 1, Supreme Court Rules, 1966). But whatever the nature of the proceedings, it is beyond dispute that a review proceeding cannot be equated with the original hearing of the case, and the finality of the judgment delivered by the Court will not be reconsidered except “where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility” Sow; Chandra Kante v. Sheikh Habib (AIR 1975 SC 1500)
“12. A review is not a routine procedure. Here we resolved to hear Shri Kapil at length to remove any feeling that the party has been hurt without being heard. But we cannot review our earlier order unless satisfied that material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice. In Sow. Chandra Kante v. Sheikh Habib (AIR 1975 SC 1500) this Court observed:
“A review of a judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility.... The present
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stage is not a virgin ground but review of an earlier order which has the normal feature of finality.”
“7. It is well settled that review proceedings have to be strictly confined to the ambit and scope of Order 47, Rule 1, CPC. In Thungabhadra Industries Ltd. v. Govt. of A. P. (AIR 1964 SC 1372) this Court opined:
“What, however, we are nor 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 ours)
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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”.
“54. Article 137 empowers this Court to review its judgments subject to the provisions of any law made by Parliament or any rules made under Article 145 of the constitution. The Supreme Court Rules made in exercise of the powers under Article 145 of the Constitution prescribe that in civil cases, review lies on any of the grounds specified in Order 47, Rule 1 of the Code of Civil Procedure which provides:
(1) Any person considering himself aggrieved-
(a) by a degree or order from which an appeal is allowed, but from which no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed, or
(c) by a decision on a reference from a Court of Small Causes,
and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time, when the decree was passed or order made, or on account of somemistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the court which passed the decree or made the order.”
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Under Order XL, Rule 1 of the Supreme Court Rules no review lies except on the ground of error apparent on the face of the record in criminal cases. Order XL, Rule 5 of the Supreme Court Rules provides that after an application for review has been disposed of no further application shall be entertained in the same manner.
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interpreting Section 494 amounted to violation of some of the fundamental rights. No other sufficient cause has been shown for reviewing the judgment. The words “any other sufficient reason appearing in Order 47, Rule 1, CPC” must mean “a reason sufficient on grounds at least analogous to those specified in the rule” as was held in Chhajju Ram v. Neki, AIR 1922 PC 112 and approved by this Court in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius, AIR 1954 SC 526. Error apparent on the face of the proceedings is an error which is based on clear ignorance or disregard of the provisions of law. In T. C. Basappa v. T. Nagappa, AIR 1954 SC 440 this Court held that such error is an error which is a patent error and not a mere wrong decision. In Hari Vishnu Kamath v. Ahmad Ishaque, AIR 1955 SC 233, it was held:
“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. When does an error cease to be mere error, and become an error apparent on the face of the record? Learned counsel on either side were unable to suggest any clear-cut rule by which the boundary between the two classes of errors could be demarcated.
Mr. Pathak for the first respondent contended on the strength of certain observations of Chagla, C. J. in – 'Batuk K. Vyas v. Surat Borough Municipality, AIR 1953 Bom 133' that no error could be said to be apparent on the face of the record if it was not selfevident and if it required an examination or argument to establish it. This test might afford a satisfactory basis for decision in the majority of cases. But there must be cases in which even this test might break down, because judicial opinion also differ, and an error that might be considered by one Judge as selfevident might not be so considered by another. The fact is that what is an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case.”
Therefore, it can safely be held that the petitioners have not made out any case within the meaning of
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Article 137 read with Order XL of the Supreme Court Rules and Order 47, Rule 1, CPC for reviewing the judgment in Sarla Mudgal case. The petition is misconceived and bereft of any substance.”
“11. So far as the grievance of the applicant on merits is concerned, the learned counsel for the opponent is right in submitting that virtually the applicant seeks the same relief which had been sought at the time of arguing the main matter and had been negatived. Once such a prayer had been refused, no review petition would lie which would convert rehearing of the original matter. It is settled law that the power of review cannot be confused with appellate power which enables a superior court to correct all errors committed by a subordinate court. It is not rehearing of an original matter. A repetition of old and overruled argument is not enough to reopen concluded adjudications. The power of review can be exercised with extreme care, caution and circumspection and only in exceptional cases.
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Summary of the Principles:
(A) When the review will be maintainable:-
(i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him;
(ii) Mistake or error apparent on the face of the record;
(iii) Any other sufficient reason.
The words “any other sufficient reason” has been interpreted in Chhajju Ram v. Neki, AIR 1922 PC 112 and approved by this Court in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius & Ors., (1955) 1 SCR 520: (AIR 1954 SC 526), to mean “a reason sufficient on grounds at least analogous to those specified in the rule”. The same principles have been reiterated in Union of India v. Sandur Manganese & Iron Ores Ltd. & Ors., JT 2013 (8) SC 275 : (2013 AIR SCW 2905).
(i) A repetition of old and overruled argument is not enough to reopen concluded adjudications.
(ii) Minor mistakes of inconsequential import.
(iii) Review proceedings cannot be equated with the original hearing of the case.
(iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice.
(v) A review is by no means an appeal in disguise whereby an erroneous decision is re-heard and corrected but lies only for patent error.
(vi) The mere possibility of two views on the subject cannot be a ground for review.
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(vii) The error apparent on the face of the record should not be an error which has to be fished out and searched.
(viii) The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition.
(ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived.”
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unsafe condition of the structure/building was put in issue in the original writ petition purely to gain sympathy from this court. The very purpose of the writ petition was to take another chance or, to put it differently, initiate a second round to wriggle out of the acquisition of the property. Therefore, advisedly, the counsel arguing the matter at the initial stage and when the order under review was passed, did not base his arguments on the pleadings, which we have reproduced above. When no argument was raised based on such pleadings and advisedly and purposely, though the pleadings were on record, now, through different advocates on record and distinct set of counsel, the petitioners are seeking to get over a binding order of this court. This is a third round and in the garb of a review, a re-hearing of the case is sought. That is why we have deprecated the practice and routinely adopted in this court of litigants filing review petitions not through the same advocates and counsel, who were engaged when the orders under review are passed. A different set of advocates/counsel is engaged and the same contentions and submissions, which were either not raised, given up or negatived earlier, are sought to be re-introduced by taking advantage of the liberty granted by the Hon'ble Supreme Court of India. Should we, therefore, encourage this trend, which destroys long-standing, healthy practices and traditions of this court. The professionals and litigants may not
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feel anything about the rich heritage and healthy practices and traditions of this court, but surely we cannot abandon or ignore them. More so, when they are deeprooted and have stood the test of time.
(M.S.SONAK, J.) (S.C.DHARMADHIKARI, J.)
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1 issue framed by the court
Whether a review petition filed through different counsel raising arguments previously given up or not canvassed amounts to a re-hearing in disguise
Colour shows how this judgement treated each authority
Kamlesh Verma vs. Mayawati and Ors.Explained¶55
1 AIR 2013 SC 3301 · Who else cites this
Sow Chandra Kante & Anr. v. Sheikh HabbibApplied¶57
(1975) 1 SCC 674 : (AIR 1975 SC 1500) · Who else cites this
M/s. Northern India Caterers (India) Ltd. v. Lt. Governor of DelhiReferred¶58
(1980) 2 SCC 167: (AIR 1980 SC 674) · Who else cites this
Col. Avtar Singh Sekhon v. Union of India & Ors.Referred¶59
1980 (Supp) SCC 562: (AIR 1980 SC 2041) · Who else cites this
Parsion Devi & Ors. v. Sumitri Devi & Ors.Referred¶60
(1997) 8 SCC 715 · Who else cites this
Lily Thomas & Ors. v. Union of India & Ors.Referred¶61
(2000) 6 SCC 224: (AIR 2000 SC 1650) · Who else cites this
Sarla Mudgal caseReferred¶62
Sarla Mudgal case, (1995) 3 SCC 635 : (AIR 1995 SC 1531) · Who else cites this
Jain Studios Ltd. v. Shin Satellite Public Co. Ltd.Applied¶63
(2006) 5 SCC 501 : (AIR 2006 SC 2686) · Who else cites this
3 provisions across 2 enactments
Radhakrishna Co-operative Housing Society Limited and Anr.
State of Maharashtra and Ors.
S. C. Dharmadhikari
M. S. Sonak
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
