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IN THE HIGH COURT OF GAUHATI (KOHIMA BENCH)
A.B. Pal and T. Nandakumar Singh, JJ.
Chairman and Managing Director, H.P.C. Ltd. and Ors. – Appellants
Vs.
Bendangkokba Longkumar and Anr. – Respondent
C. Review Petition No. 01(K) of 2005
Decided On: 09.06.2005
Review - Judicial Review - Constitution of India, Article 137, Order XL of the Supreme Court Rules, 1966 - The court discussed the power of review under Article 137 of the Constitution of India and Order XL of the Supreme Court Rules, 1966. It emphasized the grounds for entertaining a review application, including discovery of new and important matters or evidence, mistake or error apparent on the face of the record, and any other sufficient reason.
Fact of the Case:
The review application was filed to challenge a judgment and order passed in the absence of the review Petitioners/Appellants. The court found that the notice of the connected writ appeal had not been properly served to the review Petitioners/Appellants, resulting in a miscarriage of justice.
Finding of the Court:
The court held that the judgment and order passed in the absence of the review Petitioners/Appellants constituted a miscarriage of justice, and therefore, the earlier judgment and order were reviewed and recalled.
Issues: The main issue was the failure to properly serve notice of the connected writ appeal to the review Petitioners/Appellants, leading to their absence during the proceedings and the subsequent judgment and order.
Ratio Decidendi: The court emphasized the need to prevent irremediable injustice and miscarriage of justice, and discussed the grounds for entertaining a review application, as provided under Article 137 of the Constitution of India and Order XL of the Supreme Court Rules, 1966.
Final Decision: The review petition was allowed, and the earlier judgment and order were reviewed and recalled. The writ appeal was directed to be posted for hearing on merit before the next available Division Bench.
T.N.K. Singh, J.
1. This is an application for review of the ex-parte judgment and order of this Court dated 24.01.2005 passed in Writ Appeal No. 512 of 1997 (Gauhati) WA No. 1(K) of 1999.
2. It is a settled position in law that no judicial order passed by any superior Court in judicial proceedings can be said to have violated any of the fundamental rights enshrined in Part-III of the Constitution of India. It may, further be noted that the superior Court of Justice do not also fall within the ambit of State or other authorities under Article 12 of the Constitution of India. Ref. Rupa Ashok Hurra v. Ashok Hurra and Anr. (2002) 4 SCC 388 (para 7). This is also a settled position of law that Principles of finality of the judgment of the superior Court should be maintained inasmuch as the Review Petitioners are not to be taken as a routine course. It is also equally well settled that the Court should act ex-debito justitiae as may be necessary in the interest of justice or necessary to do so for the sake of justice by exercising the power of review. As such, the Court, while exercising the power of review within the four corners of power of review, has to strike the balance between the principle of finality of judgment and requirement of the superior Court to act ex-debito justitiae by exercising the power of review. The Apex Court is rendering ex-debito justitiae by exercising the power of review. It will be required to see the source of power of the Supreme Court for exercising the power of review for doing ex-debito justitiae and those of this Court.
3. Article 137 of the Constitution of India confer power on the Apex Court to review any judgment pronounced or order made by it subject to the provisions of any law made by the Parliament or any rules made under Article 147 of the Constitution. Article 137 is quoted hereunder:
137. Review of judgments or orders by the Supreme Court-Subject to the provisions of any law made by Parliament or any rules made under Article 145, the Supreme Court shall have power to review any judgment pronounced or order made by it.
4. Power of Apex Court to review its judgment and order are mentioned in Part-VIII, Order XL of the Supreme Court Rules, 1966 which reads as follows:
1. The Court may review its judgment or order, but no application for review will be entertained in a civil proceeding except on the ground mentioned in Order XLVII, Rule I of the Code, and in a criminal proceeding except on the ground of an error apparent on the face of the record.
2. An application for review shall be by a petition and shall be filed within thirty days from the date of judgment or order sought to be reviewed. It shall set out clearly the ground for review.
3. Unless otherwise ordered by the Court an application for review shall be disposed of by circulation without any oral arguments, but the Petitioner may supplement his petition by additional written arguments. The Court may either dismiss the petition or direct notice to the opposite party. An application for review shall as far as practicable be circulated to the same judge or Bench of Judges that delivered the judgment or order sought to be reviewed.
4. Where on an application for review the Court reverses or modifies its former decision in the case on the ground of mistake of law or fact, the Court, may, if it thinks fit in the interests of justice to do so, direct the refund to the Petitioner of the Court-fee paid on the application in whole or in part, as it may think fit.
5. Where an application for review of any judgment and order has been made and disposed of, no further application for review shall be entertained in the same manner.
5. From the conjoined reading of Article 137 of the Constitution of India and Order XL of the Supreme Court Rules, 1966 it is clear that the Apex Court shall entertain an application for review on the grounds mentioned in Order XLVII, Rule 1 of the Code of Civil Procedure which reads as follows:
1. Any person considering
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