The main legal point established in the judgment is that the Court may grant relief based on an alternative case between the parties, even if it is inconsistent with the pleadings, if substantial justice and the avoidance of injustice are the guiding principles.

The Order of the Court was as follows :

"Justice is a virtue which transcends all barriers. Neither the rules of procedures nor technicalities of law can stand in its way. ... Even the law bends before justice, ... If the Court finds that the order was passed under a mistake....... Mistake is accepted as valid reason to recall an order. Difference lies in the nature of mistake and scope of rectification depending on if it is fact or law. But the root from which the power flows is the anxiety to avoid injustice. , , , If the Court is satisfied of the injustice then it is its constitutional and legal obligation to set it right by recalling its order.

Rectification of an order thus stems from the fundamental principles that justice is above all. It is exercised to remove the error and not for disturbing finality."

The above is the extract from S. Nagaraj v. State of Karnataka, which was referred to by a Division Bench of this Court in Baskaran v. The Commissioner of College Education 1995 (2) CTC 513 while dealing with the important features of a review application. In the same decision the following principles were also laid :

"(1) If the judgment is vitiated by an error apparent on the face of the record in the sense that it is evident on a mere looking at the record without any long-drawn process of reasoning, a review application is maintainable.

(2) If there is a serious irregularity in the proceeding, such as violation of the principles of natural justice, a review application can be entertained.

(3) If a mistake is committed by an erroneous assumption of a fact which allowed to stand would cause miscarriage of justice, then also an application for review can be entertained.

It is not necessary to point out that the above principles are applicable de hors the provisions of Order XLVII, Rule 1 of the Code of Civil Procedure."

2. This review petition is against the judgment in S. A. No. 499 of 2001. This appeal arises out of O.S. No. 5006 of 1996 filed by the first respondent herein, for dissolution of partnership and rendition of accounts. The first review petitioner was the first defendant and the second respondent was the second defendant. The main controversy is only between these persons.

3. Certain facts are not in dispute. The first review petitioner (RP 1 in short) needed funds to purchase certain immovable properties. He approached respondents 1 and 2 and both of them gave him a sum of Rs. 1, 00, 001/-. The purpose for which RP 1 wanted to purchase the immovable property was to do some real estate business and realise profits. The agreement was that he would return this amount together with one fifth share in the profits realised. With the aid of the amounts given by respondents 1 and 2, RP 1 purchased the immovable property.

4. Apprehending that RP 1 will not abide by the understanding between them, the second respondent filed a suit for bare injunction and the first respondent filed the above suit. In this substantive suit, the second respondent, filed a written statement wherein he prayed that the first respondent's suit may be decreed as prayed for, for which he also undertook to pay the necessary Court-fee. It was the case of respondents 1 and 2, that the agreement between the three of them was a partnership agreement. That is why RP 1 agreed to give them a share in the profits.

5. The stand of RP 1 on the other hand, was that the amount was given as a loan and there was no partnership. He admitted the loan and also that he agreed to give a share in the profits, RP 1 in his written statement would state that the relief of recovery of amounts advanced was barred by limitation. The suits filed by both the respondents 1 and 2 were dismissed and the first Appellate Court confirmed this. Therefore, two second appeals were filed before this Court. The second appeal that arose out of the suit for bare injunction was dismissed.

6. In other second appeal, which was for dissolution of partnership, an argument was advance