2021 Supreme(Mad) 2282

IN THE HIGH COURT OF MADRAS (MADURAI BENCH)
Sanjib Banerjee, M.M. Sundresh, R. Subramanian, JJ.
The District Collector, Collectorate Office and Ors. - Appellants
Vs.
N. Udayappan and Ors. - Respondent
W.A. (MD) Nos. 281, 331 of 2019, CMP (MD) Nos. 2297 and 2622 of 2019
Decided On : 17-03-2021

An appeal would lie against an order passed in a review of the order under Article 226 of the Constitution, even if the original order is retained, once the review petition is entertained and the additional material or grounds that are referred to or urged are considered or a further consideration on merits is evident from the order.

Headnote:

REVIEW - MAINTAINABILITY OF APPEAL - ORDER OF REVIEW - SCOPE AND AMBIT - DEEMED MERGER OF ORDER PASSED IN WRIT PETITION - REVIEW MAINTAINABLE IN CASE APPEAL DISMISSED - REVIEW OF JUDGMENT AKIN TO REVIEW UNDER CPC - DECISION RENDERED IN REVIEW ON NEW ISSUE APPEALABLE - PRINCIPLE OF RES JUDICATA - ORDER PASSED IN REVIEW PETITION - APPEALABLE - ORDER MAINTAINING ORIGINAL ORDER AFTER RECONSIDERATION - APPEALABLE - ORDER ALTERING/MODIFYING/REVERSING ORIGINAL ORDER - APPEALABLE - ORDER REFUSING TO ENTERTAIN REVIEW PETITION - NOT APPEALABLE - ORDER REFUSING TO ENTERTAIN REVIEW PETITION - APPEALABLE IF JUDGMENT WITHIN MEANING OF CLAUSE 15 OF LETTERS PATENT - PROVISIONS OF CPC SUBSTANTIVE - APPLICABLE TO PROCEEDINGS UNDER ARTICLE 226 OF THE CONSTITUTION - POWER OF REVIEW INHERENT IN HIGH COURTS - ORDER ENTERTAINING REVIEW PETITION AND RECONSIDERING MATTER ON MERITS BUT LEAVING ORIGINAL ORDER UNALTERED - GIVES RISE TO INDEPENDENT CAUSE OF ACTION TO APPEAL.

Fact of the Case:

Tahsildar requested District Employment Officer to sponsor eligible candidates for Village Assistant. Interview call letter was addressed to the writ petitioner by the Tahsildar. Interview was held and writ petitioner was appointed as Village Assistant. Official respondents preferred an appeal on the ground that the post had not been filled up since the communal roster had not been followed. Writ appeal was disposed of with liberty to the appellants to carry a review before the Single Bench. Review Application was filed. Single Bench considered the matter on review and dismissed the same. Appellants filed a writ appeal against the judgment and order of Single Bench. Reference was made by an order of Division Bench as to whether appeal filed against the order of review maintainable sans a challenge to the order passed in the writ petition.

Finding of the Court:

1. A petition for review of an order passed in proceedings under Article 226 of the Constitution would lie irrespective of whether the provisions of the Code have been made applicable in a High Court to proceedings in such High Court under Article 226 of the Constitution. 2. An appeal would lie against an order passed in a review of the order under Article 226 of the Constitution, even if the original order is retained, once the review petition is entertained and the additional material or grounds that are referred to or urged are considered or a further consideration on merits is evident from the order. In such a scenario, the original order, albeit being retained in substance, is eclipsed by the subsequent order as the considerations for making the subsequent order may be different. 3. An appeal against an order passed in a review petition in proceedings under Article 226 of the Constitution will lie if the original order is altered or modified or reversed. In such a scenario, the original order would stand substituted and lose all relevance. 4. Ordinarily, an order refusing to entertain a review against an order passed under Article 226 of the Constitution and, thereby, not entertaining the further material sought or grounds to be relied upon or reconsidering the original basis of the order, would not be appealable. 5. However, even if an order is passed refusing to entertain a review petition or look into the additional material or grounds sought to be relied upon or reconsidering the matter, an appeal may lie therefrom if such order of refusal can be regarded as a judgment within the meaning of Clause 15 of the Letters Patent. 6. All the above would hold good even if the provisions of the Code were to apply or were expressly made applicable to proceedings under Article 226 of the Constitution in this Court.

Issues: 1. Is the appeal filed against the order of review maintainable sans a challenge to the order passed in the writ petition; 2. Is the appeal maintainable when the earlier order was passed without going into the merits of the case giving liberty to file a review; 3. If the appeal is maintainable, what is the scope and ambit, meaning thereby the issue, which is dealt with by the learned Single Judge in the writ petition can be gone into or not. 4. Whether the order passed in the review petition would amount to deemed merger of the order passed in the writ petition. 5. Is the review maintainable in a case, where the appeal filed against the order of the learned single Judge is dismissed and therefore, the order in the writ petition stands. If so, what is the scope of the review petition and appeal. 6. Is a review of a judgment of the learned Judge akin to a review under the Code of Civil Procedure. 7. Is a decision rendered in a review on a new issue can be stated to be appealable as against the re-agitation of the same issue. 8. Whether the issue of principle of res judicata would apply, when an issue was not considered and decided by the learned single Judge and in which case, the review decided by him would be appealable or not.

Ratio Decidendi: 1. The power of review has to be traced to both the plenary jurisdiction conferred by the Article 226 of the Constitution and the status of High Courts as courts of record as recognised in Article 215 thereof. 2. The substantive provisions of the Code or the matters of public policy incorporated therein would have universal application and may apply, even without reference by express incorporation to proceedings under Article 226 of the Constitution. 3. Upon a review being entertained, whether or not the original order is maintained or reversed or modified upon reconsideration of the matter, the resultant order has to be regarded as a judgment within the meaning of Clause 15 of the Letters Patent in matters under Article 226 of the Constitution. Such resultant orders would be appealable.

Final Decision: W.A. (MD) No. 281 of 2019 is allowed and the judgment and order of January 2, 2019 stand set aside. W.P. (MD) No. 19696 of 2014 is dismissed as a consequence. There will be no order as to costs. Connected C.M.P. No. 2297 of 2019 is closed.