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2022 Supreme(MP) 162
IN THE HIGH COURT OF MADHYA PRADESH
Sujoy Paul, J.
Commissioner, Municipal Corporation v. Kedarnath Singh Mandele & Another
Miscellaneous Civil Case No. 1331 of 2022 (Jabalpur);
Decided on 24.6.2022
R. N. Singh with Saurabh Makhija and Vijendra Singh Choudhary for applicant; K. C. Ghildiyal with R.K. Pandey for respondent No. 1.
Headnote:
(1) Review -- application artistically worded as ‘application seeking clarification’ -- for all practical purposes, applicant is seeking review -- Court exercising review jurisdiction is obliged to examine petition on touchstone of broad principles flowing from O. 47 R. 1 of CPC -- litigant not entitled to get something indirectly, which he cannot get directly. (2006) 8 SCC 686, (1987) 1 SCC 378 and (2018) 9 SCC 100 followed. [Paras 6 & 7
(2) Civil P. C., 1908 -- O. 47 R. 1 -- review -- cannot be entertained against order from which appeal is pending -- not entertainable when during pendency of or prior to filing of review petition, appellate Court upheld order and it stood merged in order of appellate Court. AIR 1964 SC 1372 followed. AIR 1971 Bom. 45 and ILR (1995) II Delhi 649 relied on. (2000) 6 SCC 359 referred to. [Para 8
(3) Review -- applicant had occasion to apprise appellate Court about alleged deficiency in educational qualification of private respondent -- failed to apprise appellate Court about it -- cannot be permitted to raise said defence for first time by way of review -- assuming that said ground was raised by applicant before writ appellate Court, yet writ appellate Court did not interfere, it shall be deemed to have been rejected -- cannot be permitted to be raised by way of ‘application seeking clarification’. (1986) 1 SCC 100 followed. AIR 1988 Mad. 248 relied on. [Paras 12 & 13
¼1½ iqufoZy¨du && vkosnu dykdkjh ls ^Li"Vhdj.k dh ÃIlk dk vkosnu^ fy[kk x;k && okLro esa vkosnd iqufoZy¨du pkg jgk gS && iqufoZy¨du vfèkdkfjrk ç;qä djus okyk U;k;ky; ;kfpdk d¨ flfoy çfØ;k lafgrk d¢ vk- 47 fu- 1 d¢ eq[; fl)kar¨a dh dl©Vh ij ij[kus d¢ fy, ckè; && eqdnesckt og vçR;{kr% ikus dk gdnkj ugÈ t¨ og çR;{kr% çkIr ugÈ dj ldrkA ¼2006½ 8 ,l lh lh 686] ¼1987½ 1 ,l lh lh 378 rFkk ¼2018½ 9 ,l lh lh 100 vuqlfjrA ¼iSjk 6 ,oa 7
¼2½ flfoy çfØ;k lafgrk] 1908 && vk- 47 fu- 1 && iqufoZy¨du && ml vkns'k d¢ fo#) xzg.k ugÈ fd;k tk ldrk ftldh vihy yafcr gS && rc xzká ugÈ tc iqufoZy¨du ;kfpdk d¢ yacu d¢ n©jku vFkok mldh çLrqfr d¢ iwoZ] vihy U;k;ky; us vkns'k ekU; dj fn;k rFkk og vihy U;k;ky; d¢ vkns'k esa foyhu g¨ x;kA , vkb vkj 1964 ,l lh 1372 vuqlfjrA , vkb vkj 1971 cacà 45 rFkk vkb ,y vkj ¼1995½ 2 fnYyh 649 voyafcrA ¼2000½ 6 ,l lh lh 359 fufnZ"VA ¼iSjk 8
¼3½ iqufoZy¨du && vkosnd d¢ ikl vihy U;k;ky; d¨ çkbosV çR;FkÊ dh 'kSf{kd vgZrk esa vfÒdfFkr deh d¢ ckjs esa voxr djkus dk volj Fkk && ml ckjs esa vihy U;k;ky; d¨ voxr ugÈ djk;k && çFke ckj iqufoZy¨du d¢ ekè;e ls mä çfrj{kk ysus ugÈ nh tk ldrh && eku fy;k tk, fd vkosnd }kjk mä vkèkkj fjV vihy U;k;ky; d¢ le{k fy;k x;k Fkk fQj Òh fjV vihy U;k;ky; us gLr{ksi ugÈ fd;k] r¨ og ukeatwj fd;k x;k le>k tk,xk && ^Li"Vhdj.k dh ÃIlk dk vkosnu^ d¢ ekè;e ls mä vkèkkj ysus ugÈ fn;k tk ldrkA ¼1986½ 1 ,l lh lh 100 vuqlfjrA , vkb vkj 1988 eækl 248 voyafcrA ¼iSjk 12 ,oa 13
ORDER (Oral)
1. This is an application seeking clarification of the order dated 24.6.2016 passed by this Court in W.P. No.321 of 2015.
2. Shri R.N. Singh, learned Senior Counsel for the applicantMunicipal Corporation, Jabalpur submits that the applicant is seeking clarification of said order only to a limited extent. The respondent No. 1 was directed to be regularized on the post of Junior Engineer. This could not be pointed out/noticed that the respondent No. 1 does not have minimum essential qualification to become a Junior Engineer. To this extent, the order passed in W.P. No. 321 of 2015 deserves to be modified.
3. It is noteworthy that learned Senior Counsel for the Corporation apprised this Court that Writ Appeal No. 453/2016 and other connected matters filed by the Corporation were dismissed by a common reasoned order by the Division Bench on 9.8.2016. Aggrieved, the Corporation filed a SLP which was dismissed in liminie on 13.8.2019. The contention of learned counsel for the applicant is that in view of judgment of Supreme Court in (2000) 6 SCC 359 (Konhayammed v. State of Kerala), since SLP was dismissed on the first hearing and was not converted into an appeal, the doctrine of merger order of this Court cannot be presumed. Thus, the necessary clarification in the aforesaid order may be ordered.
4. Countering the aforesaid argument, Shri K.C. Ghildiyal, learned Senior Counsel for the private respondent submits that the order of this Court in W.P. No. 321 of 2015 was unsuccessfully challenged by the present applicant before the writ appellate Court and in view of detailed order of Division Bench, order of this Court stood merged in the order of Division Bench. Thus, no clarification/review is permissible. Apart from that, there is considerable delay in seeking clarification. For this reason also, application may be dismissed.
5. No other point is pressed by learned counsel for the parties. I have heard the learned counsel for the parties at length and perused the record.
6. Although application is artistically worded as an ‘application seeking clarification’, for all practically purposes, in my view, the applicant is seeking review of order dated 24.6.2016 passed in W.P. No. 321 of 2015. Had it been captioned “review petition”, at the threshold it would have been clear that the petitioner is required to satisfy the principles flowing from Order 47 rule 1 of CPC. This Court while exercising the review jurisdiction is obliged to examine the petition on the touchstone of the broad principles flowing from Order 47 rule 1 of CPC. The apex Court in (2006) 8 SCC 686 (Union of India and others v. B. Valluvan and others) poignantly held that --
“16. The Division Bench of the High Court committed a serious error in entering into the merit of the matter while exercising its review jurisdiction. The Court's jurisdiction to review its own judgment, as is well known, is limited. The High Court, indisputably, has a power of review, but it must be exercised within the framework of section 114 read with Order 47 of the Code of Civil Procedure. The High Court did not arrive at a finding that there existed an error on the face of the record. In fact, the High Court, despite noticing the argument advanced on behalf of the Union of India that the 1st respondent had no legal right to be appointed, proceeded to opine that the panel prepared for filling up of future vacancies should be given effect to. The review of the High Court was not only contrary to the circular letter issued by the Union of India, but also contrary to the general principles of law.”
7. Unless the above necessary ingredients are satisfied to entertain a review petition, this petition cannot be entertained merely because it is called as ‘application seeking clarification’. This is trite that a litigant is not entitled to get something indirectly, which he cannot get directly :- (See (1987) 1 SCC 378, (D.C. Wadhwa Dr. and others v. State of Bihar and others), (2018) 9 SCC
