ORAL ORDER

(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL)

1. The instant petition has been filed by an advocate practicing in the High Court of Gujarat, with the following reliefs:-

“A. This petition be admitted and allowed.

B. By exercising power under Article 26 of the Constitution of India, this Hon’ble Court may be pleased to issue appropriate writ, order and/or direction, declaring Articles 8 & 9 of Schedule I of Gujarat Court Fees Act, 2004 with regard to part of the grounds for review proceedings as provided under order 47 Rule 1 “ or on account of some mistake or error apparent on the face of the record or for any other sufficient reason,” as ultra vires Part III of the Constitution of India, 1950, as violative of Articles 14 and 21 of the Constitution of India.”

2. The basis of challenge to the validity of the aforesaid provisions of the Gujarat Court Fees Act, 2004 that the review is permissible under Section 114 read with Order XLVII of the Code of Civil Procedure, 1908, on the grounds mentioned therein and one of them is on account of some mistake or error apparent of the face of the record. The contention is that while preferring the review application under any of the grounds mentioned in the aforesaid provisions, the litigant has to pay Court Fee as per the Schedule contained in the Gujarat Court Fees Act, 2004. The litigant, who are compulsorily required to pay the entire Court Fee as leviable on the plaint, if the review is filed on or after 90 days from the date of judgement/decree and half of the amount, if the review application is filed before the 90th day from the passing of the judgement/decree, are prejudiced for the mistake on the part of the advocate presenting his case in the Court or mistake of the Court while passing the order. The contention is that since the review application is maintainable on account of mistake which may be either be on the part of the advocate presenting his case or the Court delivering the judgement/order, no Court Fee can be charged from the litigant.

3. It was urged that the review is plenary power and the object behind providing for review to prevent palpable errors and miscarriage of justice. The litigants cannot be made to suffer penalty of paying Court Fee in the background of the above facts.

4. The party-in-person has relied on the decisions of the Apex Court in the case of Daman Singh and others etc. vs. State of Punjab and others, AIR 1958 SC 973 and in the case of Moran Mar Basselios Catholicos and another vs. Most. Rev. Mar Poulose Athanasius and others, AIR

1954 SC 526.

5. Noticing the contention of the party-in-person, suffice it to say that the grounds of review namely on account of some mistake or error apparent on the face of the record are taken to seek recall of the order, but there may be cases wherein allegations of mistake or error apparent on the face of the record may not be found correct and the review application is held liable to be rejected. The fact remains that the availability of ground to seek review, that is on account of mistake or error apparent on the face of the record, does not mean that the order/judgement is to be reviewed on the asking of review-applicant. The review applicant has to establish existence of such an error by placing the material on record and the Court may reach at a different conclusion.

6. Further, the concept of Court Fee is to regulate the institution of cases in the Courts of law; to charge some amount from the litigant approaching the Court, which goes in the State exchequre and which in turn is utilized by the State to manage its judicial institutions. It has nothing to do with the grounds on which a statutory remedy may be available to the litigants. The facts that a litigant may succeed in the proceeding drawn by him has no bearing on the charging of the Court fee under the statutory regime. The challenge to the provisions of the Gujarat Court Fees Act, 2004 for institution of the Review Application b