What is the scope of High Court’s power of review

Scope of review

Doctrine of “actus curiae neminem gravabit

Law

To bear in mind, that the scope of review, which has undergone, as the days have rolled by, some significant changes inasmuch as there was a time, when it was considered impermissible to review a judgment and order unless a statute provides therefor; but, the Courts, with the passage of time, have concluded that justice is, after all, a virtue, which must prevail over all barriers and that the rules, procedures or technicalities of law must, if necessary, bend before justice and that such a situation may arise, when a court finds that it has rendered a decision, which it would not have rendered, but for an assumption of fact, which, in fact, did not exist and its adherence to such a faulty decision would result in miscarriage of justice. In such cases, nothing can prevent a court from rectifying its own error, because the doctrine of “actus curiae neminem gravabit”, (i.e., an act of court shall prejudice none), can be invoked, in such a case, for correcting the error committed by the court.

Similarly, at one point of time, it was considered to be a rule of universal application that review by a court of its order is not possible except on three prescribed grounds, namely, (i) discovery of new and important matter or evidence, which, after the exercise of due diligence, was not within the applicant’s knowledge or could not be produced by him at the time, when the decree or order was passed, (ii)  mistake or error apparent on the face of the record or (iii) any such sufficient ground, which is analogous to the two grounds aforementioned. However, it has, now, surfaced in the light of the judicial pronouncements, that the expression, „any sufficient ground‟, must be analogous to the two grounds aforementioned, is no longer a rule of universal application.

A review of a judgment and order is permissible, where a glaring omission or patent mistake or grave error has crept in, because of judicial fallibility.

The court must remain mindful of the basic principle of review that a review is not a rehearing of a matter on merits and cannot be lightly entertained by the Court. Observed the Supreme Court, in Sow Chandra Kanta v. Sk. Habib, reported in (1975) 1 SCC 674, “A review of a judgment is a cerious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility. A mere repetition, through different counsel, of old and overruled arguments, a second trip over ineffectually covered ground or minor mistakes of inconsequential import are obviously insufficient. The very strict need for compliance with these factors is the rationale behind the insistence of counsel‟s certificate, which should be a routine affair or a habitual step.”

 Yet another principle of review is that the power of review has to be exercised to prevent miscarriage of justice or correct grave and palpable error. Laid down the Supreme Court, in Aribam Tuleshwar Sharma v. Aibam Pishak Sharma, reported in (1979) 4 SCC 389, following its earlier decision in the case of Shivdeo Singh v. State of Punjab (AIR 1963 SC 1009) as follows:

“There is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on the ground that the decision was erroneous on merits. That would be the province of a court of appeal. A power of review is not to be confused with appellate powers, which may enable an appellate court to correct all manner of errors committed by the subordinate court.”

From the underlined portion, it becomes transparent that while an appellate Court is empowered to correct all matters of error committed by the subordinate court, review can be allowed on limited grounds and that the review cannot be sought for, much less allowed, on the ground that the decision was erroneous on merits inasmuch as such an aspect would be exclusively within the province of appellate court. Dealing with this aspect of review jurisdiction, the Supreme Court, in Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi (AIR 1980 SC 674), observed, thus:

“Whatever be the nature of the proceeding, it is beyond dispute that a review proceeding cannot be equated with the original hearing of the case and the finality of the judgment delivered by the Court will not be reconsidered except where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility.”

It must be, however, kept in mind that the above observations were made by the Supreme Court, while considering the scope of Article 137 of the Constitution read with Order 47 Rule 1 CPC and Order XL Rule 1 of the Supreme Court Rules, and held, in Northern India Caterers (India)  Ltd.(supra), as follows:

“It is well settled that a party is not entitled to seek a review of a judgment merely for the purpose of a rehearing and a fresh decision of the case. The general principle is that a judgment pronounced by a court is final and departure from this principle is justified only when circumstances of a substantial and compelling character make it necessary to do so”.
19. For instance, if the attention of the Court was not drawn to a material statutory provision during the original hearing, the Court will review its judgment. (See, Girdhari Lal Gupta v. D. H. Mehta and Another (AIR 1971 SC 2162). The Court may also reopen its judgment if a manifest wrong has been done and it is necessary to pass an order to do full and effective justice. (See, O.N. Mohindroo v. The District Judge, Delhi and Another (AIR 1971 SC 107) and Northern India Caterers (India) Ltd. (supra).

 It follows, therefore, that the power of review can be exercised for correction of a mistake, but not to substitute a view. Such powers can be exercised within the limits of the statute dealing with the exercise of power. A review cannot be treated as an appeal in disguise. The mere possibility of two views on the subject is not a ground for review. Once a review petition is dismissed, no further petition  for review can be entertained.

While considering the scope of the power of review, what needs to be noted is that under Section 114 of the Code, any person, considering himself aggrieved by a decree or order of a court from which appeal is allowed, but no appeal is preferred, or where there is no provision for appeal against the order or decree, may apply for review of the decree or order, as the case may be, in the court, which made the order or passed the decree.

Broadly speaking, thus, under Section 114 of the Code, review of a decree or order is possible if no appeal is provided against such a decree or order or where provisions for appeal exist, but no appeal has been preferred. This is really the substantive power of review. This substantive power of review under Section 114 has not laid down any condition as a condition precedent for exercise of the power of review nor has Section 114 imposed any fetters on the court’s power to review its decision. No wonder, therefore, that the Supreme Court, in Board of Control for Cricket, India and Another v. Netaji Cricket Club and Others (AIR 2005 SC 592), observed:

“We are, furthermore, of the opinion that the jurisdiction of the High Court in entertaining a review application cannot be said to be ex facie bad in law. Section 114 of the Code empowers a court to review its order if the conditions precedents laid down therein are satisfied. The substantive provision of law does not prescribe any limitation on the power of the court except those, which are expressly provided in Section 114 of the Code in terms whereof, it is empowered to make such order as it thinks fit.”

Lest the subtle but real distinction existing between the power of review, on the one hand, and the power of an appellate court, on the other, disappears completely, Order 47, Rule 1 circumscribes a court’s power of review by specifying the three grounds on which review is possible, the specific grounds being, (i) discovery of new and important matter or evidence, which, after the exercise of due diligence, was not within the applicant’s knowledge or could not be produced by him at the time, when the decree or order was passed, (ii) mistake or error apparent on the face of the record and (iii) for “any other sufficient reason”.

Having taken into account the said three grounds, which Order 47, Rule 1 embodies as the grounds for review, the Supreme Court, in Moran Mar Basselios Cathlicos v. Mar Poulose Athanasius (AIR 1954 SC 526), held that power of review is circumscribed by the three grounds, which have been specified in Order 47, Rule 1.

Explaining the scope of the third ground of  review mentioned in Order 47, Rule 1, namely, “any other sufficient reason”, the Supreme Court, in Moran Mar Basselios Cathlicos (supra), held that “any other sufficient reason” cannot be “any sufficient reason”, but a reason, which is “sufficient” and, at the same time, at least, “analogous” to one of the two reasons as indicated hereinbefore, namely, (i) discovery of new and important matter or evidence, which, after the exercise of due diligence, was not within the applicant’s knowledge or could not be produced by him at the time, when the decree or order was passed and (ii) mistake or error apparent on the face of the record.

In short, thus, what Moran Mar Basselios Cathlicos (supra) laid down was that the expression, “any other sufficient reason”, cannot be construed as “any sufficient reason” and that “any sufficient reason” cannot become a ground for review unless even such “sufficient reason” is “analogous” to one of the other two grounds mentioned in Order 47, Rule 1, namely, (i) discovery of new and important matter or evidence, which, after the exercise of due diligence, was not within the applicant’s knowledge or could not be produced by him at the time, when the decree was passed or (ii) mistake or error apparent on the face of the record.

Board of Control for Cricket, India (supra)  is one of those cases, which has elaborately dealt with the scope of the power of review, particularly, of the High Courts and, having considered the case of Moran Mar Basselios Cathlicos (supra), the Supreme Court has clarified, in no uncertain words, in Board of Control for Cricket, India (supra), that the rule that “any other sufficient ground” must be “analogous” to the other two grounds, as mentioned in Order 47, Rule 1, “is not a rule of universal application”. The relevant observations, made, at paragraph 91, in Board of Control for Cricket, India (supra), in this regard, read:

“91. It is true that in Moran Mar Basselios Cathlicos v. Most Rev. Mar Poulose Athanasius, MANU/SC/0003/ 1954 : [1955] 1 SCR 520, this court made observations as regards limitations in the application of review of its order stating: Before going into the merits of the case it is as well to bear in mind the scope of the application for review which has given rise to the present appeal. It is needles to emphasise that the scope of an application for review is much more restricted than that of an appeal. Under the provisions in the Travancore Code of Civil procedure which is similar in terms of Order 47, Rule 1 of our Code of Civil Procedure, 1908, the court of review has only a limited jurisdiction circumscribed by the definitive limits fixed by the language used therein. It may allow a review on three specified grounds, namely (i) discovery of new and important matter or evidence which, after the exercise of due  diligence, was not within the applicant’s knowledge or could not be produced by him at the time when the decree was passed, (ii) mistake or error apparent on the face of the record, and (iii) for any other sufficient reason. It has been held by the Judicial Committee that the words “any other sufficient reason” must mean “a reason sufficient on grounds, at least analogous to those specified in the rule”, but the said rule is not universal.

 We may pause here to point out that when a judgment of the Supreme Court is explained by a subsequent Bench of the Supreme Court, such an explanation of its own judgment by the Supreme Court carries the same authority as does the decision, which has been explained by it. Hence, in the face of the decision, rendered in Board of Control for Cricket, India (supra), it cannot be contended that no ground, other than the grounds mentioned in Moran Mar Basselios Cathlicos (supra), can ever become a ground for review of an order or decision by a High Court.

 In fact, there is plethora of judicial pronouncements of the Supreme Court, which shows that there can be exceptional cases, where a deviation from the grounds of review, as propounded in Moran Mar Basselios Cathlicos (supra), is possible and one of such cases is the case of Lily Thomas v. Union of India, reported in (2000) 6 SCC 224 : 2000 CriLJ 2433, wherein, having taken into account the facts that (a) the power of review is a creation of statute and not an inherent power, that (b) no power of review can be exercised if not given to a court or Tribunal either specifically or by necessary implication; and that (c) under the guise of review jurisdiction, merit of a decision cannot really be examined, the Supreme Court has, in unequivocal terms, pointed out that justice is, after all, a virtue, which must prevail over all barriers and that the rules, procedures or technicalities of law must, if necessary, bend before justice and that such a situation may arise, when a court finds that it has rendered a decision, which it would not have rendered, but for an assumption of fact, which, in fact, did not exist and its adherence to such a faulty decision would result in miscarriage of justice. In such cases, rules Lily Thomas (supra), nothing can prevent a court from rectifying its own error, because the doctrine of “actus curiae neminem gravabit”, (i.e., an act of court shall prejudice none), can be invoked, in such a case, for correcting the error committed by the court.

The real theme of the Supreme Court’s decision, in Lily Thomas (supra), is that though the power of review cannot be exercised by a court unless the statute confers such a power and that a statutory power of review can Patna High Court C. REV. No.153 of 2015 dt.30-09-2015 19 be exercised subject to such limitations as the statute may impose, yet a court is not powerless, in an appropriate and exceptional case, to rectify its error, because “an act of court shall prejudice none” and, hence, in exceptional cases, a court can invoke the doctrine of “actus curiae neminem gravabit” for correcting an error committed by it.

In fact, from the decision in Municipal Board, Pratabgarh v. Mahendra Singh Chawla, reported in (1982) 3 SCC 331: AIR 1982 SC 1493 , what clearly emerges is that when a High Court acknowledges its error and rectifies its error, which has crept in, what the High Court really does is restore the rule of law and not defeat it. Points out the Supreme Court, in Municipal Board, Pratabgarh (supra), that laws cannot be interpreted and enforced divorced from their effect on human beings for whom the laws are meant. Further observed the Supreme Court, in Municipal Board, Pratabgarh (supra), on this aspect of law, thus, “…. Undoubtedly, rule of law must prevail but as is often said, ‘rule of law must run akin to rule of life. And life of law is not logic but experience’. By pointing out the error, which according to us crept into the High Court’s judgment, the legal position is restored and the rule of law has been ensured its pristine glory…”.

 The law, on the subject of review, may, in the light of the discussions held, as a whole, be summarized thus:

(i) Ordinarily, a court or a tribunal cannot review its order or decision if the statute does not confer on the court or the tribunal, as the case may be, the power to review its own order. This apart, whatever limitations are imposed by a statute, while conferring the power of review on a court or a tribunal, the court or the tribunal, as the case may be, must adhere to the limitations, which the relevant statute may impose on the exercise of such power. Section 114 CPC, which embodies the substantive power of review of a civil court, does not impose any limitations on the court’s power to review its order or decision; yet the power of review even by a civil court cannot be unguided and uncanalised, for, Order 47, Rule 1 circumscribes the court’s power of review.

(ii) Though, at one point of time, it was considered to be a rule of universal application that review by a court of its order is not possible except on three prescribed grounds, namely, (i) discovery of new and important matter or evidence, which, after the exercise of due diligence, was not within the applicant’s knowledge or could not be produced by him at the time, when the decree or order was passed and (ii) mistake or error apparent on the face of the record or (iii) any such sufficient ground, which is analogous to the two grounds Patna High Court C. REV. No.153 of 2015 dt.30-09-2015 21 aforementioned, the subsequent development of law, on the subject of review, has shown that the grounds referred to, namely, that any sufficient ground must be analogous to the two sufficient grounds aforementioned is no longer a rule of universal application.

(iii) One of the cases, which has helped in the expansion of the court’s power to review its order is the case of Lily Thomas (supra) inasmuch as Lily Thomas (supra) ruled that ordinarily, the power of review, being a creature of statute, cannot be exercised as an inherent power, yet such technicalities of law may have to be bent, in an appropriate cases, for the purpose of correcting an order committed by the court if such an error arises out of a presumption of fact, which was nonexistent, and when the court finds that its refusal to review its own error would cause, or has caused, grave miscarriage of justice.

(iv) It is essentially the principle behind the doctrine of “actus curiae neminem gravabit”, which has made the court hold, in Municipal Board, Pratabgarh (supra), that when a court corrects and rectifies an error, it restores the rule of law and not defeat it. Even Rajesh D. Darbar v. Narasingrao Krishnaji Kulkarni, reported in (2003) 7 SCC 219, recognises that in an exceptional case, a court may have to review its order by invoking the doctrine of “actus curiae neminem gravabit”.


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