Research › Search › Judgment

Patna High Court · body

2000 DIGILAW 74 (PAT)

Bihari Lal Monka v. Govt. Of India

2000-01-17

S.K.CHATTOPADHYAYA

body2000
Judgment 1. All these Civil Review applications were heard analogously on preliminary objection being raised by the learned counsel for the parties that these applications cannot be heard and disposed of by me sitting singly. 2. The petitioners preferred these review applications for reviewing the order passed by the Division Bench on 22-4-1997 in CWJC Nos. 4187/96R, 4188/96R and 4189/96R. The aforesaid writ applications were heard analogously by me sitting with Hon ble Mr. Justice M.Y. Eqbal and disposed of by one common order with the consent of the parties. Similarly in Civil Review No. 9 of 1998 (R) prayer has been made for review/modify the order dated 6-8-1997 passed in CWJC No. 25 of 1989 (R), which was heard by the same Bench. 3. As Hon ble Mr. Justice Eqbal was holding Court at Patna Bench at the relevant time (30-10-1998), all these review applications were placed for admission before me for disposal. Learned counsel for the petitioners raised the objection on the ground that when a judgment or an order is passed by the High Court in exercise of its power under Articles 226 and 227 of the Constitution, there is no provision either in the Civil Procedure Code or in the Patna High Court Rules for reviewing the said order but only because the High Court can review a judgment for the interest of justice under Article 226, the matter can be placed before the Hon ble Chief justice for constituting a Bench for disposal of the same. It is submitted that even if Hon ble Mr. Justice Eqbal was not available at Ranchi Bench for constituting a Division Bench, the matter should have placed before a Division Bench in which one of the Judges who was available at Ranchi Bench at that time. In that case, it is contended, myself should have been a member of the said Division Bench and by no means the matter could have been placed before me sitting singly. 4. It is informed at the Bar that in view of the decision in the case of Manoharlal Verma V/s. State of Madhya Pradesh reported in AIR 1970 Madh. Pra. 131, the matter was placed before me for deciding the review applications singly by the administrative order of the then Hon ble Chief Justice. 5. 4. It is informed at the Bar that in view of the decision in the case of Manoharlal Verma V/s. State of Madhya Pradesh reported in AIR 1970 Madh. Pra. 131, the matter was placed before me for deciding the review applications singly by the administrative order of the then Hon ble Chief Justice. 5. In the aforesaid decision of the Madhya Pradesh High Court the final order was passed by Division Bench of that Court in Miscellaneous petition to which one of the Hon ble Judge was Pandey, J. The other Hon ble Judge, namely, Mr. Dixit, the Chief Justice, having retired by that time, the matter was placed before Hon ble Justice K.L. Pandey and Hon ble Justice A.P.Sen. Before their Lordships question for consideration was as to whether, if an application for review lies, it should be heard by Pandey, J. sitting singly or by a Division Bench of this Court or by a still larger Bench. Deciding the question their Lordships noticed particular rules framed by the Madhya Pradesh High Court for regulating its proceeding under Article 226 of the Constitution. Though the rules do not provide review of any order passed in those proceedings but Rules 3 and 4 of Chapter I of the Rules of that Court provides that in cases not provided for by Order XLVII, Rule 5 of the Code of Civil Procedure, an application for review of a decree or order shall be heard. The relevant Rules speak thus :- "(a) if the decree or order, review of which is applied for, is passed by a Judge alone, by a Bench of two Judges; (b) if the said decree or order was passed by a Bench of two or more Judges, by a Bench consisting of as many Judges as the Bench of whose decree or order, review is applied for ".Rule 4 of the said Rules contemplates that save as provided by law or by these rules or by special orders of the Chief Justice, all matters shall be heard and disposed of by a Bench of two Judges. Noticing provision as laid down in Order 47 Rule 5 of the Code of Civil Procedure their Lordships were of the view that when such a situation arises in a case covered by Order 47 Rule 5 of the C.P.C. the application for review must be heard and disposed of by the remaining Judge sitting alone. However, their Lordships were of the view that Order 47, Rule 5 does not proprio vigore apply to proceedings under Article 226 of the Constitution, to which the principles underrlying some of the provisions of the Code have been applied by analogy. Thus, their Lordships were pleased to hold that provision of Order 47 Rule 5 cannot be invoked in derogation of Rules 3 and 4 of that Court. As because the said case was not covered by Order 47 Rule 5 their Lordships held that application for review must be heard by a Bench of two Judges as provided by Rule 3. As because the said case was not covered by Order 47 Rule 5 their Lordships held that application for review must be heard by a Bench of two Judges as provided by Rule 3. 6 On the contrary Chapter VII of the Patna High Court Rules speaks about procedure before admission and Rule 14 of this chapter contemplates that "if an application for review of a judgment cannot be heard in the manner provided in Order XLVII, rule 5, such application shall be presented by the applicant or his pleader with the certificate of the Stamp Reporter, as required by rule 12, to the Chief Justice, who shall provide for the hearing of the application." Rule 22 is specific on the point that when on any application for revision or review the record is sent for, it shall, when received, be laid before the Judge or Judges who made the order, for a decision as to whether the application is to be admitted or rejected (Emphasis added).Rule 28 of Chapter VII reads as under :- "No application to the same effect or with the same object as a previous application upon which a Judge has passed any order, other than an order of reference to another Judge or Judges, shall, except by way of appeal, be presented to any other Judge or Judges, on behalf of any person or whose behalf such previous application was presented." 7 Thus it is obvious that in presenting an application for review of a judgment or an order the matter must be placed before the Division Bench when the order sought to be reviewed was passed by the Division Bench. Moreover, in view of explanation to Sec. 141 of the C.P.C. inserted by 1976 Amendment Act the expression "proceedings" includes proceedings under order IX,but does not include any proceeding under Article 226 of the Constitution. 8. Moreover, the Apex Court in the case of Reliance Industries Ltd. V/s. Pravinbhai Jasbhai Patel, AIR 1997 SC 3892 , while explaining the scope of review application has observed that review petitions are not by way of appeals before the superior Court but they are by way of requests to the same Court which decided the matter, for persuading it to recall or reconsider its own decision on grounds which are legally permissible for reviewing such orders. Their Lordships further held that as laid down by O. XLVII R. 5, CPC as far as possible the same two learned Judges or more Judges who decided the original proceedings have to hear the review petition arising from their own judgment. Thus in substance a review amounts to reconsideration of its own decision by the very same Court. Thus, in view of this decision also when the writ applications were heard and disposed of by the Division Bench comprising of myself and Hon ble Mr. Justice M.Y. Eqbal, in my view, the said decisions cannot be reviewed or modified by me sitting singly. 9. For the reasons stated above, I am of the view that the preliminary objection raised by the learned counsel for the petitioners is well founded. These review applications cannot be entertained by me sitting singly. Let the matters be placed before the Hon ble the Chief Justice for placing the matters before an appropriate Bench.Applications dismissed.