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2010 DIGILAW 834 (RAJ)

Narain Lal Saini v. State of Rajasthan

2010-04-13

MAHESH CHANDRA SHARMA

body2010
JUDGMENT : Mahesh Chandra Sharma, J. 1. Brief facts giving rise to this review petition are that the writ petition filed by the petitioner was dismissed by this Court by a reasoned order dated March 11, 2008. In the review petition, it has been stated that certain facts escaped the notice of this Court and only on that ground this review petition has been preferred. It is stated that the petitioner has completed 17 years of service as Patwari and there was no complaint against his work. The petitioner given out that he has placed on record Government orders in order to show that Patwari Examination was exempted to similarly situated persons who; has worked for long time. The petitioner was not given any chance to appear in the Patwari examination. The petitioner stated that similarly situated persons were absorbed on the post of Class-IV but he was not absorbed. The case reported in Sadhna Lodh v. National Insurance Co. Ltd. 2003 (3) SCC 524 , is not applicable to his case but his case is covered by the case of State of Karnataka v. Uma Devi, 2006 (4) SCC 1 . 2. The respondents filed affidavit to controvert the submissions made in the review petition in the affidavit it has been averred that the writ petition was decided by this Court after hearing the parties on 11.03.2008 by a reasoned order and there is no error apparent on the fate of the record which requires review of the order passed by this Court. The submissions made before this Court were considered while deciding the writ petition. There is no averment by way of affidavit that particular submissions were made and were not considered as such no case is made out for review. The petitioner is neither fulfilling the requisite qualification of Patwari nor was appointed on the said post as such question of allowing him to work as Patwari does not arise. His engagement was initially on daily wages and subsequently given fix emoluments. To acquire qualification of Patwari and to apply for the post lies on the petitioner therefore the question of relaxation does not arise. Lastly a prayer was made that the review petition is not maintainable. 3. His engagement was initially on daily wages and subsequently given fix emoluments. To acquire qualification of Patwari and to apply for the post lies on the petitioner therefore the question of relaxation does not arise. Lastly a prayer was made that the review petition is not maintainable. 3. R.C. Joshi, learned counsel for the petitioner made emphasis that his submissions as stated above were not considered in the judgment dated 11.03.2008 and prayed for allowing the review petition, recalling the order dated 11.03.2008 and granting the relief as prayed in the writ petition by placing reliance on Ramesh Chand Tiwari v. Board of Revenue & Ors. 2005 (2) RLR 122 and State of Karnataka v. Uma Devi, 2008 (8) RLR 612. 4. Mr. S.B. Mathur, learned counsel for the respondents argued the matter at length and made emphasis that there is no ground for reviewing the order passed by this Court placing reliance on the case of State of West Bengal & Ors. v. Kamal Sengupta & Anr., AIR 1964 SC 1372 . 5. Before proceeding further it is necessary to have a look at the power of review under the Civil Procedure Code. 6. The power of a Civil Court to review its judgment/decision is traceable in Section 114 Civil Procedure Code. The grounds on which review can be sought are enumerated in Order 47, Rule 1 Civil Procedure Code, which reads as under: "15 Order 47, Rule 1 1. Application for review of judgment - (1) Any person considering himself aggrieved: (a) by a decree or order from which an appeal is allowed but from which no appeal has been preferred, (b) by a decree or order from which no appeal is allowed, or (c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order. Thus it is clear that this court can review its order only if either of the grounds enumerated in Order 47, Rule 1 are available. 7. In Thungabhadra Industries Ltd. v. Govt. of A.P., 1997 (8) SCC 715 , the Apex Court held that a review is by no means an appeal in disguise whereof an erroneous decision can be corrected. 8. In Parsion Devi & Ors. v. Sumitri Devi & Ors., 2006 (4) SCC 78 , the Apex Court held as under: "Under Order 47, Rule 1 Civil Procedure Code a judgment may be open to review inter-alia if there is a mistake or an error apparent on the face of the record. An error which is not self evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the Court to exercise its power of review under Order 47, Rule 1 Civil Procedure Code. In exercise of the jurisdiction under Order 47, Rule 1 Civil Procedure Code it is not permissible for an erroneous decision to be "reheard and corrected." There is clear distinction between an erroneous decision and an error apparent on the face of the record. While the first can be corrected by the higher forum, the latter only can be corrected by exercise of the review jurisdiction. A review petition has a limited purpose and cannot be allowed to be "an appeal in disguise." 9. While the first can be corrected by the higher forum, the latter only can be corrected by exercise of the review jurisdiction. A review petition has a limited purpose and cannot be allowed to be "an appeal in disguise." 9. In Haridas Das v. Usha Rani Banik & Ors., 1979 (4) SCC 389 , the Apex Court made a reference Civil Procedure (Amendment) Act 1976 and held as under: "In order to appreciate the scope of a review, Section 114 Civil Procedure Code has to be read, but this section does not even adumbrate the ambit of interference expected of the Court since it merely states that it "may make such order thereon as it thinks fit." The parameters are prescribed in Order 47 Civil Procedure Code and for the purposes of this is, permit the defendant to press for a rehearing "on account of some mistake or error apparent on the face of the records or for any other sufficient reason." The former part of the rule deals with a situation attributable to the applicant, and the latter to a jural action which is manifestly incorrect or on which two conclusions are not possible. Neither of them postulates a rehearing of the dispute because a party had not highlighted all the aspects of the case or could perhaps have argued them more forcefully and/or cited binding precedents to the court and thereby enjoyed a favourable verdict. This is amply evident from the Explanation to Rule 1 Order 47 which states that the fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior court in any other case, shall not be a ground for the review of such judgment. Where the order in question is appealable the aggrieved party has adequate and efficacious remedy and the court should exercise the power to review its order with the greatest circumspection. 10. Where the order in question is appealable the aggrieved party has adequate and efficacious remedy and the court should exercise the power to review its order with the greatest circumspection. 10. In Aribam Tuleshwar Sharma v. Aribam Pishak Sharma, 1979 (4) SCC 389 , the Apex Court considered the scope of the High Courts power to review an order passed under Article 226 of the Constitution, referred to an earlier decision in Shivdeo Singh v. State of Punjab, AIR 1963 SC 1909 , observed as under: "It is true as observed by this Court in Shivdeo Singh v. State of Punjab, AIR 1963 SC 1909 , there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which is inherent 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 any analogous ground. But, it may not 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 power which may enable an Appellate Court to correct all matter or errors committed by the Subordinate Court." 11. In State of Haryana & Ors. v. M.P. Mohla, 2007 (1) SCC 457 , the Apex Court held as under: "A review petition filed by the appellants herein was not maintainable. There was no error apparent on the face of the record. The effect of a judgment may have to be considered afresh in a separate proceeding having regard to the subsequent cause of action which might have arisen but the same by itself may not be a ground for filing an application for review." 12. There was no error apparent on the face of the record. The effect of a judgment may have to be considered afresh in a separate proceeding having regard to the subsequent cause of action which might have arisen but the same by itself may not be a ground for filing an application for review." 12. The Apex Court culled out principles of review in State of W.B. v. Kamal Sengupta (supra) as under: (i) The power of the Tribunal to review its order/decision under Section 22 (3Cf) of the Act is akin/analogous to the power of a Civil Court under Section 114 read with Order 47, Rule 1 of Civil Procedure Code. (ii) The Tribunal can review its decision on either of the grounds enumerated in Order 47, Rule 1 and not otherwise. (iii) The expression "any other sufficient reason" appearing in Order 47, Rule 1 has to be interpreted in the light of other specified grounds. (iv) An error which is not self-evident and which can be discovered by a long process of reasoning, cannot be treated as an error apparent on the face of record justifying exercise of power under Section 22(3) (f). (v) An erroneous order/decision cannot be corrected in the guise of exercise of power of review. (vi) A decision/order cannot be reviewed under Section 22(3)(f) on the basis of subsequent decision/judgment of a coordinate or larger bench the Tribunal or a superior Court. (vii) While considering an application for review, the Tribunal must confine its adjudication with reference to material which was available at the time of initial decision. The happening of some subsequent event or development cannot be taken note of for declaring initial order/decision as vitiated by an error apparent. (viii) Mere discovery of review or important matter or evidence is not sufficient ground for review. The party seeking review has also to show that such matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the Court/Tribunal earlier. 13. In the light of the above principles, I shall now consider whether the order passed by this court dated 11.03.2008 suffered from patent mistake or an error apparent on the face of the record so as to warrant its review. 14. 13. In the light of the above principles, I shall now consider whether the order passed by this court dated 11.03.2008 suffered from patent mistake or an error apparent on the face of the record so as to warrant its review. 14. The ruling cited by the learned counsel for the petitioner is not applicable in the present context of review petition filed by the petitioner. The petitioner was heard at length in the writ petition filed by him against the award passed by the Labour Court Bharatpur, dated 15.07.1995 after considering the documents and evidence produced by both the parties before it. This Court in the judgment dated 11.03.2008 placing reliance on Sadhna Lodh v. National Insurance Co. Ltd. (supra) considered that the Labour Court has not made any grave error in order to interfere under Article 226 and 227 of the Constitution of India. This Court observed as under: (Matter in other language) 15. The order dated 11.03.2008 passed by this Court does not suffer from any patent mistake or an error apparent on the face of the record so as to warrant its review. Thus in my considered opinion there is no ground to review the order of this Court dated 11.03.2008 and the review petition being devoid merit stands dismissed. Petition dismissed.