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2014 DIGILAW 3820 (MAD)

R. Muthukrishnan v. Union of India, rep. , herein by Secretary in the Ministry of Petroleum & Natural Gas, Shastri Bhawan

2014-10-14

SATISH K.AGNIHOTRI, T.S.SIVAGNANAM

body2014
Judgment 1. This Revision Application has been filed to review the order dated 21.03.2008, passed on the preliminary question, which was framed for consideration. 2. The petitioner is a practising Advocate appearing in person filed the said Writ Petition designed as a Public Interest Litigation praying for issuance of a Writ of Declaration to declare the Direct Benefit Transfer scheme for Liquefied Petroleum as inconsistent with public law and the constitutional requirements. 3. On 17.03.2014, the Writ Petition was listed for admission and the petitioner appearing in person appeared with his robes. The Court questioned him as to whether he being the petitioner in the Writ Petition and appearing in person would be entitled to argue with his robes. The petitioner insisted that he is an Advocate enrolled with the Bar Council of Tamil Nadu and in terms of the Rules framed under the Advocates Act, he is duty bound to wear Bands and Gown while appearing and therefore, stated that he is entitled to represent the matter with his robes. On such insistent, this Court framed the following preliminary question for consideration:- whether an Advocate is entitled to argue in a PIL with his robes on the ground that he being an advocate, is entitled to argue with his robes when he is a petitioner in person in a Public Interest Litigation. 4. After hearing the petitioner on the above preliminary question, this Court held that the petitioner being an Advocate appearing as a litigant in person, he is not practising his profession and he cannot be permitted to argue with his robes and accordingly, the preliminary question framed was decided against the petitioner and the petitioner was afforded opportunity to argue the case without his robes. 5. We have heard the petitioner appearing in person, who reiterated the grounds raised in the review petition. 6. 5. We have heard the petitioner appearing in person, who reiterated the grounds raised in the review petition. 6. The sum and substance of the grounds raised are that framing of preliminary question is an error of law, because the same is not in accordance with Order XIV of the Code of Civil Procedure and the preliminary question framed by the Court suo-moto is not the issue for determination in relation to or arising out of the instant public interest litigation in the form of a writ petition seeking redressal of the legal injury caused to 6.68 crores determinate group of households as a result of the DBTL Scheme, for its being in violation of the rule of law. Therefore, it is submitted that the order on the preliminary question passed by this Court involves a patent want of jurisdiction on the part of the Court to pass such an order. It is further submitted that the order passed without jurisdiction is tainted by unwarranted judicial activism. Further, it is submitted that this Court placed reliance on an inapplicable and defunct decision, which has resulted in judicial over reach and it is in utter derogation of the principle of natural justice, as no one should be a Judge of his own cause. Further, it is contended that in the order, it has been observed that the petitioner being an Advocate appearing as a litigant in person, is not practicing his profession and he cannot be permitted to argue with his robes, has restricted the definition of term “Advocate” as a person, who pleaded for the cause of another person before the Courts, notwithstanding Section 29 of the Advocates Act, 1961, which differed from such restricted definition. Further, it is submitted that Section 30 of the Act declared that a duly enrolled Advocate can practice the profession of law before the Courts as of right. Further, it is submitted that Section 30 of the Act declared that a duly enrolled Advocate can practice the profession of law before the Courts as of right. Further, it is submitted that the order under review is against the Rules Governing Advocates of the Bar Council of Tamil Nadu, which rules are the replica of the Rules framed by the Bar Council of India under Section 49(1)(c) of the Advocates Act, wherein it has been stated that an Advocate shall appear in Court at all times only in the prescribed dress and his appearance shall always be presentable and that Advocate shall not wear bands or gown in public places other than in Courts except in such ceremonial occasions and at such places as the Bar Council of India or the Court may prescribe. 7. Further, it is submitted that it is for the Bar Council and not Courts to proceed against the lawyers, who does not adhere to the professional ethics and in this regard reference was made to the decision of the Hon'ble Supreme Court in the case Manohar Lal Sharma Advocate vs. Union of India and Ors., in W.P.No.(C).No.334 of 2014. Further, it is submitted that the order under Review is against the law laid down by the Courts that Advocates shall have the right to act, plead and argue in public interest litigations in the form of Writ Petitions under Article 32 and Article 226 of the Constitution of India and in this regard, reliance has been placed on the decision of the Hon'ble Supreme Court in the case of S.P.Gupta vs. President of India, reported in AIR 1982 SC 149 . Further, it is submitted that the petitioner has appeared in five Writ Petitions in person and wearing his robes, details of which have been given in ground No.(K) of the grounds raised in the review petition. Further, it is submitted that the findings given in the order are baseless, wrong and whimsical and the decision referred to by this Court is not applicable and sought to distinguish the decisions relied on. On the above grounds, the petitioner seeks for review of the order dated 21.03.2014. 8. We have elaborately heard the petitioner and given our anxious consideration to the grounds raised. 9. On the above grounds, the petitioner seeks for review of the order dated 21.03.2014. 8. We have elaborately heard the petitioner and given our anxious consideration to the grounds raised. 9. Before we proceed to consider the contention raised by the petitioner, it would be necessary to consider the scope of the review petition under Order 47, Rule 1 CPC, which reads as follows:- "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. 10. The Hon'ble Supreme Court in the case of the S.Bagirathi Ammal vs. Palani Roman Catholic Mission reported in 2007 (5) CTC 881, after taking note of the above provision pointed out that the provision makes it clear that the review is permissible (a) from the discovery of new and important matter or evidence which, after the exercise of due diligence could not be produced by the party at the time when the decree was passed; (b) on account of some mistake; (c) where error is apparent on the face of the record or is a palpable wrong; (d) any other sufficient reason. It was further pointed out that if any of the above conditions are satisfied, the party may apply for review of the judgment or order of the Court which passed the decree or order. It was further pointed out that if any of the above conditions are satisfied, the party may apply for review of the judgment or order of the Court which passed the decree or order. Further, the provision makes it clear that an application for review would be maintainable not only upon discovery of a new and important piece of evidence or when there exists an error apparent on the face of the record, but also if the same is necessitated on account of some mistake or for any other sufficient reason. An error contemplated under the above Rule must be such which is apparent on the face of the record and not an error which has to be fished out and searched and in other words, it must be an error of inadvertence, it should be something more than a mere error and it must be one which must be manifest on the face of the record. It was further pointed out that an error could be became an error apparent on the face of the record, which would depend upon the materials placed before this Court and such error is so apparent that without further investigation or enquiry, only one conclusion can be drawn in favour of the appellant and in such circumstances, the review will lie. Further under the guise of review, the parties are not entitled rehearing of the same issue, but the issue can be decided just by a perusal of the records and if it is manifest can be set at right by reviewing the order. 11. In Inderchand Jain (Dead) Through Lrs., vs. Motilal (Dead) reported in (2009) 14 SCC 663 , the scope of review was considered by the Apex Court after taking note of the decision in the cases of Rajendra Kumar vs. Rambai reported in (2007) 15 SCC 513 and Lily Thomas vs. Union of India reported in (2000) 6 SCC 224 , it was held that it is beyond any doubt or dispute that the review Court does not sit in appeal over its own order. A rehearing of the matter is impermissible in law. It constitutes an exception to the general rule that once a judgment is signed or pronounced, it should not be altered. It is also trite that exercise of inherent jurisdiction is not invoked for reviewing for reviewing any order. A rehearing of the matter is impermissible in law. It constitutes an exception to the general rule that once a judgment is signed or pronounced, it should not be altered. It is also trite that exercise of inherent jurisdiction is not invoked for reviewing for reviewing any order. Review is not an appeal in disguise. Review can be exercised for correcting of a mistake, but not to substitute a view. 12. Bearing the above legal principle in mind, if the grounds raised by the petitioner are examined, we have no hesitation to hold that the petitioner has miserably failed to point out any error apparent on the face of the record warranting exercise of a review jurisdiction of this Court to review the order dated 21.03.2014. We supported the above conclusion with the following reasons. 13. The undisputed fact is that the petitioner has filed the said Writ Petition as a Public Interest Litigation. The petitioner would admit that he is also aggrieved by the Direct Benefit Transfer scheme for Liquefied Petroleum gas and espousing the cause of crores of consumers of Liquefied Petroleum Gas used for domestic cooking purpose. The Writ Petition has been filed in the name of the petitioner and he is appearing in person. When the Writ Petition was heard at the admission stage, the petitioner was wearing his robes and presented the case as an Advocate. When this Court found that the Advocate is the petitioner himself, question him as to whether he would be entitled to appear with his robes, when he is the writ petitioner. The petitioner insisted that he being an Advocate enrolled in the Bar Council of Tamil Nadu is duty bound to wear bands and gown while appearing in courts, failing which he would be violating the statutory provisions. In order to afford an opportunity to the petitioner and to comply the principles of natural justice, this Court framed a question as to whether an Advocate is entitled to argue in Public Interest Litigation with his robes on the ground that he being an Advocate, is entitled to argue with his robes, when he is the petitioner in person in a Public Interest Litigation. 14. The petitioner would contend that the Court is without jurisdiction to frame the preliminary question suo-moto and the petitioner would term it as unwarranted judicial activism. 14. The petitioner would contend that the Court is without jurisdiction to frame the preliminary question suo-moto and the petitioner would term it as unwarranted judicial activism. We out rightly rejected the said contention for the reason that when a query was made by the Court to the petitioner as to how he could appear with his robes, when he is the writ petitioner appearing in person. The petitioner insisted that he is entitled to argue with his robes and submitted that he is an enrolled Advocate with the Bar Council of Tamil Nadu and is duty bound to wear the bands and gown, while appearing in the Court. This necessitated the Court to frame question with a view to afford an opportunity to the petitioner to address the Court on such issue. The Court exercising power under Article 226 is entitled to regulate its procedure with a view to ensure full and adequate opportunity to the parties. The Rules of procedure are hand maids of justice, they could be adopted, modified to suit specific requirements to achieve the ultimate object of a fair hearing. Unfortunately, the petitioner has not been able to appreciate this legal principle, which was adopted in his case to enable him to address on this issue. Therefore, we find that there is no irregularity in procedure nor this Court is prohibited from framing such preliminary question to be considered, more so, when the Writ Petition has not been dismissed on that ground, but the question was admitted only as a preliminary question and the Writ Petition continues to remain pending. 15. After elaborately hearing the petitioner, this Court passed the order dated 25.03.2014. While doing so, this Court took into consideration of one of the earliest decision of point in the case of T.Venkanna vs. The Hon'ble High Court of Mysore reported in AIR 1973 Mysore 127. In the said case, it was observed that a Barrister appearing in person has no more rights than any other complainant and he only differs from any other member of the public, when he is instructed by a solicitor on behalf of a client. In the said case, it was observed that a Barrister appearing in person has no more rights than any other complainant and he only differs from any other member of the public, when he is instructed by a solicitor on behalf of a client. This Court also took note of the decision of the Hon'ble Supreme Court in the case of Vidya Verma v. Shiv Narain, reported in AIR 1956 SC 108 , in which also, the same question came up for consideration, wherein, the Hon'ble Supreme Court declining to hear the Advocate with his robes on and observed that unless he discharged an Advocate on record, he would not be entitled to appear. This decision of the Hon'ble Supreme Court was relied on in the case of T.Venkanna (supra). Noting the observations of the Division Bench of the High Court of Mysore, wherein while considering the provision of the Advocates Act, it was observed that Section 30 of the Advocates Act confers the right on every Advocate, whose name is entered in the common roll to practise throughout the territory to which the Act extends in all courts including the Supreme Court and the Rules framed by the Court under Section 34 of the Act prescribes the mode of dress for Advocates appearing before the Court. It was held that when an Advocate whose name is entered in the rolls of the Bar Council appears before the Court as a litigant in person, he is not exercising any right under Section 30 of the Act. Therefore, it was held that there was no question of the right of the petitioner under the Act arose; no right conferred under the Act has been denied to him. Further, it was pointed out that the word 'practise' means 'the exercise of a profession' and when an Advocate is a litigant in person, he does not practise his profession and therefore, he cannot be permitted to argue with his robes on. 16. Further, it was pointed out that the word 'practise' means 'the exercise of a profession' and when an Advocate is a litigant in person, he does not practise his profession and therefore, he cannot be permitted to argue with his robes on. 16. The decision of this Court in the case of Major K.Mathews (Retd.)., vs. Registrar General, High Court of Judicature at Madras & Ors., reported in AIR 2003 Madras 411, the decision of the High Court of Karnataka in the case of M.C.S.Barna vs. C.B.Ramamurthy, reported in2002 CRI L.J.2859, and the decision of the High Court of Bombay in the case of High Court on its own Motion vs. N.B.Deshmukh reported in 2011 (2) Mh.L.J., 273, which agreed with the view taken by the Hon'ble Supreme Court in the case of T.Venkanna,(supra) were taken into consideration. Further, the High Court of Gujarat in the case of Vinayakrao S.Desai vs. Interlink Petroleum Ltd., & Ors., reported in, had also taken a similar view by placing reliance on the decision in the case of T.Venkanna (supra), and Vidya Verma vs. Shiv Narain,(supra). 17. After taking into consideration of the above referred legal position, this Court took note of the undisputed facts that the Writ Petition designed as a Public Interest Litigation was filed in the name of the petitioner and the petitioner stated that he is also aggrieved by the policy of the Union of India. Therefore, it was observed that the petitioner is pleading his own cause though under a Public Interest Litigation and therefore, he cannot seek recourse to any of the provisions of the Advocates Act, more particularly Section 30 of the Act. Therefore, it was observed that inasmuch as no question has arisen as regards the right of the petitioner under the provisions of the Advocates Act and no rights conferred on him under the Advocates Act has been denied to him, while he is appearing in person. The question of permitting him to appear with his robes on cannot be acceded to. Noting the definition of 'practise' which connotes exercise of a profession, it was observed that the petitioner and Advocate is a litigant in person and he does not practise his profession and therefore, he is not entitled to argue his case with his robes. 18. The question of permitting him to appear with his robes on cannot be acceded to. Noting the definition of 'practise' which connotes exercise of a profession, it was observed that the petitioner and Advocate is a litigant in person and he does not practise his profession and therefore, he is not entitled to argue his case with his robes. 18. The petitioner in the review petition states that the decisions relied on are defunct and in applicable and seeks to distinguish the decisions more particularly, the decision in the case of Major K.Mathews (Retd.).,(supra). 19. As referred to supra, a review is not an appeal in disguise and it follows that the power of review can be exercised for correction of a mistake, but not to substitute a view. The first and foremost requirement of entertaining a review petition is that the order, review of which is sought, suffers from any error apparent on the face of the order and permitting the order to stand in lead to failure of justice and in the absence of any such error, the finality attached to the order cannot be disturbed. A rehearing of the matter is impermissible in law and the review Court does not sit in appeal over its own order. 20. In the light of the above, the petitioner having failed to point out any error apparent on the face of the record on palpably wrong or that the order has been passed on account of some mistake or that he seeking review on the ground of discovery of new and important matter or evidence, which could not be produced at the time when the order was passed despite due diligence, the petitioner cannot maintain this review petition. As held by the Hon'ble Apex Court review cannot be cloak for rehearing which precisely what the petitioner now seeks to do by way of this review petition. In the result, the Petitioner failed to make out any grounds for rehearing the order and the Review Application is dismissed. No costs.